Saheel Rashid Mughal & Arfhan Rashid (suing As The Legal Representatives of The Estate of The Late Rashid Mughal) & 1 other v Mohammed Shabir Bhola
The bottom line
#The Court of Appeal dismissed a succession appeal because the appellants never obtained the required leave to appeal, so their family land dispute was never heard on its merits.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal is a prerequisite to an appeal to the Court of Appeal in a succession matter determined by the High Court exercising original jurisdiction
Yes. The Law of Succession Act contains no express right of appeal to the Court of Appeal against High Court decisions in succession matters; an appeal must lie under a written law and, where leave is required, it must first be sought from the High Court and, if refused, from the Court of Appeal.
Section 50(1) & (2) of the Law of Succession Act only provides for appeals from Resident Magistrates' Courts (final at the High Court) and from the Kadhi's Court to the Court of Appeal with leave on points of Muslim law. Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act confers jurisdiction only over appeals that lie under any law. Since no written law creates an express right of appeal here, and leave is a jurisdictional fact, the absence of leave is fatal to the appeal.
Whether the alleged consent order of 30th May 2018 granting leave to appeal existed
No. The Court scrutinised the entire record and found the alleged consent does not exist; no leave was sought or granted by the High Court.
The 1st appellant's counsel relied on a consent order recorded on 30th May 2018 in Civil Application No. 108 of 2016 but could not point to its location in the record. The Court, obliged to scrutinise the record in search of the truth, verified the entire record and confirmed the alleged consent does not exist, concluding no leave was sought or granted.
Whether conflicting Court of Appeal decisions (Julius Kamau Kithaka vs Rhoda Wairimu Karanja line) and the expansion of the court hierarchy justify dispensing with leave
No. The decision in Julius Kamau Kithaka was an extension-of-time ruling by a single judge which did not conclusively settle the point, and Francis Gachoki Murage in fact supports the leave requirement; rules of procedure do not cure a jurisdictional defect.
The Court read Julius Kamau Kithaka and found it was a single-judge extension-of-time application whose grant of extension did not extinguish the leave objection. Francis Gachoki Murage actually held that where there is no automatic right of appeal, leave must be sought. The Court applied the South African authority of Newlands Surgical Clinic that leave is a jurisdictional fact without which the court has no jurisdiction.
The merits of the appeal against the distribution of the net intestate estate and the validity of the agreement dated 8th August 1996
Not reached; the Court declined to delve into the merits after finding the appeal incompetent for want of leave.
Having found the jurisdictional defect dispositive, the Court did not consider the appellants' grounds challenging the impugned judgment of Emukule, J., including the validity of the family agreements, alleged bias and the proposed mode of distribution.
Legal principles established
#- Leave is a prerequisite to an appeal to the Court of Appeal against a decision of the High Court sitting as a court of first instance in a succession matter; where leave is refused by the High Court, the party must seek leave from the Court of Appeal
- A right of appeal must be clearly and expressly provided by a written law; it cannot be assumed, and an appeal filed without the requisite leave is incompetent
- An appeal filed without the necessary leave, where such leave is required by law, is incompetent and will be struck out
- Where leave is required and refused by the High Court, the aggrieved party may apply to the Court of Appeal for leave; the right to appeal is neither automatic nor absolute
- A decision of a single judge of the Court of Appeal cannot override a decision of a full bench on the leave requirement in succession matters
Court orders
#- 1.The appeal is dismissed for want of jurisdiction, the appellants having failed to obtain the requisite leave to appeal
- 2.Each party to bear own costs for the appeal
- On appeal from
- High Court of Kenya
- Succession cause (not stated); impugned judgment delivered 14th November 2014 by Emukule, J.; grant earlier revoked by Ouko, J. by ruling dated 4th March 2011
- Jurisdiction invoked
- Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act - appeals which lie to the Court of Appeal under any written law; section 50(1) & (2) of the Law of Succession Act on leave to appeal in succession matters
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#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
- Rural Housing Estates v Sophia Cherotich Sisiwa & 3 others[2025] KECA 2041 (KLR)28 Nov 2025followed
- Emily Jebor Rono & 1 other v Esther Jeptanui Lagat & 1 other[2025] KECA 626 (KLR)4 Apr 2025applied
- Solomon Boit v Evaline Cherutich Kumin[2025] KECA 568 (KLR)28 Mar 2025followed
Cite this brief
#Cite this brief
Caselaw, "Saheel Rashid Mughal & Arfhan Rashid (suing As The Legal Representatives of The Estate of The Late Rashid Mughal) & 1 other v Mohammed Shabir Bhola", Case Analysis (2025). Court of Appeal at Nakuru, Civil Appeal (judgment dated 28th February 2025; 1st appellant's memorandum of appeal dated 13th June 2018; 2nd appellant's supplementary memorandum of appeal dated 3rd April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/420/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.