Sakwa & another v Sakwa & another (Civil Appeal (Application) E369 of 2020) [2023] KECA 679 (KLR)
The bottom line
#The Court of Appeal dismissed a family's attempt to appeal an inheritance ruling because they skipped the required first step of asking the High Court for permission.
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 were entitled to leave from the Court of Appeal to appeal against the High Court ruling of October 14, 2020 in a succession matter
- 2.Whether the Court had jurisdiction to entertain the application for leave and stay of execution
Key legal issues
#Whether leave to appeal in succession matters lies from the Court of Appeal without prior recourse to the High Court
Leave must first be sought from the High Court and only from the Court of Appeal where the High Court has declined leave; the applicants did not do so, so the application was incompetent
The Court relied on Rhoda Wairimu Karanja, John Mwita Murimi and James Mithia Gichembu, holding that under the Law of Succession Act there is no express automatic right of appeal to the Court of Appeal from the High Court's original jurisdiction. Rule 41(1) of the Court of Appeal Rules requires leave applications to this Court only where leave has been sought from and refused by the High Court. The applicants failed to demonstrate such prior application, leaving the Court without jurisdiction.
Whether the Court could consider the stay of execution and restraint prayers
Having found the leave limb incompetent, the Court had no jurisdiction to interrogate the merits of the remaining prayers
Once the Court found the applicants had not satisfied the prerequisite for granting leave in a succession matter, it concluded it lacked jurisdiction over the entire application. It invoked the principle that a court without jurisdiction must down tools, and declined to engage with the stay and restraint prayers or the disputes over the partial confirmation and alleged intermeddling.
Legal principles established
#- In succession matters there is no automatic right of appeal to the Court of Appeal from the High Court exercising original jurisdiction; leave must first be sought from the High Court, and only sought from the Court of Appeal if the High Court declines to grant leave
- A court's jurisdiction flows from the Constitution or statute and cannot be assumed or donated by parties; a court without jurisdiction must down tools
Court orders
#- 1.The application dated November 25, 2020 is dismissed as incompetent
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Leave provisions of the Court of Appeal Rules, Rule 41(1), read with section 47 of the Law of Succession Act; the court held appeals from the High Court in succession matters lie only with leave
Relief refused
#Leave to appeal against the ruling/order of the High Court dated October 14, 2020
No appeal lies to the Court of Appeal in succession matters except with leave, and leave must first be sought from the High Court; the applicants did not demonstrate they sought or were refused leave in the High Court, so the Court had no jurisdiction
Stay of execution of the High Court ruling and orders of October 14, 2020, and restraint against intermeddling with the estate
The Court lacked jurisdiction over the application once leave to appeal was found incompetent; it could not interrogate the merits
Costs
Each party to bear its own costs, the Court noting this is a family matter
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.
Accordingly, in succession matters, leave must first be sought from the High Court and only sought from this Court if the High Court declines to grant leave.
Jurisdiction is everything and if a court does not have it, it downs tools.
The upshot is that the application dated November 25, 2020 is incompetent and is accordingly dismissed. This being a family matter, the order that commends itself to us is that each party bears its own costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sakwa & another v Sakwa & another (Civil Appeal (Application) E369 of 2020) [2023] KECA 679 (KLR)", Case Analysis (2023). Notice of Motion dated November 25, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/679/eng@2023-04-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.