Rural Housing Estates v Sophia Cherotich Sisiwa & 3 others
The bottom line
#Kenya's Court of Appeal struck out an injunction application in a succession dispute because the applicant could not prove with evidence that leave to appeal had been obtained.
What this practically means
#Executive summary
#Key legal issues
#Jurisdictional prerequisite of leave to appeal in succession matters
Without proof that leave to appeal was sought and granted, the Court lacks jurisdiction and the application is incompetent and must be struck out
The Court adopted its prior decision in Mughal & Rashid v Bhola holding that a right of appeal exists only where expressly provided by statute, and that where leave is required it must be sought and obtained in the first instance or granted by the Court of Appeal if refused. Citing Newlands Surgical Clinic, leave is a jurisdictional fact. No evidence of the grant of leave was placed before the Court; counsel's assertion from the bar had no probative value.
Whether counsel's oral statement from the bar can prove a fact
Assertions by an advocate from the bar on evidentiary matters are unprocedural and lack probative value; affidavit evidence must be adduced
When asked whether leave had been granted, Mr. Ogutu stated from the bar that leave was granted on 13th June 2025. The Court held that an advocate cannot give evidence on behalf of a client through submissions from the bar; the applicant ought to have attached affidavit evidence to prove the grant of leave.
Legal principles established
#- An appeal to the Court of Appeal must lie under a written law; where leave is required, it must be sought and obtained before the appeal is competent - leave is a jurisdictional fact without which the Court has no jurisdiction
Court orders
#- 1.The Notice of Motion dated 13th January 2025 is struck out
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya at Eldoret
- Succession Cause No. 167 of 1998 (In the matter of the estate of the late Maiakwen Sisiwa, deceased)
- Jurisdiction invoked
- Articles 50, 159(2)(d) and 164 of the Constitution; sections 3 and 3A of the Appellate Jurisdiction Act; Rules 5(2)(b), 44, 45 and 49 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rural Housing Estates v Sophia Cherotich Sisiwa & 3 others", Case Analysis (2025). Eldoret Civil Application (as per Notice of Motion dated 13th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2041/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.