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Court of AppealStruck OutCivil Application (Motion on notice) arising from Succession Cause No. 964 of 2013

Kibara v Kibara (Civil Application E083 of 2024) [2025] KECA 1091 (KLR)

Court of Appeal
20 June 2025
956 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a stay application in a succession dispute because the applicant never obtained the mandatory leave to appeal.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nyeri, delivered on 20th June 2025 by Kantai, Lesiit and Ali-Aroni, JJA, dealt with a Motion on notice by Peter Muriithi Kibara seeking a stay of execution of a ruling and subsequent Certificate of Confirmed Grant in Succession Cause No. 964 of 2013 before Mwongo, J., in the estate of Kibara Njagi, who died on 4th February 1978 leaving four wives and thus four houses under Kikuyu customary law. The High Court had found that gifts inter vivos had been made to some houses but not the fourth, and, applying section 42 of the Law of Succession Act, dismissed the protest and confirmed the petitioner's proposed mode of distribution, including distribution of land parcel Inoi/Ndimi/276. Before the Court of Appeal, the applicant relied on sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The Court noted that the Civil Procedure Act has no application in that Court save to specific provisions. The decisive point was that the applicant had never obtained leave to appeal, a prerequisite in succession matters under the Law of Succession Act. Applying its own decisions in Nkoliai v. Ololparaki and John Mwita Murimi, the Court held it lacked jurisdiction and struck out the application as incompetent, with no order on costs. The decision below was not disturbed on the merits.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal has jurisdiction to entertain an application for stay of execution where the applicant never obtained leave to appeal in a succession matter
  2. 2.Whether the applicant had been properly served with the hearing notice

Key legal issues

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01

Whether leave to appeal is a prerequisite for appeals and incidental applications in succession matters

Holding

Yes. The Law of Succession Act provides no express right of appeal to the Court of Appeal; appeals lie only with leave of the High Court or, if refused, leave of the Court of Appeal. Without leave, the Court lacks jurisdiction and the application is struck out.

Reasoning

Relying on Nkoliai v. Ololparaki and John Mwita Murimi, the Court reconciled Article 163(4) of the Constitution, section 3(1) and (2) of the Appellate Jurisdiction Act and the Law of Succession Act. Section 3(1) of the Appellate Jurisdiction Act limits appeals from the High Court to those prescribed by an Act of Parliament; the Law of Succession Act prescribes none. Since the applicant had no answer to the leave question, the Court struck out the application as incompetent.

p. 2

Legal principles established

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  • Under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal from decisions of the High Court exercising original jurisdiction; leave is a prerequisite, and an appeal or application filed without leave is incompetent and liable to be struck out.
  • The Civil Procedure Act and the Civil Procedure Rules have no application in the Court of Appeal save to specific provisions.

Court orders

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  1. 1.The application for stay of execution is struck out as being incompetent
  2. 2.No order on costs

The bench

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

majority

Wrote the judgment

majority
majority
On appeal from
High Court
Succession Cause No. 964 of 2013 (In the matter of the estate of Kibara Njagi - deceased)
Jurisdiction invoked
Article 164(3) of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010 invoked by the applicant (the Court holding the Civil Procedure Act inapplicable save to specific provisions)

Relief refused

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Stay of execution of the ruling and subsequent Certificate of Confirmed Grant pending the hearing and determination of the Motion

The applicant required leave to appeal in the succession matter and had not obtained it, so the Court lacked jurisdiction to entertain the application

p. 3

Costs

There will be no order on costs.

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.

It is our conclusion that leave to appeal was a pre-requisite in the present appeal. We note that the same was not obtained prior to filing of this appeal. Consequently, this Court lacks the requisite jurisdiction to hear and determine this appeal.
p. 3Leave to appeal in succession matters - jurisdiction
We note that Civil Procedure Act and the rules made thereunder have no application in this Court save to specific provisions.
p. 2Inapplicability of the Civil Procedure Act in the Court of Appeal
Likewise, as in the Nkoliai (supra) case, the applicant required to apply for and obtain leave to appeal in the succession matter. Having not done so we lack jurisdiction to entertain this application which we hereby strike out as being incompetent. There will be no order on costs.
p. 3Disposition - striking out for want of jurisdiction; no order on costs

Issues in the judgment

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minor

The judgment does not state the name of the respondent or the case number of the application before the Court of Appeal; the record begins directly with the High Court dispute.

minor

The record appears to interpose a stray numbered fragment ('17.') within a quotation from John Mwita Murimi, and paragraph 7 and 8 are split mid-sentence ('The / respondent had not filed written submissions'), indicating a formatting irregularity in the certified copy.

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, "Kibara v Kibara (Civil Application E083 of 2024) [2025] KECA 1091 (KLR)", Case Analysis (2025). Civil Application (Motion on notice) arising from Succession Cause No. 964 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1091/eng@2025-06-20

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