Mugambi & 3 others v Mugambi (Civil Application E048 of 2023) [2025] KECA 1088 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal a succession ruling without first getting leave, so the family's late appeal was struck out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants were required to obtain leave before appealing to the Court of Appeal from a decision of the High Court in succession proceedings
- 2.Whether the applicants' motion for extension of time to file an appeal out of time was competent in the absence of such leave
Key legal issues
#Whether leave to appeal is a prerequisite for an appeal to the Court of Appeal from a succession cause decided by the High Court
Yes. The Law of Succession Act provides no express right of appeal; an appeal lies only with leave of the High Court or, if refused, with leave of the Court of Appeal. Without leave, the Court lacks jurisdiction.
The court adopted its prior reasoning in Nkoliai v Ololparaki and John Mwita Murimi, which analysed Makhangu v Kibwana. Under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal; section 3(1) of the Appellate Jurisdiction Act limits appeals to those prescribed by an Act of Parliament, while article 164(3) confers jurisdiction only over appeals as so prescribed. Leave is therefore a jurisdictional pre-requisite, not a procedural formality.
Whether the applicants' motion for extension of time was competent
No. Because the requisite leave had not been obtained, the application was incompetent and was struck out.
The applicants sought leave to appeal out of time without having first obtained the leave that is a pre-condition to any appeal. The respondent correctly pointed out that the notice of appeal filed on 18th December 2022 was void ab initio since leave had not been granted. The court held that the applicants were required to obtain leave of the High Court or, if refused, apply to the Court of Appeal under its rules; failing that, the application could not stand.
Legal principles established
#- There is no automatic right of appeal to the Court of Appeal from a decision of the High Court sitting as a succession court; leave of the High Court, or of the Court of Appeal where that leave is refused, is a prerequisite
- A notice of appeal filed in a succession matter without the requisite leave is a nullity
Court orders
#- 1.The applicants' motion seeking leave to file and serve an appeal out of time is struck out as incompetent
- 2.Costs of the Motion awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Succession Cause No. 196 of 1998
- Jurisdiction invoked
- Rules 39, 41 and 42 of the Court of Appeal Rules, 2010; the appeal right in succession matters being governed by article 164(3) of the Constitution as prescribed by an Act of Parliament, subject to leave under the Law of Succession Act and the Appellate Jurisdiction Act
Relief refused
#Leave to file and serve an appeal out of time; deemed filing of notice of appeal; leave to file record of appeal out of time
The applicants lacked an automatic right of appeal from a High Court succession decision and had not obtained the requisite leave, rendering the application incompetent
Costs
Costs of the Motion awarded to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicants do not have an automatic right of appeal to this Court from a decision of the High Court sitting as a succession court. They required to obtain leave of that court or if such leave is refused, apply to this Court as required by our rules.
The application is therefore incompetent and is hereby struck out. We award costs of the Motion to the respondent.
It is our conclusion that leave to appeal was a pre-requisite in the present appeal. We note that the same was not obtained prior to filing of this appeal. Consequently, this Court lacks the requisite jurisdiction to hear and determine this appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugambi & 3 others v Mugambi (Civil Application E048 of 2023) [2025] KECA 1088 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1088/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.