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Court of AppealStruck OutCivil Appeal (Application) 139 of 2009

Francis Gachoki Murage v Juliana Wainoi Kinyua & Another

Court of Appeal of Kenya
24 June 2010
944 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot hear appeals from High Court decisions on succession appeals from magistrates' courts, because the Law of Succession Act makes those decisions final.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nyeri (Omolo, Aganyanya and Visram, JJA) disposed of a notice of motion by the respondents seeking to strike out the appellant's appeal, Civil Appeal No. 139 of 2009, lodged on 15th June 2009 against a judgment of Khaminwa, J of the High Court at Embu dated 16th January 2008 in H.C.C.A. No. 46 of 2005. The High Court had dismissed the appellant's appeal from a decree of the Principal Magistrate's Court at Embu in a dispute governed by the Law of Succession Act (Cap 160). The respondents argued, invoking Rule 80 of the Court's Rules and section 50(1) of the Law of Succession Act, that no appeal lies from a High Court decree in its appellate jurisdiction in succession matters, since section 50(1) makes the High Court's decision final. Counsel for the appellant relied on section 66 of the Civil Procedure Act, contending that because the High Court's judgment resulted in a decree, an appeal lay to the Court of Appeal, and cited Kaboi v Kaboi and Makhangu v Kibwana. The court rejected these submissions: the Court of Appeal's jurisdiction depends on an appeal lying 'under any law', section 50(1) confers none and specifically deprives the Court of jurisdiction, and the general provisions of section 66 cannot override the specific finality provision. The cited cases were distinguished as concerning the High Court's original jurisdiction. The motion was allowed, the appeal struck out, and costs of both the motion and the struck-out appeal awarded to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an appeal lies to the Court of Appeal against a decree of the High Court exercising appellate jurisdiction in succession matters under the Law of Succession Act
  2. 2.Whether section 66 of the Civil Procedure Act overrides section 50(1) of the Law of Succession Act

Key legal issues

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01

Whether an appeal lies from a High Court decree in its appellate jurisdiction over succession matters

Holding

No appeal lies; section 50(1) of the Law of Succession Act makes the High Court's decision on appeal from a resident magistrate final and excludes Court of Appeal jurisdiction

Reasoning

The dispute fell squarely under the Law of Succession Act. Section 50(1) provides that the High Court's decision on appeal from a resident magistrate's order or decree in respect of any estate is final. The Court of Appeal's jurisdiction under section 64(1) of the Constitution and section 3(1) of the Appellate Jurisdiction Act depends on an appeal lying 'under any law', and section 50(1) confers none. Section 66 of the Civil Procedure Act, being general, cannot override this specific bar.

p. 2
02

Relevance of authorities where the High Court exercised original jurisdiction

Holding

Kaboi v Kaboi and Makhangu v Kibwana, cited by the appellant, were distinguishable because they concerned the High Court's original, not appellate, jurisdiction

Reasoning

Counsel relied on two cases to justify an appeal from a High Court decree. The court held both inapposite: in each the High Court was exercising original jurisdiction, so an appeal to the Court of Appeal was available there but not where, as here, the High Court sat as an appellate court over a magistrate's decree in succession matters.

p. 2

Legal principles established

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  • No appeal lies to the Court of Appeal against a decision of the High Court in its appellate jurisdiction in succession matters, because section 50(1) of the Law of Succession Act makes that decision final
  • The general right of appeal under section 66 of the Civil Procedure Act cannot override the specific and finality provision of section 50(1) of the Law of Succession Act

Court orders

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  1. 1.The notice of motion dated 13th July 2009 and lodged on 15th July 2009 is allowed
  2. 2.Civil Appeal No. 139 of 2009 is struck out
  3. 3.Respondents awarded costs of the motion and of the struck out appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Embu
H.C.C.A. No. 46 of 2005
Jurisdiction invoked
Section 3(1) of the Appellate Jurisdiction Act (Cap 9) and section 64(1) of the former Constitution; jurisdiction held excluded by section 50(1) of the Law of Succession Act (Cap 160)

Relief refused

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The appellant's attempt to sustain Civil Appeal No. 139 of 2009 against the High Court decree in a succession matter

Section 50(1) of the Law of Succession Act makes the High Court's decision final and deprives the Court of Appeal of jurisdiction

p. 2

Costs

Costs of the motion and of the struck out appeal awarded to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

No appeal lies to this Court under section 50 (1) of the Law of Succession Act and as we have said the provisions of section 66 of the Civil Procedure Act cannot over-ride the specific provisions of section 50 (1).
p. 2Finality of High Court appellate decisions in succession matters
Section 50 (1) of the Law of Succession Act specifically deprives the Court of jurisdiction to hear appeals under that section.
p. 2Exclusion of Court of Appeal jurisdiction by statute
We accordingly allow the notice of motion dated 13th July, 2009 and lodged in the Court on 15 th July, 2009 with the result that Civil Appeal No. 139 of 2009 be and is hereby struck out.
p. 2Final orders - striking out the appeal
We award to the respondents costs of the motion and of the struck out appeal. Those shall be the Court’s orders.
p. 2Costs order

Issues in the judgment

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minor

Appeal number inconsistency in opening paragraph

minor

Motion date inconsistency between narrative and orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Francis Gachoki Murage v Juliana Wainoi Kinyua & Another", Case Analysis (2010). Civil Appeal (Application) 139 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/484/eng@2010-06-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.