https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6700

In re Estate of Kipngeno arap Mibei (Deceased) (Succession Appeal E032 of 2024) [2026] KEHC 6700 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEHC 6700 (KLR) Republic of Kenya In the High Court at Bomet Succession Appeal E032 of 2024 JK Ng'arng'ar, J May 19, 2026 IN THE MATTER OF THE ESTATE OF THE LATE KIPNGENO ARAP MIBEI (DECEASED) Between Philip Kipkurui Ngeno 1st Applicant Lilian Chepkorir 2nd Applicant and Winnie Mibei 1st Respondent Betty Chemutai 2nd Respondent Ruling 1.The Applicants filed their Application dated 15th October 2025 seeking the following orders: -I.Spent.II.That leave be granted to the Appellants to appeal to the Court of Appeal against the decision of Justice Julius K. Ng’arng’ar delivered on 7th October 2025.III.That the Notice of Appeal dated 13th October 2025 be deemed as duly filed and leave be granted to serve the Notice of Appeal upon the Respondents. 2.The Application was brought under Rules 49, 59 and 73 of the Probate and Administration Rules and Articles 48 and 50 of the Constitution of Kenya 2010. The Application was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Philip Kipkurui Ngeno on 15th October 2025. The Applicants’ case. 3.The Applicants stated that Judgement was entered against him on 7th October 2025 and they were dissatisfied with the decision. That the right of Appeal in Probate and Administration matters was not automatic as one had to seek and obtain leave of court before an Appeal was filed. The Applicants further stated that by dint of Articles 48 and 50 of the Constitution of Kenya, they had a right to appeal to the higher court. 4.It was the Applicants’ case that section 50 of the Law of Succession Act made the decision of the High Court final but superior courts had held that to deny a party the right to appeal would be violating Articles 48 and 50 of the Constitution of Kenya. It was the Applicants’ case that they had a strong arguable appeal which had a high chance of success and ought to be given a chance to exercise their right of Appeal. 5.Through their written submissions dated 12th November 2025, the Applicants submitted that the finality clause in section 50 (1) of the Law of Succession Act did not oust the jurisdiction of the Court of Appeal to hear and determine an Appeal. They relied on Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another [2014] KECA 255 (KLR), re Estate of Geoffrey Githigi Kanyigi (Deceased) (Civil Appeal E019 of 2023) [2025] KEHC 9951 (KLR) (10 July 2025) et.al. That this court retained discretion to grant leave to appeal where the Applicant has demonstrated or raised arguable grounds. 6.It was the Applicants’ submission that denying them the right to appeal would be akin to shutting the doors of justice. That the Respondents would suffer no prejudice if the leave was to be granted. Response 7.Through their Replying Affidavit dated 11th March 2026, the Respondents stated that the Application had been overtaken by events and was frivolous. That the Application was against the provisions of section 50(1) of the Law of Succession Act as this court dealt with the matter as an appellate court and not the trial court. 8.Through their written submissions dated 11th March 2026, the Respondents submitted that this court’s Judgement dated 7th October 2025 was final and binding as per the provisions of section 50(1) of the Law of Succession Act. They relied on re Estate of Esther Wanjiru Ng’ang’a (Deceased) [2024] KEHC 9197 (KLR). The Respondents further submitted that this court’s decision upheld the lower court’s Ruling on the distribution of the estate. That the draft Memorandum of Appeal had no concrete grounds for consideration by the Court of Appeal. They relied on re Estate of M’Murong’a Alias Murong’a Mungania (Deceased) [2025] KEHC 14793 (KLR). 9.I have gone through and considered the Application dated 15th October 2025, the Respondents’ Replying Affidavit dated 11th March 2026, the Applicants’ written submissions dated 12th November 2025 and the Respondents’ written submissions dated 11th March 2026. The sole issue for my determination was whether this court should grant the Applicants’ leave to Appeal this court’s Judgement dated 7th October 2025. 10.The impugned Judgement dated 7th October 2025 arose from an impugned Ruling dated 17th December 2024 in Bomet Magistrate’s Court Succession Cause Number 46 of 2020. This court upheld the trial court’s Ruling and dismissed the Applicant’s Appeal. The Applicants are now before this court to seek leave to Appeal the impugned Judgement to the Court of Appeal. 11.Section 50 of the Law of Succession Act provides: -(1)An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.