[2025] KECA 999 (KLR)
The Court found that the appeal was filed out of time and that the appellant had not sought or obtained the requisite leave to appeal from a succession cause. Additionally, the respondent failed to copy the letter bespeaking proceedings to the applicants' counsel, which is a mandatory procedural requirement. These...
Source-derived case information.
- Citation
- [2025] KECA 999 (KLR)
- Parties
- Appellant: Paul Mwirigi M'Kwiriga; Respondent: Beatrice Kathambi Gatembo; Respondent: Phylis Rigiri Muthama
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) E148 of 2024
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent with costs to the applicants.
- Judges
- S ole Kantai, JW Lessit, A Ali-Aroni
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Succession Cause, Incompetent Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mwirigi M'Kwiriga
Appellant
Beatrice Kathambi Gatembo
Respondent
Phylis Rigiri Muthama
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal was filed out of time contrary to statutory requirements.
- 2 Whether leave to appeal was required and, if so, whether it was obtained.
- 3 Whether failure to copy the letter bespeaking proceedings to the applicants' counsel rendered the appeal incompetent.
Ratio Decidendi
The Court found that the appeal was filed out of time and that the appellant had not sought or obtained the requisite leave to appeal from a succession cause. Additionally, the respondent failed to copy the letter bespeaking proceedings to the applicants' counsel, which is a mandatory procedural requirement. These procedural lapses rendered the appeal incompetent. Consequently, the Court struck out the appeal with costs to the applicants, emphasizing the necessity of strict compliance with appellate procedural rules, especially in matters arising from succession causes where leave is a jurisdictional prerequisite.
Court Disposition
Appeal struck out as incompetent with costs to the applicants.
Orders
- The appeal is struck out for being incompetent.
- Costs awarded to the applicants.
Full Case Text
Judgment text and source record
21 paragraphs
M'Kwiriga v Gatembo & another (Civil Appeal (Application) E148 of 2024) [2025] KECA 999 (KLR) (27 May 2025) (Ruling)
Neutral citation: [2025] KECA 999 (KLR)
Republic of Kenya
In the Court of Appeal at Nyeri
Civil Appeal (Application) E148 of 2024
S ole Kantai, JW Lessit & A Ali-Aroni, JJA
May 27, 2025
Between
Paul Mwirigi M'Kwiriga
Appellant
and
Beatrice Kathambi Gatembo
1st Respondent
Phylis Rigiri Muthama
2nd Respondent
(9th August, 2024 against the whole decision/ruling of the High Court of Kenya at Meru (R. Nyakundi, J.) delivered on 5th August 2022 in HC. Succession Cause No. 184 of 2004)
Ruling
1. The applicants in the motion brought under various provisions of law pray that the appeal be struck out for being filed out of time. At the hearing of the same learned counsel for the applicants submitted that the appeal was filed outside the time stipulated in law and that the suit at the High Court was a succession cause and that the respondent had not sought or obtained leave to file an appeal to this Court.
2. Counsel for the respondent admits that no leave was obtained to file an appeal. He also admits that the record of appeal was filed out of time and that the letter bespeaking proceedings was not copied to counsel for the applicants.
3. In those premises the appeal is incompetent and the same is struck out with costs to the applicants.
DATED AND DELIVERED AT MERU THIS 27TH DAY OF MAY, 2025. S. OLE KANTAIJUDGE OF APPEALJ. LESIITJUDGE OF APPEAL ALI-ARONIJUDGE OF APPEAL