Johnstone Ombima Okwaro & 1 other v Dorcas Okwaro & 2 others
The bottom line
#The Court of Appeal confirmed that succession appeals to it require leave first — without it, a stay application fails.
What this practically means
#Executive summary
#Key legal issues
#Whether leave is required before appealing to the Court of Appeal from a High Court decision in a succession cause
Leave of the High Court (or of the Court of Appeal where leave is refused there) is required; there is no automatic right of appeal under the Law of Succession Act.
The Court noted that Section 50 of the Law of Succession Act is silent on appeals from the High Court to the Court of Appeal where the High Court exercises original jurisdiction. Two lines of authority conflicted. The Court preferred the later decisions (Kithaka and Kioi), holding that the Law of Succession Act must be strictly construed and that leave promotes finality and expedition in probate disputes.
Whether the applicants satisfied the rule 5(2)(b) principles for stay pending intended appeal
They did not; without leave, the intended appeal could not be said to be arguable, so the nugatory aspect need not be considered.
The Court found that leave had been obtained neither in the High Court nor in the Court of Appeal. It therefore doubted whether the intended appeal would be arguable, one of the two limbs of the rule 5(2)(b) test, and declined to exercise its discretion in the applicants' favour without addressing the nugatory-prong.
Legal principles established
#- Appeals from the High Court to the Court of Appeal in succession causes, where the High Court exercises its original jurisdiction, lie only with the leave of the High Court (or of the Court of Appeal if leave is refused); there is no automatic right of appeal.
Court orders
#- 1.The application dated 31st July 2018 seeking stay of execution pending appeal is dismissed with no order as to costs
- On appeal from
- High Court of Kenya at Kisumu
- Succession Cause No. 109 of 1987
- Jurisdiction invoked
- Rules 1(2), 5(2)(b) and 42 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnstone Ombima Okwaro & 1 other v Dorcas Okwaro & 2 others", Case Analysis (2019). Civil Application No. 72 of 2018 (UR. 47/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/134/eng@2019-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.