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Court of AppealStruck OutCivil Application No. NAI. 69 (UR 56) of 2014

Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another [2014] KECA 255 (KLR)

Court of Appeal
14 November 2014
DMD. K. MusingaWilliam OukoW. OukoSKS. Gatembu Kairu
3,056 words in judgment
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The bottom line

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The Court of Appeal struck out a late succession appeal application, confirming you need leave and a valid grant of representation before appealing probate decisions.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Musinga, Ouko and Gatembu, JJ.A) disposed of an application for leave to appeal to the Court of Appeal against a High Court ruling by Musyoka, J. dated 31 January 2014 in Succession Cause No. 1366 of 1995. The High Court had found that the testator's will excluded the applicant's family from LR No. 11595, barred an interment of the applicant's mother's remains on that property, and that the matter was res judicata. The Court of Appeal framed two questions: whether leave is required to appeal to it from High Court decisions in probate matters, and whether the applicant had locus standi. On the substantive jurisdictional question, the Court held that under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal from the High Court exercising original jurisdiction in succession matters; an aggrieved party must first seek leave from the High Court and, if refused, may apply to the Court of Appeal. This qualified but did not depart from Makhangu v Kibwana, and drew support from Article 164(3) of the 2010 Constitution. However, the application itself failed on competency: it was filed on 4 April 2014, far outside the fourteen days prescribed by rule 39(b) of the Court of Appeal Rules, and the applicant, lacking a grant of representation at filing (a limited grant ad litem issued only on 25 June 2014), had no capacity, a later grant not relating back. The Court declared the application incompetent and struck it out with costs.

Questions the Court framed

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

  1. 1.Whether leave of the Court is required to appeal to the Court of Appeal from a decision of the High Court in probate and administration matters
  2. 2.Whether the applicant has locus standi to bring the application for leave
  3. 3.Whether the application for leave was filed within the prescribed fourteen days

Key legal issues

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01

Whether leave is required to appeal to the Court of Appeal from High Court decisions in probate and administration matters

Holding

Leave is required; there is no automatic right of appeal. The High Court should grant leave under section 47 of the Law of Succession Act and Rule 47 of the Probate and Administration Rules, and where refused, leave may be sought from the Court of Appeal.

Reasoning

Section 50 of the Act makes the High Court's decision on appeals from magistrate's courts final, and section 47 does not mention appeals to the Court of Appeal. The Makhangu line of cases allowing appeals via the Civil Procedure Act has been criticised but not departed from. Article 164(3) of the 2010 Constitution directly confers appellate jurisdiction but does not confer an unlimited right of appeal unrestricted by statute. Leave requirements promote finality and expedition in probate disputes.

p. 5
02

Competency of the application for delay and lack of capacity

Holding

The application was incompetent: it was filed on 4 April 2014, long after the fourteen days allowed following the refusal of leave on 31 January 2014, and the applicant had no grant of representation when he filed it.

Reasoning

Rule 39(b) requires an application for leave within fourteen days of refusal by the superior court. The applicant himself deposed that he only obtained a limited grant ad litem on 25 June 2014, after filing. Following Virginia Wamboi Otieno and Trouistic, an action by an intended administrator before a grant issues is incompetent at inception and a later grant does not relate back.

p. 3

Legal principles established

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  • Under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal from the High Court exercising original jurisdiction in probate matters; an appeal lies only with leave of the High Court or, where leave is refused, with leave of the Court of Appeal.
  • Leave to appeal will be granted only where a prima facie case meriting serious judicial consideration is shown.
  • An action brought by an intestate's intended administrator before issuance of a grant of representation is incompetent at inception; a later grant does not relate back.
  • A court's jurisdiction flows from the Constitution or statute or both, and cannot be assumed, donated by parties, or arrogated by the court itself.
  • An application for leave to appeal under rule 39 of the Court of Appeal Rules must be made within fourteen days of the decision or of the refusal of leave by the superior court; non-compliance goes to competency.

Court orders

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  1. 1.The application is declared incompetent and struck out with costs

The bench

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

DM
majority
William Ouko
W. OukoJA
Currently serving
majority
SK
majority
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 1366 of 1995
Jurisdiction invoked
Rules 39, 41 and 43 of the Court of Appeal Rules; Article 164(3) of the Constitution; section 3(1) of the Appellate Jurisdiction Act

Relief refused

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Leave to appeal to the Court of Appeal against the High Court ruling of 31 January 2014

The application was filed out of the prescribed fourteen days and the applicant lacked capacity, having no grant of representation at the time of filing

p. 5

Costs

Application struck out with costs (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.

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
p. 5Leave requirement for appeals in succession matters
an action brought by an intestate's intended administrator before the issuance of a grant of representation is incompetent at the date of its inception, even if a grant is obtained within a week, or a month or even a year afterwards. It does not relate back
p. 3Capacity without a grant of representation
a court's jurisdiction flows from either the Constitution or statute or both... It cannot be assumed or donated by parties or arrogated by the court itself. Jurisdiction is everything and if a court does not have it, it downs tools
p. 4Nature of jurisdiction
For the first two reasons, we declare that the application is incompetent and accordingly strike it out with costs.
p. 5Final orders - disposition

Issues in the judgment

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minor

The judgment's final paragraph is not preceded by a formal 'IT IS ORDERED' or 'DISPOSITION' heading; the disposition appears in a narrative paragraph.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another [2014] KECA 255 (KLR)", Case Analysis (2014). Civil Application No. NAI. 69 (UR 56) of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/255/eng@2014-11-14

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