Isaak Aliaza v Samuel Kisiavuki [2021] KECA 934 (KLR)
The bottom line
#The Court of Appeal struck out a late-appeal request because, in Kenyan succession cases, you must get the court's permission to appeal before asking for extra time.
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 Court has jurisdiction under Rule 4 to entertain an application for leave to file an appeal out of time where the intended appeal arises from succession proceedings and no leave to appeal has first been obtained
- 2.Whether the application for extension of time should be allowed on the grounds advanced by the applicant
Key legal issues
#Jurisdiction to entertain a Rule 4 extension-of-time application in a succession matter
The application is premature and must be struck out because the antecedent leave to appeal required in succession matters had not been sought or obtained.
The intended appeal arises from succession proceedings governed by section 47 of the Law of Succession Act. The Court, citing its consistent precedents, held that section 47 does not confer an automatic right of appeal; leave of the High Court or the Court of Appeal is a precondition. Since that precondition had not been satisfied, the Court could not assume jurisdiction to entertain a Rule 4 extension-of-time application, which is necessarily subsequent to and dependent on leave to appeal.
The Court's power to raise jurisdiction suo motu
The Court may, on its own motion, identify and determine a jurisdictional defect even where no party raises it, and must do so before addressing the merits.
Relying on Owners of the Motor Vessel 'Lillian S' and Francis Macharia Karanja, the judge held that jurisdiction is fundamental: a court without jurisdiction must down tools, and jurisdiction cannot be donated by parties or assumed by the court. Accordingly, although the application was unopposed, the judge was duty-bound to interrogate jurisdiction first, and the applicant's non-opposition could not cure the jurisdictional defect.
Legal principles established
#- There is no automatic right of appeal to the Court of Appeal from decisions of the High Court rendered in the exercise of its jurisdiction under the Law of Succession Act; an appeal lies only with leave of the High Court or, if refused, of the Court of Appeal.
- A jurisdictional issue, whether raised by the parties or noted suo motu by the Court, must be determined before the merits of any matter in controversy.
- An applicant must first obtain leave to appeal (from the High Court as the court appealed from, or from the Court of Appeal as the court appealed to) before seeking extension of time under Rule 4 to file the appeal out of time.
Court orders
#- 1.The application is struck out as being premature
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Kakamega Succession Cause No. 326 of 1994
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules; jurisdictional question arising under section 47 of the Law of Succession Act
Relief refused
#Leave to file an appeal out of time against the judgment of J. N. Njagi, J. dated 22nd May 2020, with the notice of appeal to be treated as duly filed
The application was premature because the applicant had not first obtained leave to appeal from the High Court or the Court of Appeal, as required in succession matters under section 47 of the Law of Succession Act
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.
In the result, the application is accordingly struck out as being premature for reasons given above, with no order as to costs.
The applicant has first of all to seek leave to appeal to this Court against the intended impugned decision either from the High Court as the Court appealed from or from this Court as the Court appealed to before seeking leave to file the intended appeal out of time under Rule 4 of the Court of Appeal Rules.
Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given
in succession matters, there is no automatic right of appeal without leave of court.
Issues in the judgment
#The judgment is dated and delivered at Nairobi although the coram states the Court of Appeal at Kisumu, an internal inconsistency in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaak Aliaza v Samuel Kisiavuki [2021] KECA 934 (KLR)", Case Analysis (2021). Civil Application No. 68 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/934/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.