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Court of AppealAllowedCivil Appeal (Application) No. 93 of 2018

Murimi & another v Mwita & another (Civil Appeal 93 of 2018) [2019] KECA 422 (KLR)

Court of Appeal of Kenya
31 July 2019
AMAsike MakhandiaPKP. KiageJOJ. Otieno-Odek
1,156 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal a succession ruling without first getting the court's permission.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Makhandia, Kiage and Otieno-Odek, JJA) on a Notice of Motion dated 9th August 2018 by the applicants seeking to strike out the record of appeal in Civil Appeal No. 93 of 2018. The appeal, brought by the respondents, was lodged against a ruling of the High Court at Migori (A. C. Mrima, J.) delivered on 11th October 2017 in Migori HCCC No. 440 of 2015, which revoked and annulled letters of administration relating to the estates of Chacha Mwita Murimi and Murimi Mwita Murimi. The applicants argued that, being a succession matter, no automatic right of appeal lay without leave of the High Court or of the Court of Appeal, and that no leave had been sought or obtained. They relied on Rhoda Wairimu Karanja v Mary Wangui Karanja and Josephine Wambui Wanyoike v Margaret Wanjari Kamau, and on Rule 84 of the Court of Appeal Rules, which requires such an application to be filed within 30 days of service of the record; the application was served on 1st August 2018 and filed on 14th August 2018, within time. The respondents relied on Makhangu v Kibwana to argue that appeals in succession matters are routinely entertained. The court found no evidence that leave to appeal had been obtained, reaffirmed the Karanja and Wanyoike authorities, and noted that Makhangu had already been considered in Karanja. The motion was allowed and the record of appeal was struck out with costs to the applicants. This ruling binds lower courts on the requirement of leave before appealing from High Court succession decisions.

Questions the Court framed

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

  1. 1.Whether the application to strike out the record of appeal was filed within the 30-day period required under Rule 84 of the Court of Appeal Rules
  2. 2.Whether the respondents required leave of the High Court or of the Court of Appeal to institute an appeal against the ruling of the High Court in a succession matter
  3. 3.Whether the record of appeal filed without such leave should be struck out

Key legal issues

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01

Whether leave is required before appealing from a High Court succession ruling to the Court of Appeal

Holding

Yes - there is no automatic right of appeal under the Law of Succession Act; leave of the High Court, or of the Court of Appeal if leave is refused below, is required. The respondents obtained no such leave, so the record of appeal was incompetent and was struck out.

Reasoning

The court reaffirmed its previous decisions in Rhoda Wairimu Karanja and Josephine Wambui Wanyoike, which held that no automatic right of appeal attaches to High Court decisions in succession matters. It found no evidence on record that leave of the High Court or of the Court of Appeal had been obtained, held the Makhangu v Kibwana decision had already been considered and analysed in Rhoda Wairimu Karanja, and concluded the appeal was improperly instituted without leave.

p. 2
02

Compliance with Rule 84 timing for an application to strike out a record of appeal

Holding

The application, filed on 14th August 2018 after service of the record on 1st August 2018, was within the 30-day window; the respondents did not refute this compliance.

Reasoning

Rule 84 requires that an application to strike out a record of appeal be filed within 30 days of service of the record. Service occurred on 1st August 2018 and the motion was lodged on 14th August 2018 and served on 20th August 2018. The court was satisfied the application complied with the rule and noted the respondent did not contest this compliance.

p. 2

Legal principles established

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  • In succession matters there is no automatic right of appeal to the Court of Appeal; an appeal lies from a decision of the High Court exercising original jurisdiction under the Law of Succession Act only with leave of the High Court, or with leave of the Court of Appeal where the application for leave is refused.
  • An application to strike out a record of appeal under Rule 84 of the Court of Appeal Rules must be filed and lodged within 30 days of service of the record of appeal.

Court orders

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  1. 1.The Notice of Motion dated 9th August 2018 is allowed
  2. 2.The record of appeal filed in Civil Appeal No. 93 of 2018 is struck out
  3. 3.Costs of the application are awarded to the applicants

The bench

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

AM
majority
PK
majority
JO
majority
On appeal from
High Court of Kenya at Migori
Migori HCCC No. 440 of 2015
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules (application to strike out a record of appeal); appeal against a ruling of the High Court in a succession cause

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.

We allow the Notice of Motion dated 9 th August 2018 with the result that the record of appeal filed in Civil Appeal No. 93 of 2018 be and is hereby struck out with costs to the applicant.
p. 2Final orders - striking out of record of appeal
in succession matters, there is no automatic right of appeal without leave of court.
p. 2Leave requirement for appeals in succession matters
…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. 2Statement of the leave requirement from Rhoda Wairimu Karanja adopted by the court

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, "Murimi & another v Mwita & another (Civil Appeal 93 of 2018) [2019] KECA 422 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 93 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/422/eng@2019-07-31

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