https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6911

In re Estate of Githongo (Deceased) (Family Appeal E024 of 2024) [2026] KEHC 6911 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6911 (KLR) Republic of Kenya In the High Court at Thika Family Appeal E024 of 2024 FN Muchemi, J May 14, 2026 IN THE MATTER OF THE ESTATE OF JEREMIAH MWANGI GITHONGO (DECEASED) Between Francis Murigi Kimani 1st Objector Mary Mwihaki Mwangi 2nd Objector Legal Representatives of the Estate of Stanslaus Kimani Ng’ang’a - Deceased and Josephat Ng’ang’a Mwangi 1st Respondent John Macharia Mwangi 2nd Respondent Ruling 1.The application dated 17th June 2025 seeks for orders of leave to file a second appeal to the Court of Appeal from the judgment of Lady Justice Hellene Namisi. The judge heard the appeal and delivered the judgment while in this court for service week. In my view, it would cause delay of this application to have the file forwarded to the judge to hear and determine the application. I will therefore proceed to deal with the application which relates to only issues of evidence adduced in the court below. 2.The respondents informed the court on 21st August 2025 that they filed a Replying Affidavit in opposition to the application but no copy of the said affidavit was traced in the CTS or in the physical file. Objectors /Applicants’ Case 3.The applicant states that the court delivered a judgment in the matter on 23rd May 2025 dismissing their appeal emanating from a judgment delivered on 14th January 2010 in Thika CM P & A No. 60 of 1992. Being aggrieved by the said judgment, the applicants seek leave of the court to file a second appeal to the Court of Appeal pursuant to Order 43 Rule 1(2) and (3). The applicants aver that the respondents shall not be prejudiced in any way whereas the estate of the deceased stands to suffer irreparable loss and damage unless leave is granted to lodge an appeal. 4.Parties put in written submissions but the respondents’ copy of submissions could not be traced in the file or the CTS. The Applicants’ Submissions 5.The applicants submit that land parcels Chania/Ngorongo/T.181, T.188, T/191 and T/193 were held in common by the deceased and themselves but the learned magistrate said she found no evidence of ownership of LR. No. Chania/Ngorongo/T/191 and T/193 whereas the applicant’s name is registered in the title deed. Furthermore, the learned magistrate found that the petitioner’s family had no interest in LR. No. Chania/Ngorongo/T/181 and T/188 but the said parcels of land bear the name Jeremiah Mwangi Githongo on the title deed. The applicants argue that the appellate court missed to address the said issues and thus they are in limbo as the administrators of the estate of Stanslaus Kimani Ng’ang’a. 6.The applicants argue that the ruling does not fall within the ambit of Order 43 Rule 1 and thus the need to have filed the application under section 75 of the Civil Procedure Act and Order 43 Rule 1(2) of the Civil Procedure Rules. The applicants rely on the cases of Boit v Kumin Boit & Another [2025] KECA 568 (KLR) and Mucheri (Civil Appeal No. 11 of 2018) [2024] KEHC 3222 (KLR) (3rd April 2024) in support of their submissions. The Law Whether the application is merited. 7.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 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 prior leave thereof in respect of any point of Muslim law, to the court of Appeal. 8.There is no specific procedure for appeal to the Court of Appeal. However, the High Court is granted unlimited power to entertain any application and determine any dispute under the Act. Further Rule 49 of the Probate and Administration Rules provides for applications not otherwise provided for and Rule 73 of the Probate and Administration Rules also saves the inherent powers of the court to make orders necessary for the ends of justice. 9.In the Court of Appeal decision in M’Inkanatha v Kaberia (Civil Appeal 22 of 2019) [2025] KECA 1429 (KLR) (31 July 2025) (Judgment) the court held:-“The Law of Succession Act does not provide for appeals, from decisions of the High Court, in exercise of its appellate jurisdiction, on appeals from the Magistrate’s Courts, and, in fact, states, at Section 50(1) that the decisions of the High Court on appeal are final. However, it is settled, by such decisions as Makhangu v Kibwana [1996-1998] 1 EA 168 (Cockar CJ, Kwach & Shah JJA); Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another [2014] eKLR (Musinga, Ouko & Gatembu JJA) and Sophia Salim Gathiaka & Another v Mariam Mbuve Abdalla & 9 Others [2016] eKLR (Mwilu, Azangalala & Kantai JJA), that an appeal lies from a decision of the High Court sitting as an appellate court, to the Court of Appeal. Whether the appeal is as of right or whether leave is required, is still unsettled. Therefore, to be on the safe side, it would be prudent to obtain leave." 10.Further guided by the case of John Mwita Murimi & 2 Others v Mwikabe Chacha Mwita & Another [2019] eKLR, the court held:-“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 (supra), 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 the leave of this Court." 11.In determining whether to grant leave to appeal, the court must examine whether the applicant has demonstrated prima facie grounds that merit serious judicial consideration. The applicants have not annexed any draft memorandum of appeal however they have expressed in their affidavit that the trial court and the appellate court failed to find that the land parcels Chania/Ngorongo/T.181, T.188, T/191 and T/193 were held in common by the deceased and Stanslaus Kimani Ng’ang’a now deceased who was the objector in the lower court. 12.It is my view that the grounds of appeal as stated by the applicants in their affidavit do not demonstrate existence of serious issues which are arguable and merit serious judicial consideration by the Court of Appeal. The trial court and appellate court both found that the late Stanslaus Kimani Ng’ang’a did not prove ownership of the properties Chania/Ngorongo/T.181, T.188, T/191 and T/193 and therefore was not entitled to the said parcels of land. It is trite that a second appeal in the Court of Appeal shall be only on matters of law. The applicants’ concern herein is based on evidence in that the magistrate found that there was no sufficient evidence to prove that a transaction of sale of the said plots existed between the deceased and the late Stanslaus Kimani Ng’ang’a. The High Court found no fault in the judgment of the learned magistrate. It is on record that the objector, Stanslaus Kimani Ng’ang’a testified that his only interest was on LR. No. Chania/Ngorongo/T.181 and yet the said objector failed to prove that a sale had ensued between him and the deceased of the said property. 13.The applicants have not said they have any new evidence to support their allegations of the sale of land L.R. Chania/Ngorongo/T.181 by the deceased to the late Stanslaus Kimani Ng’ang’a. Had the applicants found new evidence, they ought to have gone for review before the magistrate’s court, but not to appeal in the High Court as they did. 14.Thus, it is my considered view that an appeal to the Court of Appeal from the judgment of this court in HCCA No.E024 of 2024 would only amount to an academic exercise in the event that leave is granted. It is important to note that both the trial court and appellate court found that the applicants did not prove that the said land parcels belonged to the late Stanslaus Kimani Ng’ang’a. As such, granting leave to the applicants to file a second appeal would not serve the interests of justice. 15.Accordingly, it is my considered view that the application dated 17th June 2025 lacks merit and is hereby dismissed with costs to the respondents. 16.It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 14TH DAY OF MAY 2026F. MUCHEMIJUDGE