[2023] KEHC 27046 (KLR)
The court found that the Law of Succession Act does not provide an automatic right of appeal to the Court of Appeal from decisions of the High Court in succession causes. However, established case law and constitutional principles recognize that such an appeal may be pursued if leave is granted by the High Court or,...
Source-derived case information.
- Citation
- [2023] KEHC 27046 (KLR)
- Parties
- Applicant: Andrew Muriuki M’Uthaka; Applicant: Patrick Kamengu; Applicant: John Mutuma Robert; Respondent: Susan Nkatha; Respondent: David Mugambi; Respondent: Lucy Kamami; Respondent: Fredrick Kaberia; Respondent: Alexander Mithika; Respondent: Mary Mwendwa; Respondent: Roseline Kinya; Applicant: Celina Nkirina Samuel
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 308 of 2010
- Procedural Posture
- Succession Cause / Application for Leave to Appeal
- Outcome
- leave to appeal granted
- Judges
- TW Cherere
- Legal Topics
- Succession Procedure, Leave to Appeal, High Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Muriuki M’Uthaka
Applicant
Patrick Kamengu
Applicant
John Mutuma Robert
Applicant
Susan Nkatha
Respondent
David Mugambi
Respondent
Lucy Kamami
Respondent
Fredrick Kaberia
Respondent
Alexander Mithika
Respondent
Mary Mwendwa
Respondent
Roseline Kinya
Respondent
Celina Nkirina Samuel
Applicant
Procedural Posture
Succession Cause / Application for Leave to Appeal
Legal Issues
- 1 Whether the applicant is entitled to leave to appeal the High Court's ruling in a succession cause.
- 2 Whether the Law of Succession Act provides for an automatic right of appeal to the Court of Appeal from the High Court.
Ratio Decidendi
The court found that the Law of Succession Act does not provide an automatic right of appeal to the Court of Appeal from decisions of the High Court in succession causes. However, established case law and constitutional principles recognize that such an appeal may be pursued if leave is granted by the High Court or, if refused, by the Court of Appeal. The applicant's request for leave was unopposed, and the court was satisfied that the applicant met the threshold for the grant of leave. Accordingly, the court exercised its discretion to grant leave to appeal the ruling dated 15th July, 2021.
Court Disposition
leave to appeal granted
Orders
- Applicant is granted leave to appeal the court’s ruling dated 15th July, 2021.
Full Case Text
Judgment text and source record
39 paragraphs
In re Estate of M'Imirongo M'Uthaka (Deceased) (Succession Cause 308 of 2010) [2023] KEHC 27046 (KLR) (14 December 2023) (Ruling)
Neutral citation: [2023] KEHC 27046 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause 308 of 2010
TW Cherere, J
December 14, 2023
Between
Andrew Muriuki M’Uthaka
1st Petitioner
Patrick Kamengu
2nd Petitioner
John Mutuma Robert
3rd Petitioner
and
Susan Nkatha
1st Respondent
David Mugambi
2nd Respondent
Lucy Kamami
3rd Respondent
Fredrick Kaberia
4th Respondent
Alexander Mithika
5th Respondent
Mary Mwendwa
6th Respondent
Roseline Kinya
7th Respondent
and
Celina Nkirina Samuel
Applicant
Ruling
1. By ruling dated 15th July, 2021, this court dismissed an application by Celina Nkirina Samuel (Applicant herein) and Daniel Kirimi Mutua in which they sought to review an order of eviction from Plot at Laare Market that was issued on dated 27th April, 2020.
2. By summons dated 21st July, 2021 brought under Section 7 of the Appellate Jurisdiction Act, Section 47 of the Law of Succession Act and rules 49 and 70 of theProbate and Administration Rules, Applicant seeks leave to appeal the ruling dated 15th July, 2021. No response to the application was filed.
3. I have considered the application and I note that under the provisions of the Law of Succession Act (cap.160), there is no specific provision for filing an appeal to the Court of Appeal from a succession cause heard and determined by the High Court. However, courts have held that an appeal to the Court of Appeal can be filed, subject to leave being granted by the High Court or the Court of Appeal. This position was reiterated by the Court of Appeal in the case of Rhoda Wairimu Karanja & Another –vs- Mary Wangui Karanja & Another (2014) eKLR when the court stated as follows –“We think we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right to 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”
4. Under Article 50 of the Constitution, Applicant has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body and that includes an appeal from any decision as by law provided.
5. Consequently, and for the above reasons, Applicant is granted leave to appeal this court’s ruling dated 15th July, 2021.
DATED AT MERU THIS 14TH DAY OF DECEMBER 2023T. W. CHEREREJUDGEAppearancesCourt Assistant - Kinoti/MuneneFor Applicant - Mr. Kimani for Macharia Kimani AdvocatesFor Petitioners - N/A for Kobia Michubu & Co. AdvocatesFor Objectors - N/A for B.G.Kariuki & Co. AdvocatesPage 2 of 2