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Court of AppealStruck OutSuccession Appeal (Amended Record of Appeal dated 29th January 2025)· [2026] KECA 133 (KLR)

Jane Njeri Mungai & 2 others v Susan Wanjiru Aka Susan Naipono Letuya & 1 other

Court of Appeal of Kenya
30 January 2026
1,209 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a family estate appeal over procedural defects, but left the door open for the parties to file fresh, properly constituted appeals.

What this practically means

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Executive summary

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The Court of Appeal struck out an appeal concerning the estate of Samuel Ngugi Mbugua (Deceased) without engaging the merits. The appeal, brought on an Amended Record of Appeal following the abatement of the original appeal upon the death of the original respondents (the executors of the deceased's will), suffered from three fatal defects. First, the 1st respondent, Susan Wanjiru, who had originally been an appellant alongside her mother and siblings against the decision favouring the executors, could not be substituted as a respondent in the appeal against that same decision, as this would place her in diametrically opposed positions on the same issues. Second, the appellants filed a single memorandum of appeal challenging two distinct rulings: Musyoka J.'s decision of 30th June 2017 in High Court Succession Cause No. 1574 of 2006 dismissing an application for revocation of a grant, and Nyakundi J.'s ruling of 18th April 2018 in Succession Cause No. 45 of 2017 making provision of one acre to the 1st appellant. Two decisions, two courts, two different claims and two separate notices of appeal could not be combined in one appeal. Third, no Certificate of Delay existed for the Musyoka J. decision, so the appeal against it, filed outside the 60-day period under rule 84(1), was incompetent. At the hearing it also emerged that the 2nd appellant, Martin Mungai, was deceased. Weighing these defects against the family context, the court struck out the appeal, deliberately leaving the merits untouched so the parties could pursue proper procedural paths. No order as to costs was made.

Key legal issues

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01

Capacity of a party to be both appellant and respondent in the same appeal

Holding

A party who appealed against a decision cannot be substituted as a respondent in the appeal against that same decision.

Reasoning

The 1st respondent had, with her mother and siblings, appealed against the decision in favour of the original respondents. Substituting her as a respondent in that very appeal would place her in diametrically opposed positions on the same issues, which is untenable.

p. 2
02

Competence of a single appeal against two distinct decisions

Holding

A common memorandum of appeal against two separate rulings, delivered on different dates in different succession causes and with separate notices of appeal, is incompetent.

Reasoning

Each decision attracted its own notice of appeal and required a separate appeal filed within 60 days under rule 84(1). No Certificate of Delay existed for the Musyoka J. ruling, so no competent appeal lay against it, and a single appeal could not encompass both.

p. 2
03

Remedy where appeal is incompetent in a succession matter

Holding

The appropriate course was to strike out the appeal without touching the merits, leaving the parties free to pursue proper procedural paths.

Reasoning

Weighing the competence defects against the family context and access to justice, the court chose striking out over dismissal on merits, expressly preserving the parties' ability to agitate their grievances afresh.

p. 3

Legal principles established

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  • A single memorandum of appeal cannot competently challenge two distinct decisions rendered on different dates, by different courts, on different claims, with different notices of appeal.
  • A person who is an appellant against a decision cannot simultaneously be substituted as a respondent in the same appeal, taking diametrically opposed positions on the issues in contention.
  • An appeal must be filed within 60 days of the notice of appeal under rule 84(1) of the Court of Appeal Rules, and absent a Certificate of Delay there can be no competent appeal.

Court orders

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  1. 1.The appellants' appeal is struck out
  2. 2.No order as to costs
On appeal from
High Court of Kenya
High Court Succession Cause No. 1574 of 2006 and Succession Cause No. 45 of 2017 (Kajiado)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (rule 84(1) on filing of appeals) in a succession matter

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, "Jane Njeri Mungai & 2 others v Susan Wanjiru Aka Susan Naipono Letuya & 1 other", Case Analysis (2026). Succession Appeal (Amended Record of Appeal dated 29th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/133/eng@2026-01-30

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