In re Estate of the late [deceased] - Application by the 2nd Petitioner for leave to appeal and stay of execution
The bottom line
#You can appeal a High Court decision in a succession case, but you must get the court's permission first.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal to the Court of Appeal is required in succession matters
Yes; leave of the High Court is required and the court is seized of jurisdiction to grant it despite the Respondent's contrary averments.
The court adopted the Court of Appeal's holding in Rhoda Wairimu Kioi that there is no automatic right of appeal under the Law of Succession Act. The Applicant's earlier notice of appeal was procedurally wrong because it did not seek leave. The court found the application made within reasonable time and the Applicant's intention to appeal evidenced by the timely notice of appeal.
Whether stay of execution should issue pending the intended appeal
Stay refused; the Applicant demonstrated no loss, and the beneficiaries including the church should enjoy the estate.
The court found no evidence of harm to the Respondents from granting leave, and conversely no evidence that the Applicant would suffer loss if the judgment were implemented. The Applicant was already enjoying use of Kakamega/Mabusi/18 while the Respondent stayed in Kisumu. The appellate court retains liberty to make far-reaching orders if the judgment is found untenable.
Legal principles established
#- Under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal from a High Court decision in probate and administration; leave of the High Court (or the Court of Appeal on refusal) is required, and leave is normally granted where prima facie grounds merit serious judicial consideration.
Court orders
#- 1.The Applicant is granted leave to file the notice of appeal within 14 days from the date of the ruling and the main appeal out of time
- 2.The Applicant's prayer for stay of execution pending appeal is rejected
- 3.Costs of the application to the Respondents
- Jurisdiction invoked
- Inherent jurisdiction of the High Court sitting in original succession jurisdiction under the Law of Succession Act to grant leave to appeal to the Court of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of the late [deceased] - Application by the 2nd Petitioner for leave to appeal and stay of execution", Case Analysis (2020). Not stated in the judgment (succession cause, Kitale High Court). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.