[2024] KEHC 12721 (KLR)
The court held that parties cannot, by consent, allocate themselves powers to grant leave to appeal in a succession cause, as this circumvents the mandatory statutory and procedural requirements. The adoption of such a consent would be contrary to both procedural and substantive law. The court emphasized that the...
Source-derived case information.
- Citation
- [2024] KEHC 12721 (KLR)
- Parties
- Applicant: Abraham Kirwa Morogo; Applicant: David Kiprptich Morogo; Applicant: Perez Chepchoge Morogo; Applicant: Ezekiel Kipsang Morogo; Respondent: Daniel Kipchirchr Morogo; Respondent: Moseso Morogo; Respondent: Milka Chepkoech Sawe
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 84 of 2019
- Procedural Posture
- Succession Cause / Ruling on Adoption of Consent for Leave to Appeal
- Outcome
- Consent for leave to appeal struck out as invalid; no orders as to costs.
- Judges
- RN Nyakundi
- Legal Topics
- Probate and Administration, Leave to Appeal, Consent Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abraham Kirwa Morogo
Applicant
David Kiprptich Morogo
Applicant
Perez Chepchoge Morogo
Applicant
Ezekiel Kipsang Morogo
Applicant
Daniel Kipchirchr Morogo
Respondent
Moseso Morogo
Respondent
Milka Chepkoech Sawe
Respondent
Procedural Posture
Succession Cause / Ruling on Adoption of Consent for Leave to Appeal
Legal Issues
- 1 Whether parties can by consent grant themselves leave to appeal in a succession cause contrary to statutory procedure.
- 2 Whether the court can adopt a consent order that is inconsistent with procedural and substantive law.
Ratio Decidendi
The court held that parties cannot, by consent, allocate themselves powers to grant leave to appeal in a succession cause, as this circumvents the mandatory statutory and procedural requirements. The adoption of such a consent would be contrary to both procedural and substantive law. The court emphasized that the prescribed legal procedure for seeking leave to appeal must be strictly followed, and the court must be satisfied that the conditions for granting leave are met. Since the consent did not comply with these requirements, it was declared invalid and struck out.
Court Disposition
Consent for leave to appeal struck out as invalid; no orders as to costs.
Orders
- The consent dated 25.9.2024 purporting to grant leave to appeal is struck out as invalid.
- No orders as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
In re Estate of Nathan A K Morogo alias Nathna Kipserem Arap Morogo alias Nathan Morog (Deceased) (Succession Cause 84 of 2019) [2024] KEHC 12721 (KLR) (22 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12721 (KLR)
Republic of Kenya
In the High Court at Eldoret
Succession Cause 84 of 2019
RN Nyakundi, J
October 22, 2024
IN THE MATTER OF THE ESTATE OF NATHAN A K MOROGO ALIAS NATHNA KIPSEREM ARAP MOROGO ALIAS NATHAN MOROG (DECEASED
Between
Abraham Kirwa Morogo
1st Petitioner
David Kiprptich Morogo
2nd Petitioner
Perez Chepchoge Morogo
3rd Petitioner
Ezekiel Kipsang Morogo
4th Petitioner
and
Daniel Kipchirchr Morogo
1st Objector
Moseso Morogo
2nd Objector
Milka Chepkoech Sawe
3rd Objector
Ruling
1. This court has a pending application dated 19. 8.2024 in which directions were given on 25. 9.2024 by Justice Wananda to canvas the motion within the prescriptive provisions of the law, but the parties without jurisdiction have elected to file a consent dated 25. 9.2024 allocating themselves powers to grant themselves leave to appeal to the next superior court, As a session judge the request of the consent has been placed before me for adoption as an order of this court.
2. The law on leave to appeal a probate or intestate decision of the trial court to the court of Appeal is a juridical procedure that cannot be ousted by the parties. Perhaps it is most plausible to reiterate the principle set out by the court of Appeal in Speaker of National Assembly vs Karume (2022) 1992 KLR 21. Where it is stated as follows: “ Where there is a clear procedure for redress of any particular grievance prescribed by the constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedure
3. I also take the view that the issue to be determined in an application for leave to appeal and stay of execution of the judgement of a trial court revolves around the following conditions:a.That the Appeal has been filed without unreasonable delayb.That the appeal or intended appeal is arguable and not frivolousc.That the order of stay sought if not granted will render the appeal or the intended appeal nugatory.d.That the intended appellant /appellant would suffer substantial loss which may not be remedied by compensatione.That there is sufficient cause for leave to be granted to an aggrieved party to file an appeal.
4. The court by this consent has not had an occasion to settle the question of leave and the conditions precedent under order 42 rule 6(1) of the Civil Procedure Rules as read with Rule 73 (1) of the Probate and Administration Rules. It is clear to me that a party cannot file a consent which is against both procedural and substantive law and expect the court to adopt it as an order of the court defining the rights of the parties. In these circumstances, I declare the consent purported to be filed and adopted as a court order to be invalid. The same is struck out with no orders as to costs.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 22ND DAY OF OCTOBER 2024. .............................R. NYAKUNDIJUDGE