https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9479

In re Estate of Fatehdin (Deceased) (Probate & Administration E1198 of 2023) [2026] KEHC 9479 (KLR) (Family) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9479 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Probate & Administration E1198 of 2023 H Namisi, J July 3, 2026 IN THE MATTER OF THE ESTATE OF MOHAMED ANWAR FATEHDIN (DECEASED) Between Sabeel Anwar Fatehdin Applicant and Mehnaz Fatehdin Respondent Ruling 1.The Summons for Revocation dated 12 June 2024 was heard and determined by Ruling on January 31, 2025. The Court dismissed the revocation application in its entirety, noting that the Applicant had failed to tender sufficient evidence to demonstrate that mandatory procedural steps were omitted in the issuance of the Grant. Dissatisfied with the Ruling, the Applicant now seeks to escalate the matter to the Court of Appeal. 2.Before the Court is a Notice of Motion dated February 12, 2025, in which the Applicant seeks the following substantive prayers:a.Spent.b.That the Honourable Court be pleased to grant the Applicant leave to appeal the order of the Court issued on February 6, 2025, by the Hon. Lady Justice Helene Namisi pursuant to her ruling delivered on January 31, 2025.c.That the costs of the application be provided for. 3.The application is supported by an affidavit sworn by Geoffrey Eric Odongo, Advocate for the Applicant, on 12 February 2025. The Deponent avers that following the delivery of the Ruling on 31 January 2025, an oral application for leave to appeal was not made immediately because Counsel needed to obtain a copy of the Ruling and relay it to the Applicant, who resides in the United States of America. Upon receiving the Ruling, the Applicant instructed Counsel to initiate the appellate process. The Applicant asserts that the Application is filed within the requisite 14-day statutory window mandated by Order 43 of the Civil Procedure Rules, calculated from the date the formal order was issued on February 6, 2025. 4.Annexed to the Supporting Affidavit is a Draft Memorandum of Appeal (marked "GEO 1"), which outlines five proposed grounds of appeal. 5.The Respondent vigorously opposes the application. The opposition is anchored on Grounds of Opposition dated April 9, 2025, and expanded upon in written submissions dated May 2025. 6.The Respondent characterizes the Application for leave to appeal as a blatant abuse of the court process, describing it as a veiled attempt to scatter and frustrate the distribution of the Deceased's estate, which is currently ripe for the confirmation of the Grant. The Respondent contends that the Application is misconceived, frivolous, and vexatious, intended solely to litigate the matter in perpetuity. 7.In the written submissions, the Respondent advances several primary arguments to urge the Court to deny the Application. Firstly, the Respondent alleges that the Application has been brought out of time without any credible explanation for the delay. The Respondent claims that although the Ruling was delivered on 31 January 2025, and a Notice of Appeal was filed on February 5, 2025, the Applicant has failed to file the Record of Appeal within the stipulated 60-day period under the Court of Appeal Rules. Consequently, the Respondent argues that even if leave were granted, the Applicant would be out of time at the Court of Appeal, making the current application a futile academic exercise. Relying on Thuita Mwangi v Kenya Airways Ltd eKLR and Edith Gichugu Koine v Stephen Njagi Thoithi eKLR, the Respondent asserts that the Applicant has failed to meet the threshold for an extension of time. 8.Furthermore, the Respondent invokes the doctrine of res judicata and abuse of process, arguing that the Applicant is concurrently pursuing an Affidavit of Protest against the confirmation of the Grant while simultaneously seeking leave to appeal the revocation ruling. The Respondent asserts that this dual strategy offends the principles of judicial efficiency and finality, citing In re Estate of Magangi Obuki (Deceased) KEHC 26933 (KLR) and In re Estate of Saniako Kiprop (Deceased) KEHC 11815 (KLR) to illustrate the devastating impact of prolonged, baseless objections on estate beneficiaries. 9.The Respondent relies on the Court of Appeal decision in Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another eKLR to argue that leave to appeal in succession matters should only be granted where there are prima facie grounds that merit serious consideration, a threshold the Respondent insists the Applicant has failed to meet. Analysis & Determination 10.The Court isolates the following definitive issues for determination:i.Whether the application for leave to appeal was filed out of time, thereby necessitating an extension of time, as alleged by the Respondent.ii.Whether the Application constitutes an abuse of the court process or offends the doctrine of res judicata.iii.Whether the Applicant requires the leave of this Court to appeal the ruling of 31 January 2025, to the Court of Appeal, in light of the evolving jurisprudence of the Supreme Court.iv.Depending on the resolution of the aforementioned issues, what are the appropriate final orders to dispose of the instant Application? Timeliness and the Allegation of Delay 11.The Respondent has forcefully argued that the Applicant's motion is brought out of time. Relying heavily on Thuita Mwangi v Kenya Airways Ltd eKLR and Edith Gichugu Koine v Stephen Njagi Thoithi eKLR, the Respondent outlines the stringent requirements for the extension of time, including the length of the delay, the reasons for the delay, and the prejudice to the opposing party. The Respondent submits that the present Application for leave to appeal is not only without merit, but it has also been brought out of time, without any credible explanation for the delay. 