In re Estate of the late (Succession Cause) - Objectors/Applicants v Administrator/Respondent
The bottom line
#In Kenyan succession cases, failing to meet deadlines or explain delays can result in your appeal being dismissed.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought under the correct provisions of the law
The application was brought under the wrong provisions (Civil Procedure Act and Rules), but the court excused this as a procedural lapse in favour of substantive justice under Article 159(2)(d)
The court held that the Law of Succession Act is self-containing and governs all succession matters, with the Civil Procedure Rules entering only via Rule 63 of the Probate and Administration Rules. The provisions cited by the Applicants were not permitted under Rule 63. Nonetheless, the court treated the error as a technicality excusable under Article 159(2)(d), so the Applicants passed the first hurdle.
Whether the Notice of Appeal already filed without leave is sustainable
The Notice of Appeal filed without leave is incompetent, bad in law, and has no force of law
The court found it improper for the Applicants to file a Notice of Appeal and then return to seek leave. Counsel for the Applicants conceded the impropriety. The notice, though lodged at the Court of Appeal registry, cannot be relied upon for want of leave.
Whether an adequate explanation for the delay was given
No good reasons were given; the blame-shifting to the former advocate failed because the present counsel lodged the Notice of Appeal and did nothing for about four months
Applying the First American Bank v Shah principles, the court found the record contradicted the claim that the former advocates were at fault: the present advocates filed a change of advocates and Notice of Appeal on 9/08/2019 but took no steps until 6/11/2019. The delay of almost four months rendered the application an afterthought.
Whether the Respondent would suffer prejudice
Costs would not adequately compensate the Respondent, who remains unable to access the property allocated to her or receive rent from it
The succession cause, filed in 1994, needed closure. Granting leave would delay finalisation and keep the Respondent out of the property (LR 337/449 Athi River) allocated to her absolutely by the confirmed grant of 30/09/2014, so an award of costs would be inadequate compensation.
Legal principles established
#- Under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal; leave of the High Court is required and is granted where prima facie there are grounds meriting serious judicial consideration
- The Law of Succession Act is self-sufficient with its own substantive law and rules of procedure; the Civil Procedure Rules enter only through Rule 63 of the Probate and Administration Rules
- A Notice of Appeal filed without the requisite leave of the High Court is incompetent and has no force of law
Court orders
#- 1.The Applicants' Notice of Motion dated 6/11/2019 is dismissed
- 2.Each party to bear their own costs as parties are members of one family
- Jurisdiction invoked
- Section 50 of the Law of Succession Act (leave to appeal from the High Court to the Court of Appeal); Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of the late (Succession Cause) - Objectors/Applicants v Administrator/Respondent", Case Analysis (2020). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.