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Court of AppealDismissedCivil Application dated 20th May 2024 (arising from Eldoret High Court Succession Cause No. 350 of 2015)

Maina v Cheptepkeny & 4 others (Civil Application E027 of 2024) [2025] KECA 833 (KLR)

Court of Appeal of Kenya
16 May 2025
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a bid to appeal a succession ruling because the application for leave was filed late, past the strict 14-day deadline.

What this practically means

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Executive summary

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This Court of Appeal at Nakuru (Mativo, Gachoka and Odunga, JJA) heard a Notice of Motion dated 20th May 2024 by Gilbert Kiplimo Maina seeking leave to appeal against a High Court ruling of 25th April 2024 in Eldoret High Court Succession Cause No. 350 of 2015, together with a stay of execution and implementation of the orders arising from that ruling pending his intended appeal. The ruling under attack had reviewed the mode of distribution of the estate, enhancing some awards, removing some beneficiaries, introducing new parties and making awards in their favour. The applicant argued the review ignored the finality of litigation, functus officio and res judicata, and that without a stay, subdivision of the land and transfer of titles to third parties would render the appeal nugatory. The respondents contended the applicant had not met the conditions for stay, that the judgment had already been implemented, and that the appeal was not arguable. The court held that leave is required in succession matters because the Law of Succession Act contains no express right of appeal to the Court of Appeal from High Court decisions, following its decision in Mughal & Rashid v Bhola. The application, filed on 20th May 2024 in respect of a decision made on 25th April 2024, was outside the 14 days prescribed by Rule 41(1) of the Court of Appeal Rules and was therefore incompetent. Since the intended appeal would be still-born and incapable of being arguable, no stay could issue. The whole application was dismissed with no order as to costs, the dispute being a family succession matter. The decision below was not disturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant requires leave to appeal against the High Court ruling of 25th April 2024 in a succession matter
  2. 2.Whether the application for leave was filed within the prescribed 14-day period under Rule 41(1) of the Court of Appeal Rules
  3. 3.Whether a stay of execution and/or implementation of the orders arising from the ruling should be granted pending the intended appeal

Key legal issues

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01

Whether leave to appeal is required for appeals from the High Court in succession matters

Holding

Leave is required; the Law of Succession Act has no express provision allowing an aggrieved party to appeal to the Court of Appeal against High Court decisions in succession matters, so leave of the High Court or of this Court must first be obtained.

Reasoning

The court adopted its own recent decision in Mughal & Rashid v Bhola, which held that Section 50(1) & (2) of the Law of Succession Act is the only provision dealing with appeals and covers only Resident Magistrates' Courts and Kadhi's courts. Since a right of appeal cannot be assumed and must have clear statutory authority, an appeal filed without the necessary leave is incompetent and will be struck out.

p. 3
02

Whether the application for leave was filed within time

Holding

The application was incompetent because it was filed outside the 14-day window prescribed by Rule 41(1) of the Court of Appeal Rules.

Reasoning

The decision sought to be appealed against was made on 25th April 2024, yet the motion was dated 20th May 2024, clearly outside the 14 days prescribed under the Rules. Where an application for leave is made to the High Court and refused, the party must move the Court of Appeal within 14 days of such refusal, per the decisions in Awadh Saleh Said Sherman and Manase Makio.

p. 3
03

Whether a stay of execution pending the intended appeal could issue

Holding

Stay was refused because an appeal filed without the required leave is still-born, and a still-born appeal cannot be arguable.

Reasoning

The court reasoned that since the application for leave was incompetent, the intended appeal could never come into existence. The arguability and nugatory-ness limbs on which a stay ordinarily rests presuppose a viable appeal. Relying on Muhamed Yakub & Another v Mrs Badur Nasa, the court found no purpose would be served by granting the stay.

p. 3

Legal principles established

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  • Where leave to appeal is required, the application may be made informally or orally at the time the decision is made, or formally within 14 days of that decision; where leave is first sought in the superior court and refused, the party must move the Court of Appeal within 14 days of such refusal.
  • A right of appeal must be clearly and expressly provided by statute; unless such a right exists, an appeal cannot be sustained, and where leave is required it must first be obtained or the appeal is incompetent.

Court orders

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  1. 1.The whole application dated 20th May 2024 is dismissed
  2. 2.No order as to costs, this being a succession dispute revolving around the estate of a deceased person

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Eldoret
Succession Cause No. 350 of 2015
Jurisdiction invoked
Leave to appeal and stay of execution under Rule 41(1) of the Court of Appeal Rules, in respect of a succession decision of the High Court

Relief refused

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Leave to appeal against the ruling delivered on 25th April 2024

The application was filed outside the 14-day period prescribed under Rule 41(1) of the Court of Appeal Rules, rendering it incompetent

p. 3

Stay of execution and/or implementation of the orders resulting from the ruling pending the intended appeal

Without leave to appeal the intended appeal would be still-born and cannot be arguable, so no purpose would be served by granting a stay

p. 3

Costs

No order as to costs - each party to bear their own costs, this being a succession dispute revolving around the estate of a deceased person

Quotable passages

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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 this case the decision sought to be appealed against was made on 25th April 2024. The instant application is dated 20th May 2024, clearly outside the 14 days prescribed under the Rules.
p. 3Time limits for applications for leave to appeal under Rule 41(1)
It follows that the application for leave is incompetent. Without leave to appeal, the intended appeal would be still-born and a still-born appeal cannot be said to be arguable.
p. 3Effect of failure to obtain leave on intended appeal and associated stay
In the premises, the whole application is misconceived and dismiss it but with no order as to costs, this being a succession dispute revolving around the estate of a deceased person.
p. 3Final orders and costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maina v Cheptepkeny & 4 others (Civil Application E027 of 2024) [2025] KECA 833 (KLR)", Case Analysis (2025). Civil Application dated 20th May 2024 (arising from Eldoret High Court Succession Cause No. 350 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/833/eng@2025-05-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.