Nderito v Nderito & 2 others (Civil Application E540 of 2024) [2025] KECA 259 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a probate appeal application because the applicant never obtained the mandatory court leave required to appeal in succession matters.
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 applicant was required to seek and obtain leave to appeal to the Court of Appeal from the ruling of the High Court in a succession cause
- 2.Whether the impugned ruling was a final determination such that leave was unnecessary
- 3.Whether the application should be struck out for failure to obtain leave
Key legal issues
#Whether leave to appeal is required for an appeal to the Court of Appeal from a decision of the High Court in a succession cause
Leave is required; there is no automatic right of appeal from the High Court's original jurisdiction under the Law of Succession Act, even where the decision finally disposes of the succession cause
The Court reiterated its settled jurisprudence in Rhoda Wairimu Karanja and John Mwita Murimi: the Law of Succession Act contains no express automatic right of appeal from the High Court exercising original jurisdiction. Leave of the High Court is required, and where refused, the applicant may seek leave of the Court of Appeal. Counsel's submission that a final decision confers an automatic appeal right was inconsistent with these express pronouncements.
Legal principles established
#- Under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal from a decision of the High Court exercising its original jurisdiction; leave of the High Court, or failing that leave of the Court of Appeal, is required
- An application for leave to appeal in a succession matter that is lodged without the required leave is bad in law and liable to be struck out
Court orders
#- 1.The application is struck out for being bad in law
- 2.The applicant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Probate and Administration Case HCFP&A 307 of 2006
- Jurisdiction invoked
- Court of Appeal's jurisdiction over appeals from the High Court exercising original jurisdiction in succession matters, which under the Law of Succession Act lies only with leave of the High Court or, if refused, with leave of the Court of Appeal
Relief refused
#Stay of execution of the ruling of Chemitei, J. dated 3rd October 2024 and of the distribution of the estate, injunctive orders against the respondents, and leave to appeal
The applicant had not sought and obtained leave to appeal from the High Court, which is a prerequisite for an appeal to the Court of Appeal in succession matters; the application was therefore bad in law and struck out
Costs
The applicant shall bear the costs of the application
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 view of the foregoing, we find and hold that the applicant did not seek leave to appeal from the decision of the High Court, as required. In the circumstances, this application is bad in law and is for striking out, which we hereby do. The applicant shall bear the costs of the application.
that under the Law of Succession Act, there is no express automatic right to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court exercising its original jurisdiction with leave of the High Court or where the application for leave is refused, with leave of this Court
We re-afirm the decisions of this Court in Rhoda Wairimu Karanja & Another v Mary Wangui Karanja and Another 2014] eKLR, and Josephine Wambui Wanyoike v Margaret Wanjari Kamau & Another [“2013] eKLR where it was clearly stated that in succession matters, there is no automatic right of appeal without leave of Court.
Issues in the judgment
#The names of the applicant and the respondents are never stated in the judgment; the parties are referred to only as 'the applicant' and 'the 1st and 2nd respondents'
Internal quotation from John Mwita Murimi contains typographical errors including mismatched bracket in the year citation and a contradictory statement that 'the respondents did not obtain leave to appeal' where the context indicates the applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nderito v Nderito & 2 others (Civil Application E540 of 2024) [2025] KECA 259 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/259/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.