12.The Court must correct a profound misapprehension of procedural timelines exhibited in the Respondent's submissions. A precise chronological analysis of the record reveals the fallacy in the Respondent's position. 13.The Ruling from which the Applicant seeks to appeal was delivered on 31 January 2025. The formal order reflecting that ruling was extracted, signed, and issued on February 6, 2025. Order 43 Rule 3 of the Civil Procedure Rules stipulates the mechanism for seeking leave:An application for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made; or within 14 days from the date of such order. 14.The Applicant filed the Notice of Motion seeking leave to appeal on 12 February 2025. Calculating the time from the issuance of the formal order on 6 February 2025, the Application was filed a mere six (6) days later. Even if time were calculated strictly from the date the Ruling was delivered, the application filed on 12 February 2025, constitutes exactly 12 days. Under either calculation, the Application falls squarely within the statutory 14-day limit mandated by Order 43 Rule 3. The Respondent's argument that the Application was filed out of time is factually incorrect and legally unsustainable. The Applicant did not apply for an extension of time because none was needed. 15.Furthermore, the Respondent attempts to conflate the timeline for filing a Record of Appeal at the Court of Appeal with the timeline for filing an Application for leave at the High Court. The Respondent argues that because 60 days have lapsed since the Notice of Appeal was filed, the Applicant is already out of time at the Court of Appeal. 16.The jurisdiction of this Court is presently limited solely to determining the Application before it. Whether the Applicant will require an extension of time at the Court of Appeal to file his Record of Appeal under Rule 82 of the Court of Appeal Rules is the exclusive preserve of the appellate court. As guided by the principles in Shital Bimal Shah and 2 Others v Akiba Bank Ltd eKLR, a Court must not close the doors of justice prematurely based on anticipated procedural hurdles in a superior forum. This Court cannot prejudge, pre-empt, or summarily dismiss a timely application for leave based on speculative delays regarding the subsequent filing of the appellate record. 17.Accordingly, the Court finds that the application dated February 12, 2025, was filed well within the requisite statutory timelines. Abuse of Court Process and Multiplicity of Suits 18.The Respondent urges the Court to dismiss the Application on the basis that the Applicant is engaging in an abuse of the judicial process. Citing In re Estate of Magangi Obuki (Deceased) KEHC 26933 (KLR), the Respondent argues that the Applicant is employing the judicial process to cause irritation and annoyance by instituting a multiplicity of actions simultaneously. Specifically, the Respondent points to the fact that while this Application for leave to appeal is pending, the Applicant has also filed an Affidavit of Protest against the confirmation of the Grant. 19.Furthermore, relying on In re Estate of Andrew Achoki Mogaka (Deceased) KEHC 25670 (KLR), the Respondent invokes the doctrine of res judicata, arguing that parties should not be allowed to litigate forever over the same issue merely by giving the case a "cosmetic face lift". 20.The Court must clarify the distinction between an abuse of process and the legitimate exercise of appellate rights. Res judicata, as codified in Section 7 of the Civil Procedure Act, prevents a court from trying a suit or issue that has already been directly and substantially decided in a former suit between the same parties. Seeking leave to appeal a Ruling does not offend res judicata; rather, it is the constitutionally sanctioned mechanism for escalating a decided issue to a higher court to correct perceived judicial errors. The Applicant is not asking this Court to re-litigate the revocation application; he is asking for permission to have the Court of Appeal review this Court's decision. 21.Regarding the parallel Affidavit of Protest, succession proceedings are uniquely phased. The application for revocation of a Grant is legally and procedurally distinct from a protest against the confirmation of a Grant. While concurrent proceedings can undoubtedly stall the finalization of an estate, pursuing an appeal against a revocation ruling while simultaneously protecting one's rights at the confirmation stage does not, per se, constitute an abuse of process. 