In re Estate of Wallace Mbogo Nguyu (Deceased) [2018] KECA 663 (KLR)

The Court held that appellate jurisdiction under Article 164 presupposes a hearing, a decision, and reasons in the court below. The formal Order referenced an application of 19th October 2012 and an affidavit not on record, no ruling was produced, no parties besides counsel and the appellant appeared, and no consent of all beneficiaries existed. The Court could not discern the basis of the distribution and therefore allowed the appeal and set the Order aside rather than rule on its merits.

The Court meticulously reconstructed the record and found the formal Order referred to an application of 19th October 2012 and a supporting affidavit of 14th December 2011, neither of which was on record, and a summons dated 14th December 2011 that could not be located. Nothing showed what material or law the judge relied on. The confusion was compounded by two parallel files and inconsistent claims about the estate's distribution. The Order was therefore unsustainable.

Given the absence of any reasoned decision and the appellant's counsel's own request for remittal, setting aside the Order alone would leave the succession cause unresolved. The Court therefore directed a fresh hearing before another judge of the Family Division, expressly excluding Kimaru, J. to avoid the appearance of a judge hearing matters arising from his own defective order, with costs tied to the eventual High Court outcome.