Gachigua v Mbugua & 2 others (Civil Appeal E112 of 2024) [2025] KECA 1401 (KLR)
The bottom line
#The Court of Appeal struck out a succession appeal application because the appellant never obtained the required leave to appeal first.
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 applicant has made a case for an injunction pending the hearing and determination of his intended appeal
- 2.Whether, absent leave to appeal in a succession matter from the High Court's original jurisdiction, the notice of appeal was valid and the Court's jurisdiction properly invoked
Key legal issues
#Whether the Court of Appeal's jurisdiction is properly invoked by an application under Rule 5(2)(b) where no leave to appeal has been obtained in a succession matter
The application is incompetent and struck out because a valid notice of appeal is a precondition to invoking the Court's jurisdiction, and the applicant never sought or obtained leave to appeal
The matter was a succession cause filed in the High Court's original jurisdiction. In such matters there is no automatic right of appeal to the Court of Appeal; the intending appellant must first seek leave from the High Court and, if refused, from the Court of Appeal. The applicant conceded no such step. His notice of appeal was therefore invalid, and without a valid notice of appeal the Court's jurisdiction was not properly invoked, rendering the Rule 5(2)(b) application incompetent.
Legal principles established
#- There is no automatic right of appeal to the Court of Appeal in succession matters originating in the High Court; a party must first seek and obtain leave from the High Court, failing which leave may be sought from the Court of Appeal, and without leave the notice of appeal is invalid and the Court's jurisdiction is not properly invoked
Court orders
#- 1.The notice of motion dated 5th November 2024 is struck out with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- Jurisdiction invoked
- Intended appeal from the High Court in its original succession jurisdiction, requiring leave; application under Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Injunction restraining the respondents from subdividing, transferring, charging or otherwise interfering with the suit property pending the intended appeal
The application was incompetent because the applicant had not obtained leave to appeal in a succession matter, so no valid notice of appeal existed and the Court's jurisdiction was not properly invoked
Costs
The notice of motion dated 5th November 2024 is struck out with costs to the respondents
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.
Without a valid notice of appeal, the jurisdiction of this Court has not been properly invoked. The application is incompetent.
That being the case, the notice of motion dated 5th November 2024 is struck out with costs to the respondents.
A person seeking to appeal has to seek leave from the High Court. If it is not granted, he can seek it from this Court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gachigua v Mbugua & 2 others (Civil Appeal E112 of 2024) [2025] KECA 1401 (KLR)", Case Analysis (2025). Civil Application No. Nyeri (notice of motion dated 5th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1401/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.