22.The Court is acutely aware of the overarching policy objective of succession law, which is the expeditious, transparent, and fair distribution of a deceased person's estate. As highlighted in In re Estate of Saniako Kiprop (Deceased) KEHC 11815 (KLR), lengthy, baseless litigation has a devastating impact on dependents, who are deprived of their rightful inheritance while the estate's resources are depleted through endless court battles. However, the pursuit of expedition cannot be permitted to override constitutional rights. Protecting an estate from delay cannot justify stripping a litigant of their right to access the appellate courts if such a right exists in law. Jurisdiction and the Requirement for Leave to Appeal 23.The absolute crux of this Application rests on whether the Applicant is legally mandated to seek the leave of the High Court before lodging an appeal against a decision rendered by this Court in the exercise of its original jurisdiction in a succession cause. 24.For decades, Kenyan jurisprudence has been entangled in a deep procedural conundrum regarding the right of appeal in succession matters. The Law of Succession Act is a specialized, self-contained code. Section 47 of the Act grants the High Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders therein as may be expedient. Section 50 of the Act governs appeals. Section 50(1) stipulates that an appeal shall lie to the High Court from any order or decree of a Resident Magistrate, and the decision of the High Court thereon shall be final. Section 50(2) permits an appeal from a Kadhi's Court to the High Court, and thereafter to the Court of Appeal with prior leave, but only on points of Muslim law. 25.Crucially, the Act is entirely silent on the mechanism for appealing a decision made by the High Court while exercising its original jurisdiction. To bridge this statutory gap, courts historically turned to the Civil Procedure Rules via Rule 63(1) of the Probate and Administration Rules, which allows the application of specific provisions of the Civil Procedure Rules to probate matters so far as relevant. 26.This cross-pollination of procedural rules birthed the long-standing judicial practice established by the Court of Appeal in the seminal case of Makhangu v Kibwana [1996-1998] 1 EA 168. In that case, the Court of Appeal held that since Section 47 of the Act empowers the High Court to pronounce decrees and orders, such orders are appealable under Section 66 of the Civil Procedure Act. Consequently, the appellate court deduced that an appeal lies as a matter of right only if the order falls within the narrow ambit of appealable orders listed under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules; otherwise, leave of the court is mandatory. 27.This restrictive interpretation was subsequently cemented in an unbroken line of jurisprudence, including the very case heavily relied upon by the Respondent in this matter: Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another eKLR. In that decision, the Court of Appeal definitively pronounced:“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." 28.This position held sway for years, forcing litigants like the present Applicant to navigate what has been accurately described by legal scholars as the "leave labyrinth". Litigants aggrieved by a High Court decision on revocation of Grants, confirmation of Grants, or distribution of estates were compelled to file interlocutory applications seeking permission to appeal, subject to the discretionary whims of the very court that rendered the adverse decision. 29.However, the legal landscape in Kenya is dynamic, and the rigid requirement for leave in succession matters increasingly ran into constitutional turbulence, specifically against Article 164(3)(a) of The Constitution, which unambiguously vests the Court of Appeal with the jurisdiction to hear appeals from the High Court without statutory caveats. 30.This Court must take judicial notice of the monumental shift in the law that occurred on 31 March 2026. The Supreme Court of Kenya, acting as the apex court and the final arbiter of constitutional and statutory interpretation, rendered a landmark judgment in the case of Eliud Mwendia Wandi v Kevin Wanjohi Muchira (Petition No. E029 of 2024) KESC 40 (KLR). 31.In that case, the appellant’s appeal to the Court of Appeal had been struck out on the exact basis argued by the Respondent herein: that the appellant had failed to seek the requisite leave from the High Court, relying precisely on the Makhangu and Rhoda Wairimu Karanja line of precedent. The Supreme Court was invited to determine a single, profound constitutional question: Whether, in light of Article 164(3)(a) of the Constitution, leave is a prerequisite for lodging an appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter. 32.The Supreme Court dismantled the decades-old procedural barrier, effectively overruling the Makhangu doctrine and the Rhoda Wairimu Karanja precedent on this specific issue. The Supreme Court's ratio decidendi fundamentally alters how this Court must treat the instant application. The apex court articulated several binding principles:(i)Statutory Silence Does Not Equate to a Requirement for Leave: The Supreme Court analysed the Law of Succession Act and the Probate and Administration Rules, noting that neither code contains an express provision requiring leave for appeals from decisions of the High Court rendered in its original jurisdiction. The Court held:“Where Parliament intends to require leave as a condition precedent to the exercise of the right of appeal, it does so expressly and in unambiguous terms. The requirement for leave is therefore neither implied nor inferred from statutory silence. Rather, it is a deliberate legislative prescription.".ii.The Inapplicability of Section 75 of the Civil Procedure Act: The Supreme Court critically examined the judicial practice of importing Section 75 of the Civil Procedure Act to restrict succession appeals. The Court observed that while Rule 63(1) of the Probate and Administration Rules permits the application of the Civil Procedure Rules, this importation cannot be used to extinguish a substantive right of appeal where the primary statute does not expressly mandate leave.