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Court of AppealAllowedMiscellaneous Application (Kisumu Court of Appeal) - Notice of Motion dated 24th November 2025· [2026] KECA 762 (KLR)

Benson Bwakali Otande & 3 others v Margaret Anyonje Akhonya

Court of Appeal of Kenya
24 April 2026
HOH. A. Omondi
2,429 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that Kenyans can appeal High Court succession decisions without needing permission first, reviving a family's stalled estate dispute.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu by H. A. Omondi, JA, delivered on 24th April 2026 in a succession dispute arising from the estate of Josephat Otande Okuku, who died intestate on 3rd May 1988 leaving three widows and several children. The High Court at Kakamega, in a judgment delivered on 4th April 2019 in Kakamega High Court Succession Cause No. 3 of 2007, found there was no proof of a will and ordered equal distribution of the estate among all spouses and children of the polygamous family. Aggrieved, the applicants from the 3rd house lodged Kisumu Court of Appeal Civil Appeal No. 65 of 2020, but the appeal was withdrawn on 3rd November 2025 because counsel had not obtained leave to appeal, under the then-prevailing jurisprudence that succession appeals from the High Court's original jurisdiction required leave. The applicants then moved by Notice of Motion dated 24th November 2025 under rules 4, 44 and 45 of the Court of Appeal Rules for leave to appeal and extension of time. The respondent opposed, citing a six-year inordinate delay, the 14-day window under rule 41, counsel's professional negligence, prejudice, and the policy that litigation must end. The court, relying on the Supreme Court's decision in Eliud Mwendia Wandia v Kevin Wanjohi Muchira ([2026] KESC 29 (KLR)), held that there is no legal basis for requiring leave to appeal from High Court succession decisions, since such appeals lie as of right, and that any contrary position would offend Article 27(1). Applying the Leo Sila Mutiso extension-of-time factors and finding the applicants' appeal had been 'strangled' by the now-corrected jurisprudence, the court held that the applicants need not seek leave; they should simply approach the court to set aside the earlier direction and set their appeal down for hearing. No costs order was made. The binding proposition for lower courts is that succession appeals from the High Court's original jurisdiction lie to the Court of Appeal as of right.

Key legal issues

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01

Whether leave to appeal is required for appeals to the Court of Appeal from the High Court in succession matters

Holding

No leave is required; the Supreme Court has held that such appeals lie as of right, and the applicants in this matter therefore need not seek leave.

Reasoning

The court recounted the earlier jurisprudence (Rhoda Wairimu Karanja; John Mwita Murimi) requiring leave, but noted the Supreme Court's recent decision in Eliud Mwendia Wandia v Kevin Wanjohi Muchira which struck down the leave requirement as unanchored in the Constitution or statute, invoking Section 50(1) of the Law of Succession Act and Article 27(1). This judgment binds lower courts and resolves the applicants' predicament.

p. 5
02

Whether the applicants' delay and earlier procedural default warranted indulgence

Holding

The applicants' default was not attributable to their own deliberate conduct; their appeal was 'strangled' by the previously prevailing (but now corrected) jurisprudence requiring leave, justifying relief.

Reasoning

The court applied the Leo Sila Mutiso factors. The applicants had timeously filed an appeal (Kisumu Civil Appeal 65 of 2020) which was withdrawn only because it lacked leave under the then-prevailing jurisprudence. With the Supreme Court having removed the leave requirement, the obstacle to the appeal has been lifted, and the applicants were told simply to approach the court to set the earlier direction aside and fix the appeal for hearing.

p. 5

Legal principles established

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  • An appeal to the Court of Appeal from a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter lies as of right, without leave.
  • The court's discretion under Rule 4 of the Court of Appeal Rules to extend time is unfettered but must be exercised judiciously, guided by the length of delay, reasons for delay, chances of appeal succeeding and prejudice to the respondent.

Court orders

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  1. 1.Applicants need not seek leave to appeal; the requirement of leave in succession matters has no legal basis following the Supreme Court's decision in Eliud Mwendia Wandia v Kevin Wanjohi Muchira
  2. 2.Applicants may approach the Court to seek setting aside of the earlier direction (misdirection?) and set their appeal for hearing
On appeal from
High Court of Kenya at Kakamega
Succession Cause No. 3 of 2007
Jurisdiction invoked
Rule 4, 44 and 45 of the Court of Appeal Rules (extension of time and incidental applications)

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, "Benson Bwakali Otande & 3 others v Margaret Anyonje Akhonya", Case Analysis (2026). Miscellaneous Application (Kisumu Court of Appeal) - Notice of Motion dated 24th November 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/762/eng@2026-04-24

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