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Court of AppealDismissedNot expressly numbered in the judgment; Notice of Motion dated 21st August 2025 under Rule 5(2)(b) of the Court of Appeal Rules

CNG v KKN (Civil Application E496 of 2025) [2026] KECA 957 (KLR)

Court of Appeal of Kenya
15 May 2026
KKKatwa Kigen
734 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that you no longer need permission (leave) to appeal family and succession cases — the right to appeal is now automatic.

What this practically means

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Executive summary

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This is a ruling by Katwa Kigen, JA, sitting as a single judge of the Court of Appeal at Nairobi, on an omnibus notice of motion dated 21st August 2025 brought under Rule 5(2)(b) of the Court of Appeal Rules. The dispute arises from Milimani Family Division Civil Suit No. 14 of 2018, in which the High Court, by judgment delivered on 21st November 2024, found that the respondent held a 50% beneficial interest in two properties registered in the applicant's name following dissolution of their marriage. The applicant filed a notice of appeal and a record of appeal, and sought leave to appeal together with a stay of execution pending the intended appeal, contending that the trial judge erred in awarding an automatic 50:50 division without proof of contribution, relying on the Court of Appeal decision in PNN v ZWN. The respondent opposed through a replying affidavit. The court held that the leave prayer had been overtaken by events: the Supreme Court, in Eliud Mwendia Wandi v Kevin Wanjohi Muchira, delivered on 31st March 2026, declared the requirement of leave to appeal in succession matters unconstitutional and inconsistent with Article 164(3) of the Constitution, holding that the right of appeal from the High Court to the Court of Appeal is automatic unless expressly limited by statute, and that the leave practice was a judicial creation restricting access to justice. The single judge, noting that the parties' submissions addressed only the stay prayer, declined to determine the stay, and directed the parties to move the court in consultation with the deputy registrar for further progression of the appeal. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave to file an appeal in a matter arising from a family division cause touching on matrimonial property is still required
  2. 2.Whether execution of the High Court judgment should be stayed pending the intended appeal

Key legal issues

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01

Whether leave to appeal is still a prerequisite in family division/succession matters

Holding

No. The Supreme Court has declared the leave requirement unconstitutional, so the prayer for leave is moot and requires no orders

Reasoning

The single judge noted that the Supreme Court, in Eliud Mwendia Wandi v Kevin Wanjohi Muchira, delivered on 31st March 2026, held that the right of appeal from the High Court to the Court of Appeal is automatic unless expressly limited by statute, and that the judicial practice of requiring leave in succession causes unlawfully restricted access to justice. The leave prayer in this matrimonial property matter therefore no longer arises for determination.

p. 2

Legal principles established

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  • Following the Supreme Court's decision in Eliud Mwendia Wandi v Kevin Wanjohi Muchira, the right of appeal from the High Court to the Court of Appeal is automatic and leave is no longer required in succession and family division causes

Court orders

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  1. 1.The prayer for leave to file an appeal is overtaken by events and requires no orders
  2. 2.The parties, in consultation with the deputy registrar, may move the court for further progression of the appeal and related application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

KK
majority

Wrote the judgment

On appeal from
High Court of Kenya, Milimani Family Division
Civil Suit No. 14 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; jurisdiction of a single judge to consider leave, in light of Article 164(3) of the Constitution as construed by the Supreme Court

Relief refused

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Leave to appeal

Overtaken by the Supreme Court's declaration that the leave requirement in succession/family matters is unconstitutional; the right of appeal is automatic

p. 2

Stay of execution pending appeal

Not determined; as a single judge the court was only seized of the leave question, and the parties were left to move the court for further progression

p. 2

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that the application, insofar as it seeks leave to file an appeal, is overtaken by events and does not need consideration and or orders.
p. 2Disposition on leave
The Supreme Court held that the right of appeal from the High Court to the Court of Appeal is automatic, unless expressly limited by a statute, and that the practice of requiring leave to appeal in succession causes was a judicial creation that unlawfully restricted access to justice.
p. 2Automatic right of appeal; unconstitutionality of leave requirement
In the situation, the parties, in consultation with the deputy registrar, can move the court in further progression of the appeal and related application.
p. 2Final orders - further directions

Issues in the judgment

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minor

The application sought both leave to appeal and a stay of execution, but the court determined only the leave question and made no order on the stay, leaving that prayer unresolved; the outcome classification records only the leave prayer as dismissed

minor

The application is described as arising from a family division cause touching on matrimonial property, while the leave requirement discussed relates to succession causes; the judgment does not reconcile the two characterisations

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, "CNG v KKN (Civil Application E496 of 2025) [2026] KECA 957 (KLR)", Case Analysis (2026). Not expressly numbered in the judgment; Notice of Motion dated 21st August 2025 under Rule 5(2)(b) of the Court of Appeal Rules. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/957/eng@2026-05-15

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