Kithure M’inkanatha v Zakayo Kaberia
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
The status of the right of appeal from a High Court decision in a succession matter originating in the subordinate court
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.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.