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High CourtPartially AllowedRunyenjes Misc. App. Case No. 3 of 2016 (High Court succession cause; Notice of Appeal dated 22/10/2019)· [2020] KEHC 2381 (KLR)

In re Estate of the Deceased - Application to Strike Out Notice of Appeal (Njeru Ithiga for the Respondent)

High Court of Kenya
22 October 2020
FMF. Muchemi
937 words in judgment
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The bottom line

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The High Court confirmed that its decisions in succession matters are final and cannot be appealed further to the Court of Appeal.

What this practically means

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Executive summary

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The applicant, through Njeru Ithiga & Co. Advocates, applied to strike out a Notice of Appeal dated 22/10/2019 lodged by the respondent/appellant seeking to appeal to the Court of Appeal from the High Court's judgment of 17/10/2019, which had dismissed the appellant's appeal in Runyenjes Misc. App. Case No. 3 of 2016 from the subordinate court's ruling of 9/11/2017. The applicant argued that under section 50 of the Law of Succession Act no appeal lies from the High Court's final decision in probate appellate matters, and that the Notice of Appeal was an abuse of process impeding execution of the subordinate court's orders. The applicant relied on the Court of Appeal decision in Francis Gachoki Murage vs Juliana Wainoi Kinyua, and the court also cited Rhoda Wairimu Karanja & another v Mary Wangui Karanja. The appellant was served and directed to file submissions but did not attend or respond. Muchemi J held that section 50(1) makes the High Court's decision on appeal from a Resident Magistrate in estate matters final, that the Court of Appeal authorities were binding, and that the appellant had no right of appeal as purported. The Notice of Appeal was struck out, with costs awarded (as printed) to the appellant. The application to remit the subordinate court file was not expressly granted in the operative order.

Key legal issues

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01

Whether a Notice of Appeal to the Court of Appeal from the High Court's appellate decision in a succession matter is competent

Holding

It is incompetent; section 50(1) makes the High Court's decision final, and the Notice of Appeal was struck out.

Reasoning

The court applied section 50(1) of the Law of Succession Act and binding Court of Appeal authorities (Francis Gachoki Murage and Rhoda Wairimu Karanja) holding that decisions of the High Court on appeal from magistrates' courts in estate matters are final and no second appeal lies. The appellant, though served and given opportunity to file submissions, did not respond. The Notice of Appeal was found to be an impediment to execution and possibly intended to delay justice to other beneficiaries.

p. 2
02

Whether the appellant was afforded a fair hearing before the Notice of Appeal was struck out

Holding

Yes; the appellant was served with the letter and mention date and directed to file submissions but failed to attend or respond.

Reasoning

The court recorded that the appellant was served with the letter from Njeru Ithiga & Co. Advocates requesting directions on the Notice of Appeal, was served with the mention date of 05/10/2020, and was directed on 18.08.2020 to file submissions on the competency issue but filed none. The court therefore concluded the constitutional right to be heard was granted but not exercised.

p. 2

Legal principles established

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  • Under section 50(1) of the Law of Succession Act, an appeal lies to the High Court from a Resident Magistrate's decision in respect of an estate, and the decision of the High Court thereon is final - no appeal lies to the Court of Appeal from the High Court exercising appellate jurisdiction in probate matters.

Court orders

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  1. 1.The Notice of Appeal filed by the Respondent dated 22/10/2019 is struck out
  2. 2.Costs to the appellant (as stated in the judgment)

Authorities

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Legislation

  • Law of Succession Actsection 50(1)

Cases cited (4)

  • Francis Gachoki Murage vs Juliana Wainoi Kinyua & Another
    [2010] eKLR

    Appeal to Court of Appeal from High Court exercising appellate jurisdiction in probate matters does not lie under section 50(1)

  • Kaboi vs Kaboi & Others
    [2003] 2 EA 472

    Distinguished within Murage: High Court exercising original, not appellate, jurisdiction

  • Makhangu vs Kibwana

    Distinguished within Murage: High Court exercising original, not appellate, jurisdiction

  • Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another
    [2014] eKLR

    Reiterating that section 50 makes the High Court's decision on appeal from magistrates' courts final

On appeal from
Resident Magistrate's Court, Runyenjes
Runyenjes Misc. App. Case No. 3 of 2016
Jurisdiction invoked
Section 50(1) of the Law of Succession Act - appellate jurisdiction over magistrates' courts in succession matters, with finality in the High Court

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, "In re Estate of the Deceased - Application to Strike Out Notice of Appeal (Njeru Ithiga for the Respondent)", Case Analysis (2020). Runyenjes Misc. App. Case No. 3 of 2016 (High Court succession cause; Notice of Appeal dated 22/10/2019). Source:

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