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Court of AppealStruck OutNot stated in the judgment· [2025] KECA 1429 (KLR)

Kithure M’inkanatha v Zakayo Kaberia

Court of Appeal of Kenya
31 July 2025
1,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out a succession appeal because the appellant never obtained the mandatory leave to appeal, so the High Court's land distribution decision stands.

What this practically means

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Executive summary

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The appellant, Kithure M'Inkanatha, appealed against a High Court at Meru judgment of 29th November 2018 in a succession dispute over the estate of Elijah M'Ikanatha Baithaki. The High Court had appointed both the appellant and the respondent, Zakayo Kaberia, as administrators of the estate and ordered distribution of 2.6 acres of LR No Ithima/Ntunene/20 to the respondent, on the basis that the deceased had held his brother's land in trust and that the respondent, as the sole heir of that line, was entitled to it. The appellant challenged the appointment of a 'stranger' as co-administrator and the inference of a trust. Before reaching the merits, the Court of Appeal addressed a jurisdictional objection raised by the respondent: no leave to appeal had been sought or obtained before the appeal was lodged. Reviewing section 50 of the Law of Succession Act, the Court noted that decisions of the High Court on appeal from the Magistrates' Courts are final and that the Act provides no automatic right of appeal to the Court of Appeal. Following the settled line of authority from Makhangu v Kibwana through Rhoda Wairimu Karanja and John Mwita Murimi, the Court held that an appeal nonetheless lies from the High Court sitting appellately, but only with leave. It concluded that leave was a prerequisite, that none had been obtained, and that the stay of execution granted by the High Court did not translate into leave. Lacking jurisdiction, the Court struck out the appeal with costs to the respondent, without expressing any view on the merits of the distribution ordered below. The High Court judgment therefore stands undisturbed.

Key legal issues

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01

Whether the Court of Appeal has jurisdiction to entertain an appeal from the High Court in succession proceedings where leave to appeal was not obtained

Holding

Leave to appeal was a prerequisite; absent leave, the Court lacks jurisdiction, and a stay of execution granted by the High Court did not amount to leave.

Reasoning

Section 50(1) of the Law of Succession Act makes the High Court's decisions on appeal from the Magistrates' Courts final and provides no automatic appeal to the Court of Appeal. Following Makhangu v Kibwana and John Mwita Murimi, an appeal from the High Court exercising appellate jurisdiction lies only with leave of the High Court or, if refused, leave of the Court of Appeal. Because jurisdiction is donated by Constitution or statute and cannot be assumed, the appeal, filed without leave, had to be struck out.

p. 4
02

The status of the right of appeal from a High Court decision in a succession matter originating in the subordinate court

Holding

There is no express automatic right of appeal to the Court of Appeal under the Law of Succession Act; an appeal lies only with leave, and the judgment notes that whether such an appeal is as of right or requires leave remains unsettled, so prudence dictates obtaining leave.

Reasoning

The Court reviewed section 50, which permits appeals to this Court only from Kadhi's Court matters on points of Muslim law with prior leave. It then surveyed the settled line of authority (Makhangu, Rhoda Wairimu Karanja, Sophia Salim Gathiaka) establishing that an appeal nonetheless lies from the High Court sitting appellately, while acknowledging the as-of-right versus leave question is unsettled. It endorsed the John Mwita Murimi formulation requiring leave.

p. 3

Legal principles established

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  • An appeal lies to the Court of Appeal from a decision of the High Court sitting as an appellate court over subordinate-court succession matters, but leave is a prerequisite; a grant of stay of execution by the High Court does not translate into leave to appeal.
  • A court's jurisdiction is conferred only by the Constitution or statute and cannot be assumed by fiat or at the behest of litigants.

Court orders

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  1. 1.The appeal is struck out with costs to the respondent.
On appeal from
High Court of Kenya at Meru
Not stated in the judgment
Jurisdiction invoked
The Court determined its own jurisdiction under section 50 of the Law of Succession Act; the appeal was struck out because leave to appeal, a prerequisite, had not been obtained.

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, "Kithure M’inkanatha v Zakayo Kaberia", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1429/eng@2025-07-31

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