Francis Wesonga Odipo & Another v Ali Omondi Malachi & Another

The Supreme Court in Wandi vs Muchira held that neither the Law of Succession Act nor the Probate and Administration Rules contain any express provision requiring leave for such appeals. Where Parliament intends to require leave it does so expressly; the requirement cannot be implied from statutory silence. A restrictive interpretation denying a right of appeal would undermine equality and access to justice under Articles 27(1) and 20(3)(a) of the Constitution. The Court of Appeal is bound by that decision.

A succession court's primary jurisdiction is identifying and distributing a deceased's estate to rightful beneficiaries. Where a claimant is not a beneficiary but asserts outright ownership of the deceased's land through a trust, the dispute becomes one of title to land, falling within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution. The trial court erred in examining the trust and distributing land to the 1st respondent on that basis.

Relying on Jamal Salim v Yusuf Abdulahi Abdi and Macharia v Kenya Commercial Bank, the court held that jurisdiction flows from the Constitution or legislation, cannot be conferred by consent or acquiescence, and a jurisdictional defect renders any resulting judgment a nullity. Although the appellants did not raise the objection in the trial court, the objection was properly before the appellate court.