(iii)Constitutional Right of Access to Justice: Most decisively, the Supreme Court anchored its determination in the Constitution. The Court declared:“There is no legal basis for imposing a requirement of leave as a prerequisite to lodging an appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter. Such a requirement, not being anchored in either the Constitution or statute, cannot properly be sustained.” 33.The Court further emphasized that an unwritten rule of practice restricting appeals violates Article 27(1) of the Constitution and impedes the constitutional right of access to justice. 34.The inescapable conclusion derived from the Supreme Court’s judgment is that an aggrieved party possesses an automatic right of appeal to the Court of Appeal against any decision made by the High Court while exercising its original jurisdiction in a succession cause. The procedural "leave labyrinth" has been unequivocally abolished. 35.Returning to the facts at hand, the Applicant filed the Notice of Motion on 12 February 2025, seeking the leave of this Court to appeal the ruling of 31 January 2025. At the time the application was filed, the jurisprudence of the Court of Appeal in Rhoda Wairimu Karanja was the prevailing law, and the Applicant's Counsel acted prudently in seeking leave to avoid having the intended appeal struck out for incompetence. 36.However, the Supreme Court's judgment in Eliud Mwendia Wandi operates in rem and clarifies the correct interpretation of the law regarding appellate jurisdiction in succession matters. The decisions of the Supreme Court are strictly binding on the High Court pursuant to Article 163(7) of the Constitution. 37.Consequently, the legal architecture upon which the Applicant's motion—and the Respondent's vehement opposition—is built has been fundamentally dismantled. The Applicant does not require the permission, leave, or blessing of this Court to lodge his appeal at the Court of Appeal. The right to appeal the 31 January 2025 Ruling is statutorily unfettered and constitutionally guaranteed. 38.The Court notes the Respondent's extensive submissions arguing that leave should be denied because the intended appeal lacks merit. The Respondent relied heavily on the necessity to prove arguable grounds that merit serious consideration, a threshold previously demanded by the Court of Appeal when exercising the discretion to grant leave. In light of the Eliud Mwendia Wandi decision, this Court is no longer the gatekeeper for succession appeals originating from its original jurisdiction. Therefore, it would be an exercise in futility, and indeed an overreach of jurisdiction, for this Court to delve into the merits or demerits of the Applicant's proposed grounds of appeal. The assessment of whether the appeal is frivolous, whether the Applicant's allegations of forgery are tenable without a forensic report, or whether the Applicant was legitimately sidelined in the probate proceedings are matters that now lie exclusively within the purview of the Court of Appeal to evaluate during the hearing of the substantive appeal. 39.Since the Applicant enjoys an automatic right of appeal, the instant Notice of Motion dated 12 February 2025, seeking leave to appeal is rendered procedurally redundant and unnecessary by operation of law. Granting leave would be a superfluous judicial act, while denying leave would be a direct contravention of the binding precedent set by the Supreme Court. 40.The most appropriate course of action, which maintains the integrity of the judicial record while respecting the newly clarified appellate hierarchy, is to strike out the Application, not for lack of merit on the part of the Applicant, but because the relief sought is no longer a legal prerequisite in Kenyan succession jurisprudence. 41.The Applicant is at liberty to proceed to the Court of Appeal as of right. 42.Based on the above analysis, the Court makes the following final orders:i.The Notice of Motion dated 12 February 2025 is hereby struck out on the grounds that leave to appeal is no longer a legal prerequisite.ii.It is hereby declared, in accordance with the Supreme Court decision in Eliud Mwendia Wandi v Kevin Wanjohi Muchira (Petition No. E029 of 2024) KESC 40 (KLR), that the Applicant enjoys an automatic right of appeal to the Court of Appeal against the decision of this Court rendered in the exercise of its original jurisdiction.iii.The Applicant is at liberty to file his appeal at the Court of Appeal without the leave of this Court, subject to the procedural rules and timelines of the appellate court.iv.To preserve the estate and mitigate further familial friction, each party shall bear their own costs for this application. DATED AND DELIVERED AT NAIROBI THIS 3 DAY OF JULY 2026HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Court Assistant: Lucy Mwangi