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Court of AppealAllowedCivil Application No. NAI. E043 of 2024 (as described: Notice of Motion dated 11th March 2019)· [2026] KECA 703 (KLR)

Isaac Gathungu Wanjohi v Jackson Simei Nkaru Parteru & 1 other

Court of Appeal
25 March 2026
3,450 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a property buyer to appeal a succession ruling that validated the sale of land he says he bought from the deceased decades earlier.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on the applicant's Notice of Motion dated 11th March 2019 under Rules 5(2)(b), 39, 42 and 43 of the Court of Appeal Rules, 2010, seeking leave to appeal against a High Court judgment of 26th February 2019. The background is a succession dispute over Title No. Kajiado/Kaputiei-North/3169. The respondents obtained a Grant of Letters of Administration from the Principal Magistrate's Court at Kajiado in a 2015 succession cause, confirmed it within days, and sold the suit property to Mundia for Kshs. 67,500,000/-, even though the applicant claimed he had purchased the property from the deceased in 1993. The High Court found that the Magistrate's Court lacked pecuniary jurisdiction, revoked the Grant, but then issued and confirmed a fresh Grant in favour of the respondents, protected Mundia as a bona fide purchaser, and barred the applicant from challenging the Grant in the pending ELC suit. Before the Court of Appeal, the respondents objected on form grounds and argued the application was overtaken by events and an abuse of process. The Court rejected the formal objections, held that the intended appeal raised several arguable issues - including the propriety of issuing a fresh Grant without a petition, the failure to nullify the jurisdictionally defective Grant, the bona fide purchaser finding, and the gagging of the ELC court - and allowed the application as prayed, granting leave to appeal.

Key legal issues

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01

Formal compliance with Rules 39, 42 and 43 of the Court of Appeal Rules, 2010

Holding

The Notice of Motion, filed within 14 days of the impugned judgment and supported by affidavit, complied with the rules; absence of the superior court's ruling refusing leave was not fatal.

Reasoning

The application was brought by Notice of Motion within 14 days as required by Rules 39(b), 42 and 43(1). Rule 43(3) requires the ruling refusing leave to accompany the application only 'where practicable', making annexation non-mandatory. Objections based on form were therefore rejected.

p. 6
02

Whether the intended appeal is arguable

Holding

The intended appeal raises arguable grounds, including whether the High Court could issue and confirm a fresh Grant without a petition, and whether it could declare Mundia a bona fide purchaser while the ELC suit was pending.

Reasoning

The Court found it arguable whether the High Court, having found the Principal Magistrate's Court lacked jurisdiction, could properly issue a new Grant and confirm it without a petition; whether it should have declared the Grant and consequential transactions null and void; whether the bona fide purchaser finding was proper; and whether gagging the ELC court was right. The Sango Bay and Rhoda Wairimu Kioi threshold was met.

p. 7
03

Overtaken by events / abuse of process

Holding

The argument that the application was overtaken by events and an abuse of process was rejected.

Reasoning

The respondents argued that the High Court orders had been executed and that the appeal would confuse the pending ELC suit. The Court was not persuaded, finding the arguable jurisdictional and probate issues merited consideration notwithstanding the executed orders.

p. 7

Legal principles established

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  • Under the Law of Succession Act, appeals to the Court of Appeal from the High Court exercising original probate jurisdiction lie only with leave of the High Court or of the Court of Appeal; leave is granted where grounds merit serious judicial consideration.
  • Failure to annex the ruling of the superior court refusing leave to an application for leave is not fatal, as Rule 43(3) requires such ruling only 'where practicable'.

Court orders

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  1. 1.The application dated 11th March 2019 is allowed as prayed - leave to appeal against the High Court judgment of 26th February 2019 is granted
  2. 2.Costs of the application (not expressly stated in the judgment)
On appeal from
High Court of Kenya (Family Division) at Kajiado
Kajiado High Court Miscellaneous Application No. 49 of 2018
Jurisdiction invoked
Rules 5(2)(b), 39, 42 and 43 of the Court of Appeal Rules, 2010 (leave to appeal in succession matters)

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, "Isaac Gathungu Wanjohi v Jackson Simei Nkaru Parteru & 1 other", Case Analysis (2026). Civil Application No. NAI. E043 of 2024 (as described: Notice of Motion dated 11th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/703/eng@2026-03-25

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