https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6675

In re Estate of Kariuki Iranji Michira (Deceased) (Probate & Administration 8 of 1995) [2026] KEHC 6675 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 6675 (KLR) Republic of Kenya In the High Court at Nyeri Probate & Administration 8 of 1995 MA Odero, J May 15, 2026 IN THE MATTER OF THE ESTATE OF KARIUKI IRANJI MICHIRA (DECEASED) Between Duncan Nyaga Kariuki Applicant and Gerald Maina Ngatia 1st Respondent Paul Wanjuki Kariuki 2nd Respondent Peter Kariuki Wanjuki 3rd Respondent Ruling 1.Before this Court is the Notice of Motion dated 7th August 2025 in which the Applicant Duncan Nyaga Kariuki seeks the following orders;-“ 1.That this Honourable Court may be pleased to stay the execution herein pending the hearing and final determination of the Intended appeal to the Court of Appeal. 2.That the cost of this application be costs in the cause.” 2.The application was supported by the affidavit of even date sworn by the Applicant. 3.The Respondents opposed this application for stay by way of the Replying Affidavit dated 24th November 2025. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 1st December 2025 whilst the Respondents relied upon their written submissions dated 19th February 2026. Background 4.This succession cause relates to the estate of the late Kariuki Iranji who died way back in July 1989. 5.On 1st August 2025 this Court delivered a Judgement in respect of a Protest dated 30th July 2024 filed by the Applicant. The applicant has now indicated his intention to file an appeal against that ruling and seeks a stay of execution of the judgment pending the hearing and determination of his intended appeal. 6.The Respondents in their replying affidavit submit that the High Court is now ‘functus officio’ having delivered its judgment on 1st August 2025. They urge the court to dismiss the application for stay of execution. Analysis And Determination 7.I have carefully considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties. 8.It is trite law that in succession matters a right of appeal to the Court of Appeal is not automatic. An aggrieved party must first apply for leave to appeal from a decision of the High Court in Probate Matters. 9.Section 50 of the Law of Succession Act CAP 160, Laws of Kenya provides as follows;-“50(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 shall be final.(2)An appeal shall lie to the High Court in respect of any order or decree made by a Kadhis court in respect of any point of Muslim law, to the Court of Appeal.” [Own emphasis] 10.A clear reading of the above provision together with the Probate and Administration Rules reveals that there is no provision in the Act or in the Rules allowing a right of appeal from the High Court to the Court of Appeal in Probate Matters. 11.In the case of Rhoda Wairimu Karanja & Another -vs- Mary Wangui Karanja & Another [2014] eKLR the Court stated as follows:-“But section 47 of the Law of Succession Act makes no mention of an appeal to the Court of Appeal from the decision of the High Court made in the exercise of the latter’s original jurisdiction. Decisions on this point have been varied both in the High Court and in this Court. The holding in the leading case of MAKHANGU VS. Kibwana [] 1996-1998] 1 EA 168 (Cockar, CJ, Kwach and Shah, JJ.A), which has been cited invariably in almost all the subsequent decisions is to the effect that an appeal does lie to the Court of Appeal from the decision of the High Court in probate matters; that under section 47 of the Law of Succession Act, the High Court has jurisdiction on hearing a matter to pronounce decrees or orders; that any order or decree made under this section is appealable under section 66 of the Civil Procedure Act, either as a matter of right if it falls within the ambit of section 75 of the Civil Procedure Rules or by leave of the Court if it did not. It has been said in criticism of this decision that the Law of Succession Act is a complete code with its own rules and that there would be no justification to import into it provisions of the Civil Procedure Act and Rules unless expressly permitted under Rule 63 of the Probate and Administration Rules.In short, and speaking generally, the practice alluded to by their Lordships in the above passage, is that where there is no automatic right of appeal an aggrieved party wishing to appeal must seek leave to do so and the granting of leave is a discretionary power.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 or where the application for leave is refused with leave of this Court. Leave to appeal will normally be granted where prima facie it appears that there are grounds which merit serious judicial consideration. We think this is a good practice that ought to be retained in order to promote finality and expedition in the determination of the probate and administration dispute.So what is our decision in this application….leave of the High Court to appeal to this Court in Succession matters is necessary in the former’s exercise of its original jurisdiction.” (Own emphasis). 12.Similarly in the case of John Mwita Murimi & 2 others vs. Mwikabe Chacha Mwita & another [2019] eKLR the Court of Appeal stated.“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 it is refused, with leave of this Court. (See also in Re Estate of Mbiyu Koinange (Deceased) [2015] eKLR: HCC Succession Cause No. 527 of 1981).” [Own emphasis] 13.Therefore the Applicant ought to have sought for leave to appeal. I have carefully perused the Notice of Motion dated 7th August 2025. The same does not contain any prayer for leave to appeal against the judgement of 1st August 2025. 14.The Applicant cannot seek a stay of execution when he has not secured leave to appeal against the judgment and no appeal has yet been filed. For the above reason this application is found to have no merit. The same is dismissed in its entirety. No orders on costs. DATED IN NYERI THIS 15TH DAY OF MAY 2026.……………………………MAUREEN A. ODEROJUDGE