Yunes Kerubo Oruta & 1 other v George Kombo Oruta & 1 other
The bottom line
#The Court of Appeal struck out a family inheritance appeal because no one had first obtained the court's permission (leave) to appeal a succession ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal lies to the Court of Appeal from a High Court decision in a succession cause without leave
No. The Law of Succession Act contains no automatic right of appeal to the Court of Appeal from High Court succession decisions; leave must be obtained from the High Court or, if refused, from the Court of Appeal.
Section 47 of the Law of Succession Act makes no mention of an appeal to the Court of Appeal from decisions of the High Court in its original jurisdiction. Section 50 provides for appeals only from subordinate and Kadhi's courts to the High Court, the latter's decision being final. Following Makhangu v Kibwana, Rhoda Wairimu Karanja, John Mwita Murimi and Francis Macharia Karanja, the Court held it lacked jurisdiction and downed its tools despite the appeal having been fully heard and the family nature of the dispute.
Whether a jurisdictional defect may be raised belatedly, in submissions rather than a preliminary objection, or by the court sua motu
Yes. Jurisdiction goes to the root of the court's authority and may be raised at any stage, including in submissions opposing an appeal, and the court may act on its own motion.
The Court noted the incompetence issue was raised as part of submissions rather than a preliminary objection, and that the appeal had already been heard. Relying on Francis Macharia Karanja and Hafswa Omar Abdalla Taib, it reaffirmed that a court can raise and determine jurisdiction suo motu, and that a jurisdictional defect must be addressed whenever confronted with it, however late.
Legal principles established
#- There is no automatic right of appeal to the Court of Appeal from decisions of the High Court in succession matters; leave of the High Court or the Court of Appeal must first be obtained.
- A jurisdictional issue is fundamental and must be addressed by a court whenever confronted with it, whether raised as an interlocutory issue, belatedly at the hearing, or by the court of its own motion.
Court orders
#- 1.The appeal is struck out as being incompetent for want of leave
- 2.Each party to bear own costs
- On appeal from
- High Court of Kenya at Kisii
- Kisii Succession Cause No. 169 of 2013
- Jurisdiction invoked
- Sections 47 and 50 of the Law of Succession Act, Cap 160; section 66 of the Civil Procedure Act; Rule 47 of the Probate and Administration Rules - appeal from High Court in succession matter requires leave
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yunes Kerubo Oruta & 1 other v George Kombo Oruta & 1 other", Case Analysis (2021). Civil Appeal No. 60 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/965/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.