(2)An appeal shall lie to the High Court in respect of any order or decree made by a Kadhi's Court in respect of the estate of a deceased Muslim and, with the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal. 12.While expounding the above provisions of the law, Sergon J. in Rotich v Rotich & 3 others [2024] KEHC 7229 (KLR) held: -“The above section 50 (1) of the Law of Succession Act is clear and it needs no further elaboration. It speaks to the finality to the proceedings in succession matters from the Magistrate’s court to the High Court on appeal. The Court of Appeal in Josephine Wambui Wanyoike v Margaret Wanjiru Kamau [2013] eKLR, held that the Law of Succession Act is a self-sufficient Act of Parliament with its own substantive law and rules of procedure.A similar situation arose in Alexander Dismas Kosegi v Grace Chebor Muhena & Another and Jacob Buhangi Elaki & 16 Others (Interested Parties) [2020] eKLR in Eldoret High Court Civil Appeal No 74 of 2017 where the Learned Judge clearly stated that:' This appeal arose from the decision of the Senior Resident Magistrate at Kapsabet in Kapsabet Succession Cause No 1 of 2012. Accordingly, and as correctly pointed by counsel for the Respondent, no second appeal to the Court of Appeal would arise therefrom, for Section 50 (1) of the Law of Succession Act is explicit that: 'An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.” 13.The Court of Appeal in Julius Kamau Kithaka v Waruguru Kithaka Nyaga & 2 others [2013] KECA 236 (KLR) held: -“……..There is no provision in the Law of Succession Act which required the applicant herein to obtain leave to appeal against the decision of the High Court dismissing the application for revocation. It is trite law that where any proceedings are governed by a special Act of Parliament, like in this case, the Law of Succession Act, the provisions of such an Act must be strictly construed and applied. See Josephine Wambui Wanyoike -vs- Margaret Wanjira Kamau & another – Civil Appeal No. 279 of 2003 & H. Adongo & Others -vs- Savings and Loan Society (Kenya) Ltd.- Civil Appeal No, 22 of 1987. Therefore, what is in the Law of Succession Act is what was intended to be therein in the manner and extent it is there. What is not therein expressly is what was intended not to be there by the legislator. I find that the applicant in this case was not required to seek leave to appeal from the High Court.” 14.Similarly, the Court of Appeal in Hafswa Omar Abdalla Taib & 2 others v Swaleh Abdalla Taib [2015] KECA 871 (KLR) held: -“………In this case the appellate jurisdiction in respect of Succession Causes has been donated by section 50 of the Law of Succession Act. From this provision, it is clear that decisions from the magistrates’ courts in Succession Causes are appealable to the High Court; whose decision on such an appeal is final. However, the decision of the Kadhi’s court are appealable to the High Court; and a party dissatisfied with the decision of the High Court on appeal can appeal further to this Court but only with leave of the High Court and in respect only on points of Muslim Law. However, there is no mention of an appeal to this Court from the decision of the High Court made in exercise of its original jurisdiction. Indeed, even section 47 of the same Act makes no mention of an appeal to the Court of Appeal from the decision of the High Court made in the exercise of its original jurisdiction. It is trite that where a right of appeal is not expressly provided for by statute or the statute is silent, then a party wishing to proceed further by way of appeal should seek leave for such an undertaking from the court whose decision he seeks to impugn by way of further appeal or from the appellate court. To our mind we have no doubt at all that an appeal lies to this Court from the decision of the High Court in Succession Causes in its original jurisdiction…….” 15.The above authorities and section 50(1) of the Law of Succession Act are explicit that no appeal lies to the Court of Appeal from the High Court exercising its appellate jurisdiction. An appeal would only rise to the Court of Appeal from the High Court exercising its original jurisdiction. In the present matter, this court in its impugned Judgement dated 7th October 2025 was exercising its appellate jurisdiction. It is my finding therefore that the Applicants have no appellate route to the Court of Appeal and the Judgement dated 7th October 2025 was final. 16.In the end, the Application dated 15th October 2025 has no merit and is dismissed with costs to the Respondents. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 19TH DAY OF MAY, 2026............................................HON. JULIUS K. NG’ARNG’ARJUDGERuling Delivered in the presence of;Siele/Susan Court AssistantLangat for AppellantMugumya for Respondent