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Court of AppealStruck OutCivil Application (Motion on notice) arising from Succession Cause No. 964 of 2013

Kibara v Kibara (Civil Application E083 of 2024) [2025] KECA 1091 (KLR)

Court of Appeal
20 June 2025
SKS. ole KantaiJLJ. LesiitALAli-Aroni
956 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a stay application in a succession dispute because the applicant never obtained the mandatory leave to appeal.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nyeri, delivered on 20th June 2025 by Kantai, Lesiit and Ali-Aroni, JJA, dealt with a Motion on notice by Peter Muriithi Kibara seeking a stay of execution of a ruling and subsequent Certificate of Confirmed Grant in Succession Cause No. 964 of 2013 before Mwongo, J., in the estate of Kibara Njagi, who died on 4th February 1978 leaving four wives and thus four houses under Kikuyu customary law. The High Court had found that gifts inter vivos had been made to some houses but not the fourth, and, applying section 42 of the Law of Succession Act, dismissed the protest and confirmed the petitioner's proposed mode of distribution, including distribution of land parcel Inoi/Ndimi/276. Before the Court of Appeal, the applicant relied on sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The Court noted that the Civil Procedure Act has no application in that Court save to specific provisions. The decisive point was that the applicant had never obtained leave to appeal, a prerequisite in succession matters under the Law of Succession Act. Applying its own decisions in Nkoliai v. Ololparaki and John Mwita Murimi, the Court held it lacked jurisdiction and struck out the application as incompetent, with no order on costs. The decision below was not disturbed on the merits.

Key legal issues

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01

Whether leave to appeal is a prerequisite for appeals and incidental applications in succession matters

Holding

Yes. The Law of Succession Act provides no express right of appeal to the Court of Appeal; appeals lie only with leave of the High Court or, if refused, leave of the Court of Appeal. Without leave, the Court lacks jurisdiction and the application is struck out.

Reasoning

Relying on Nkoliai v. Ololparaki and John Mwita Murimi, the Court reconciled Article 163(4) of the Constitution, section 3(1) and (2) of the Appellate Jurisdiction Act and the Law of Succession Act. Section 3(1) of the Appellate Jurisdiction Act limits appeals from the High Court to those prescribed by an Act of Parliament; the Law of Succession Act prescribes none. Since the applicant had no answer to the leave question, the Court struck out the application as incompetent.

p. 2

Legal principles established

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  • Under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal from decisions of the High Court exercising original jurisdiction; leave is a prerequisite, and an appeal or application filed without leave is incompetent and liable to be struck out.
  • The Civil Procedure Act and the Civil Procedure Rules have no application in the Court of Appeal save to specific provisions.

Court orders

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  1. 1.The application for stay of execution is struck out as being incompetent
  2. 2.No order on costs
On appeal from
High Court
Succession Cause No. 964 of 2013 (In the matter of the estate of Kibara Njagi - deceased)
Jurisdiction invoked
Article 164(3) of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010 invoked by the applicant (the Court holding the Civil Procedure Act inapplicable save to specific provisions)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kibara v Kibara (Civil Application E083 of 2024) [2025] KECA 1091 (KLR)", Case Analysis (2025). Civil Application (Motion on notice) arising from Succession Cause No. 964 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1091/eng@2025-06-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.