Hannah Wairimu Ng’ethe v Rebecca Wanjiru Ng’ethe & 1 other

5. The summons is opposed by the 1ST and 2nd Respondents’ Replying affidavit dated 27th January 2025. 6. The respondents aver that the Applicant herein filed an appeal on the 6th September 2024 without leave of court or the Court of Appeal. The appeal case is active vide Civil Appeal Number E677 of 2024.That the Respondents have since filed an application at the court of appeal seeking to strike out the entire appeal for being filed without any leave of court. 7. The Respondents aver that the application before this court is an afterthought, and is meant to give life to their lifeless appeal at the Court of Appeal. 8. Both parties filed their respective submissions. Determination 9. I have considered the application, the grounds thereof, the replying affidavit by the Respondents and the respective submissions by the parties; the following issue arise for determination: i) 10. Whether leave to appeal is merited It is trite law that, in succession matters, there is no automatic right of appeal to the Court of Appeal without leave. Article 164 of the Constitution of Kenya, 2010 provides that the Court of Appeal is conferred with jurisdiction to hear appeals from the High Court. 11. The application of this provision in succession matters was explained by the Court of Appeal in Hafswa Omar Abdalla Taib & 2 Others v Swaleh Abdalla Taib [2015] eKLR where it was observed as follows; “.......We are not however oblivious to the fact that currently, Article 164(3) of the Constitution of Kenya confers direct jurisdiction in the Court of Appeal to hear appeals from the High Court and from any court or tribunal if such an appeal is prescribed by an Act of Parliament”. This court in the case of Equity Bank Ltd v West Link MBO Ltd, (App No 78/2011) considered the purport of the said Article and concluded and rightly so in our view that it did not confer unlimited right of appeal to this court which could not be restricted by statute. To hold otherwise could certainly have far reaching consequences that may affect the administration of justice generally and the functions of this court.” 12. In Rhoda Wairimu Karanja & Another vs Mary Wangui Karanja & Another [2014] eKLR the Court held, inter alia, that: “We think we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court, exercising original jurisdiction with leave of the High Court” 13. The Court of Appeal re-affirmed this position in the case of John Mwita Murimi & 2 others v Mwikabe Chacha Mwita & another [2019] eKLR held: “....it was clearly stated that in succession matters, there is no automatic right of appeal without leave of court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16646/eng@2025-09-16 2

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14. It is not in dispute that the impugned ruling in this matter arises from a succession cause and the respondents did not obtain leave to appeal. The decision in Makhangu – v- Kibwana [1996] EA cited by the respondent was succinctly considered by this Court in Rhoda Wairimu Karanja & another – v- Mary Wangui Karanja & another [2014] eKLR. In analyzing the Makhangu decision, this Court held that under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court, exercising original jurisdiction with leave of the High Court or where the application for leave is refused with leave of this Court. In the instant matter, we are satisfied that no leave of the court was obtained to file the instant appeal. The present application to strike out the record of appeal has merit” 15. The Court of Appeal concurred with the above cases in Peter Wahome Kimotho v Josphine Mwiyeria Mwanu [2014] eKLR the when Visram, Koome & Maraga, JJA (as they were) stated thus: “There is no provision for appeals from the High Court to the Court of Appeal. What are provided for are appeals from lower courts to the High Court. That is why Mr. Gikonyo argued that it was necessary for the appellant to seek leave of the Court as there was no automatic right of appeal. We must state that this is clearly a grey area as it may also be argued that Section 66 of the Civil Procedure Act is not automatically imported into the Law of Succession Act. There is also a thin line to be drawn as to whether the order appealed against was a decree or a mere dismissal order that did not amount to a decree. This is because upon the dismissal of the application for revocation, the grant was confirmed thereby resulting into a decree. Be that as it may, this appeal was filed in 2011 after the Constitution of Kenya 2010 that gives the Court of Appeal jurisdiction to hear appeals from the High Court and any other court or tribunal as prescribed by an Act of Parliament was operational. Under the Constitution, all matters from the High Court are appealable to the Court of Appeal. We therefore find that this appeal is competently before us.” 16. The applicant herein went ahead and filed an Appeal at the Court of Appeal on the 6th September 2024 before seeking leave from this court to do so. The appeal is still active at the Superior Court. 17. This court is not in a position to grant orders whose effect would appear to affect the legal position of matters already in the Court of Appeal. It cannot regulate an anomaly by granting credence to that which has already happened; it cannot grant the leave “ex post facto”. 18. In the upshot this court finds that the summons dated 12th November 2024 lacks merit and is hereby dismissed. 19. Parties to bear own costs. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2025. E.K OGOLLA JUDGE In the presence of: Mr Maina..........for the Applicant. Mr Taliti.........for the Respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16646/eng@2025-09-16 3

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Gisiele...............Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16646/eng@2025-09-16 4

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