Roberts & another v Parsare & 5 others (Civil Appeal E004 of 2021) [2026] KECA 644 (KLR)
The bottom line
#The Court of Appeal struck out a succession appeal because the appellants never obtained the mandatory leave to appeal required before filing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave to appeal was required before lodging an appeal to the Court of Appeal in a succession matter
- 2.Whether, in the absence of leave, the appeal is competent
- 3.Whether the learned judge was required to give reasons under the proviso to Section 27 of the Civil Procedure Act for making no order as to costs (not reached)
Key legal issues
#Whether leave to appeal is required in succession matters
Yes - leave from the High Court, or on refusal from the Court of Appeal, is a mandatory prerequisite to an appeal in a succession matter
Relying on a consistent line of its own precedent including Rhoda Wairimu Karanja, John Mwita Murimi and Francis Macharia Karanja, the Court held that the Law of Succession Act contains no express automatic right of appeal and that Article 164(3) of the Constitution, while opening the door to appeals, does not dispense with the leave requirement. The requirement promotes finality and expedition in probate disputes and its abolition is a matter for the legislature.
Effect of filing an appeal without leave
The appeal is incompetent from inception and cannot confer jurisdiction on the Court
The Court held that jurisdiction either exists or it does not; it cannot be acquired by implication, agreement of the parties, passage of time, or the apparent strength of the grounds of appeal. The appellants' belief that they could come directly to the Court did not dispense with the imperative leave requirement. Accordingly the Court could not reach the merits of the challenge to the no-costs order.
Whether the Court may raise the leave issue suo motu
Yes, the Court may raise and act on a jurisdictional defect on its own motion even where neither party raises it
Although counsel addressed the merits of the costs order, the Court considered it necessary to first resolve the jurisdictional question of leave. It reaffirmed its earlier position that on a question of jurisdiction the Court is entitled to raise the issue and act upon it on its own motion, as earlier endorsed in Hafswa Omar Abdalla Taib and Francis Macharia Karanja.
Whether a succession judge must give reasons under the proviso to Section 27 of the Civil Procedure Act for departing from costs-follow-the-cause
Not determined; the Court noted the question may merit consideration in an appropriate case but lacked jurisdiction to decide it
The Court observed in fairness to the appellants that the grievance - whether a judge exercising succession jurisdiction must furnish reasons for departing from the costs-follow-the-cause principle and whether the order of 20th November 2020 met that standard - may well merit judicial consideration. However, since the appeal was lodged without leave and was incompetent, the merits could not be reached.
Legal principles established
#- There is no automatic right of appeal in succession matters from the High Court exercising original jurisdiction; leave must first be obtained from the High Court or, if refused, from the Court of Appeal
- An appeal filed without leave in a succession matter is incompetent from inception and does not vest jurisdiction in the Court of Appeal, regardless of the merits of the grounds
- The requirement of leave is a substantive jurisdictional gateway, not a mere technicality or formality
Court orders
#- 1.The appeal is struck out
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Succession Cause No. 3 of 2019
- Jurisdiction invoked
- Article 164(3) of the Constitution of Kenya, 2010, subject to the requirement of leave to appeal in succession matters under the Law of Succession Act
Relief refused
#Costs of the appeal to the appellants
The matter arises from a family estate and the leave requirement continues to generate genuine uncertainty among litigants
Determination of the merits of the costs order of 20th November 2020
An appeal filed without leave in a succession matter is incompetent and vests no jurisdiction in the Court, however meritorious the grounds
Costs
No order as to costs
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.
An appeal filed without leave in a succession matter is incompetent from its inception. It does not vest jurisdiction in this Court, however meritorious the grounds of appeal may appear to be.
The requirement of leave is not a mere formality but a substantive jurisdictional gateway.
The appeal is accordingly struck out. Taking into account that this is a matter arising from a family estate, and that the leave requirement, though well-established, is an area that continues to generate genuine uncertainty among litigants, we make no order as to costs.
Issues in the judgment
#The respondents' written submissions dated 8th March 2021 and list of authorities, said by their counsel to have been filed, do not appear on the record
The respondents' family name appears inconsistently as both 'Parsare' and 'Pasare' in the opening paragraphs of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Roberts & another v Parsare & 5 others (Civil Appeal E004 of 2021) [2026] KECA 644 (KLR)", Case Analysis (2026). Succession Appeal from Succession Cause No. 3 of 2019 (High Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/644/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.