[2005] KEHC 838 (KLR)
The court found that while the Law of Succession Act expressly bars appeals from High Court decisions made in its appellate jurisdiction, it is silent regarding appeals from decisions made in its original jurisdiction. The Appellate Jurisdiction Act provides that the Court of Appeal may hear appeals from the High...
Source-derived case information.
- Citation
- [2005] KEHC 838 (KLR)
- Parties
- Respondent: Beatrice Lukalo; Respondent: Margaret Osolika; Applicant: Tom Lukalo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 408 of 1998
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Appeal
- Outcome
- application for leave to appeal granted
- Legal Topics
- Leave to Appeal, Appellate Jurisdiction, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Lukalo
Respondent
Margaret Osolika
Respondent
Tom Lukalo
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Leave to Appeal
Legal Issues
- 1 Whether leave to appeal to the Court of Appeal from a High Court decision in a succession cause is necessary and can be granted.
- 2 Whether the High Court's decision in its original jurisdiction under the Law of Succession Act is appealable to the Court of Appeal.
Ratio Decidendi
The court found that while the Law of Succession Act expressly bars appeals from High Court decisions made in its appellate jurisdiction, it is silent regarding appeals from decisions made in its original jurisdiction. The Appellate Jurisdiction Act provides that the Court of Appeal may hear appeals from the High Court where such right is conferred by law. Since the Succession Act does not expressly bar such appeals in original jurisdiction, and given the absence of an express prohibition, the court held that leave to appeal could be granted. The court further found that the applicant's delay in seeking leave was not inordinate and that the intended appeal was not frivolous. Accordingly,...
Court Disposition
application for leave to appeal granted
Orders
- The applicant is granted leave to appeal to the Court of Appeal against the Ruling of this court delivered on 17.12.2004.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA Succession Cause 408 of 1998
IN THE MATTER OF EZEKIEL LUKALO ALUDA ……..……… DECEASED AND BEATRICE LUKALO MARGARET OSOLIKA ………...……………. PETITONERS/RESPONDENTS V E R S U S TOM LUKALO ………...…………………………….. OBJECTOR/APPLICANT
R U L I N G
The Applicant, Tom Lukalo, made an application to this court on 14. 1.2005 by way of Notice of Motion dated 5. 1.2005 seeking leave to file appeal to the Court of Appeal from the Ruling of this Court dated 17. 12. 2004 in which this court struck out the Applicant’s chamber summons dated 1st September, 1999.
The grounds for the making of the application stated that no appeal lies to the Court of Appeal without leave and that the intended appeal is not frivolous. The application was supported by an affidavit sworn on 7. 1.2005 by Laban Akula Anziya, the advocate for the Applicant.
Mr. Anziya was not able to show whether the Court of Appeal to which his client is desirous of lodging appeal has jurisdiction. It was necessary for him to show that this court’s decision is appeallable to the Court of Appeal and that the leave sought was necessary and that there was no delay in seeking such leave. For good measure he could also indicate that the intended appeal was not frivolous.
Decisions of the High Court under the Law of Succession Act, Chapter 160 of the Laws of Kenya sitting as an appellate court are under section 50 of the Law of Succession Act final. They are not appeallable. However, decisions of the High Court in its original jurisdiction do not appear to be final. But section 47 of the Law of Succession Act is silent on the point. It does not state that the decision of the High Court in its original jurisdiction is final or that it is not appeallable. Section 3 (1) of the Appeallate Jurisdiction Act, Chapter 9 of the Laws of Kenya stipulates that the Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court in cases in which an appeal lies to the Court of Appeal under any law. In effect therefore, if the Court of Appeal has such jurisdiction as may be vested in it under any law, has the Succession Act Cap. 160 vested the Court of Appeal with jurisdiction? It is debatable. But it is plain to see that if the legislature intended not to have the decisions of this court under Cap. 160 in its original jurisdiction appealed from to the Court of Appeal, the Act would have so stipulated in the same manner that it has with regard to decisions of this court in its appellate jurisdiction.
Although the applicant took 30 days to seek leave to appeal, the delay was not inordinate and I am disinclined to deny the applicant the leave he seeks. In the circumstances, I grant the applicant leave to appeal to the Court of Appeal against the Ruling of this court delivered on 17. 12. 04.
Dated at Kakamega this 8th day of July 2005
G. B. M. KARIUKI
J U D G E