Esther Kabon Rokocho & another v Kobilo Chepkiyen & another [2021] KECA 405 (KLR)
The bottom line
#The Court of Appeal struck out a stay application because the applicants never got the leave (permission) required to appeal a High Court succession ruling.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants required leave of the trial court or of the Court of Appeal to institute the intended appeal from the High Court sitting in original jurisdiction in a succession cause
- 2.Whether the Court could raise the jurisdictional defect on its own motion where the respondents did not oppose the application
- 3.Whether the applicants' application under Rule 5 for stay of proceedings could survive in the absence of leave
Key legal issues
#Whether the Court had jurisdiction to entertain the Rule 5 application for stay of proceedings
The application was incompetent and was struck out because the applicants never obtained leave to appeal from the High Court's succession ruling, which leave was a jurisdictional precondition.
The Court held that grievances arising from succession proceedings are subject to Section 47 of the Law of Succession Act and that an appeal from the High Court exercising original jurisdiction in a succession cause lies only with leave. Since no leave was sought or obtained from either the trial court or the Court of Appeal, the Court could not assume jurisdiction over the intended appeal or the application, even though the respondents never raised the issue.
Whether the jurisdictional point could be raised sua motu despite the respondents' non-participation
Yes; jurisdiction is a question of law the Court may raise and determine on its own motion.
Relying on its earlier decision in Hafswa Omar Abdalla Taib, the Court affirmed that questions of jurisdiction are issues of law that parties and their legal teams are deemed to know, and that the Court is entitled to act on its own motion on the crucial question of jurisdiction even where the point was not raised by any party.
Legal principles established
#- There is no automatic right of appeal to the Court of Appeal from a decision of the High Court in a succession cause in its original jurisdiction; leave of the trial court or of the Court of Appeal is imperative before an appeal may be instituted
- The Court of Appeal may, on its own motion, raise and determine the question of its own jurisdiction even where no party has raised it
Court orders
#- 1.The Notice of Motion dated 17th December 2020 struck out for want of jurisdiction
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Eldoret)
- Eld. HC. Succession Cause No. 304 of 2019 (referred to in the judgment as Succession Cause No. 304 of 2007)
- Jurisdiction invoked
- Rule 5 of the Court of Appeal Rules; the court sua motu considered whether leave to appeal from a succession cause under Section 47 of the Law of Succession Act had been obtained
Relief refused
#Stay of proceedings in the High Court succession cause pending hearing and determination of the intended appeal
The application was incompetent because no leave to appeal had been sought or obtained, and without such leave the Court lacked jurisdiction over the intended appeal and the application
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is trite law that there is no automatic right of appeal to this Court from a decision made by the High Court in a succession cause in its original jurisdiction.
There is no evidence on record that leave of the High Court or this Court was sought and obtained to institute an appeal which leave would grant jurisdiction to this Court to determine the said appeal or even this application.
That being our view of the matter the application is incompetent and is accordingly struck out with no order as to costs.
Issues in the judgment
#The judgment inconsistently numbers the succession cause, describing the appeal as arising from 'ELD. HC. SUCCESSION CAUSE NO. 304 OF 2019' in the caption but referring in the body to 'High Court Succession Cause No. 304 of 2007'
The judgment gives inconsistent dates for the dismissal of the application that is the subject of the intended appeal, referring to it as 'dated 18th July, 2018' and 'dismissed on the 10th July, 2018', while the caption says the ruling was dated 10th July 2019
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira)[2026] KESC 29 (KLR)31 Mar 2026
Cite this brief
#Cite this brief
Caselaw, "Esther Kabon Rokocho & another v Kobilo Chepkiyen & another [2021] KECA 405 (KLR)", Case Analysis (2021). Civil Application No. E059 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/405/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.