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Court of AppealStruck OutCivil Application No. Nyeri (notice of motion dated 5th November 2024)

Gachigua v Mbugua & 2 others (Civil Appeal E112 of 2024) [2025] KECA 1401 (KLR)

Court of Appeal of Kenya
31 July 2025
1,035 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out a succession appeal application because the appellant never obtained the required leave to appeal first.

What this practically means

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Executive summary

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The applicant, a grandson of the deceased Sophia Watare Gachigua, obtained letters of administration intestate over LR No. Konyu/Baricho/2133 from the High Court at Nyeri in 2014. The estate was distributed among eleven beneficiaries by judgment of 24th November 2016. After the trial court was informed that the applicant refused to implement the distribution, it on 24th June 2024 removed him as administrator and appointed two new administratrices to implement the confirmed grant within six months. The applicant filed a notice of appeal and a notice of motion under Rule 5(2)(b) of the Court of Appeal Rules seeking an injunction restraining the respondents from subdividing, transferring or interfering with the suit property pending his intended appeal, alleging fraud and unlawful replacement as administrator. The respondents opposed, contending that in a succession matter there is no automatic right of appeal and that the applicant had not sought or obtained leave, that he had no arguable appeal, and that the impugned orders did not disturb the 2016 distribution. The Court of Appeal at Nyeri (Ole Kantai, Lesiit and Muchelule, JJ.A) held that no leave had been sought or obtained, so the notice of appeal was invalid; without a valid notice of appeal the Court's jurisdiction was not properly invoked and the application was incompetent. The motion was struck out with costs to the respondents.

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 has made a case for an injunction pending the hearing and determination of his intended appeal
  2. 2.Whether, absent leave to appeal in a succession matter from the High Court's original jurisdiction, the notice of appeal was valid and the Court's jurisdiction properly invoked

Key legal issues

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01

Whether the Court of Appeal's jurisdiction is properly invoked by an application under Rule 5(2)(b) where no leave to appeal has been obtained in a succession matter

Holding

The application is incompetent and struck out because a valid notice of appeal is a precondition to invoking the Court's jurisdiction, and the applicant never sought or obtained leave to appeal

Reasoning

The matter was a succession cause filed in the High Court's original jurisdiction. In such matters there is no automatic right of appeal to the Court of Appeal; the intending appellant must first seek leave from the High Court and, if refused, from the Court of Appeal. The applicant conceded no such step. His notice of appeal was therefore invalid, and without a valid notice of appeal the Court's jurisdiction was not properly invoked, rendering the Rule 5(2)(b) application incompetent.

p. 3

Legal principles established

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  • There is no automatic right of appeal to the Court of Appeal in succession matters originating in the High Court; a party must first seek and obtain leave from the High Court, failing which leave may be sought from the Court of Appeal, and without leave the notice of appeal is invalid and the Court's jurisdiction is not properly invoked

Court orders

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  1. 1.The notice of motion dated 5th November 2024 is struck out with costs to the respondents

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 Nyeri
Jurisdiction invoked
Intended appeal from the High Court in its original succession jurisdiction, requiring leave; application under Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Injunction restraining the respondents from subdividing, transferring, charging or otherwise interfering with the suit property pending the intended appeal

The application was incompetent because the applicant had not obtained leave to appeal in a succession matter, so no valid notice of appeal existed and the Court's jurisdiction was not properly invoked

p. 3

Costs

The notice of motion dated 5th November 2024 is struck out with costs to the respondents

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.

Without a valid notice of appeal, the jurisdiction of this Court has not been properly invoked. The application is incompetent.
p. 3Jurisdiction and validity of notice of appeal
That being the case, the notice of motion dated 5th November 2024 is struck out with costs to the respondents.
p. 3Final orders
A person seeking to appeal has to seek leave from the High Court. If it is not granted, he can seek it from this Court.
p. 3Leave requirement in succession appeals

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, "Gachigua v Mbugua & 2 others (Civil Appeal E112 of 2024) [2025] KECA 1401 (KLR)", Case Analysis (2025). Civil Application No. Nyeri (notice of motion dated 5th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1401/eng@2025-07-31

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