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High CourtPartially AllowedApplication dated 29th January 2019 (Summons under Rules 49 and 73 of the P&A Rules)· [2020] KEHC 6004 (KLR)

In re Estate of the Deceased - John Mutegi Mburire (Applicant) v Joyce Mbinyu Mbaka (Respondent)

High Court of Kenya
6 May 2020
RLR.K. Limo
939 words in judgment
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The bottom line

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To appeal a probate decision in Kenya, you must get the High Court's permission, but you might not be able to stop the estate's distribution while waiting.

What this practically means

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Executive summary

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This is a ruling on an application dated 29th January 2019 brought by John Mutegi Mburire by way of summons under Rules 49 and 73 of the Probate and Administration Rules in a succession matter. The applicant sought leave to appeal to the Court of Appeal at Nyeri against the whole judgment of the High Court, a stay of execution/implementation of the certificate of confirmation of grant made to the petitioner (Joyce Mbinyu Mbaka) on 23rd January 2019, and costs. He argued that his right of appeal was anchored on the right of access to justice under Article 48 of the Constitution and listed proposed grounds of appeal, including whether the deceased died on 24th December 1995, whether he left a varied oral will, and whether the distribution ordered accorded with the deceased's wishes. The respondent opposed through a replying affidavit sworn on 2nd August 2019, contending that the applicant had filed a notice of appeal without leave, had shown no serious ground of appeal, and was only seeking to delay implementation of the decision while being the sole person utilising the estate. The court held that there is no automatic right of appeal to the Court of Appeal in probate matters; leave lies at the court's discretion. Applying the Court of Appeal's test in Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another, it found the oral will question not frivolous and granted leave, with 21 days to lodge the appeal, failing which the leave would abate. However, it refused the stay of execution, finding the applicant had not demonstrated sufficient prejudice since the other beneficiaries were entitled to enjoy the fruits of their litigation. Costs of the application were ordered to abide the decision of the Court of Appeal. The ruling was delivered on 6th May 2020 by R.K. Limo J.

Key legal issues

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01

Whether leave to appeal to the Court of Appeal in a probate matter should be granted

Holding

Leave was granted because the applicant raised a non-frivolous issue - whether the deceased made an oral will and whether the distribution accorded with it - which merits reconsideration by the Court of Appeal.

Reasoning

The court applied the test in Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another that leave is granted where prima facie there are grounds meriting serious judicial consideration. It found the oral will question not frivolous and exercised its discretion in the applicant's favour, allowing 21 days to lodge the appeal.

p. 2
02

Whether stay of execution of the certificate of confirmation of grant should issue

Holding

Stay was refused because the applicant failed to demonstrate sufficient prejudice; the other beneficiaries' enjoyment of their right to a share in the estate would not bar or prejudice the appeal.

Reasoning

The court weighed the applicant's claim that his house would be demolished against the respondents' right to enjoy the fruits of litigation. It found the beneficiaries had every right to a share in the estate and that implementing the grant would not prejudice the applicant's pursuit of the appeal, so the stay prayer failed.

p. 2

Legal principles established

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  • An aggrieved party does not have an automatic right of appeal to the Court of Appeal from a decision of the High Court in probate matters; such an appeal lies only with leave of the High Court.
  • Leave to appeal will normally be granted where prima facie there appear to be grounds which merit serious judicial consideration.

Court orders

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  1. 1.The Applicant is granted leave by this court to appeal to the Court of Appeal and has 21 days to do so; in default the leave granted shall abate
  2. 2.The prayer for stay of execution of the certificate of confirmation is disallowed
  3. 3.Costs of this application shall abide by the decision of the Court of Appeal

Authorities

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Legislation

  • Probate and Administration RulesRule 49
  • Probate and Administration RulesRule 73
  • Constitution of KenyaArticle 48

Cases cited (1)

  • Rhoda Wairimu Karanja & Another -vs- Mary Wangui Karanja & Another
    [2014] eKLR

    Leave to appeal will normally be granted where prima facie there are grounds which merit serious judicial consideration.

Jurisdiction invoked
Probate and Administration Rules, Rules 49 and 73 (succession cause; leave to appeal in probate matters lies with leave of 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 - John Mutegi Mburire (Applicant) v Joyce Mbinyu Mbaka (Respondent)", Case Analysis (2020). Application dated 29th January 2019 (Summons under Rules 49 and 73 of the P&A Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/6004/eng@2020-05-06

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