(Read time: 20 mins)
Introduction
Over decades, litigants and litigation practitioners have been left uncertain as to whether succession disputes originally filed and determined in the High Court require leave to file an appeal before the Court of Appeal.
Albeit, succession matters and in particular succession appeals, are governed by the Law of Succession Act, Cap 160 separate from the Civil Procedure Rules, 2010. More specifically, any intended appeal (succession) is governed by the tenets of Section 50(1) of the Law of Succession Act. However, the Act only provides for appeals to the High Court from subordinate courts i.e. Magistrate’s and Kadhi’s Courts.
The Act however, as read wholly is silent on appeals from the High Court to the Court of Appeal save for appeals emanating from the Kadhi’s Courts which are appealable to the Court of Appeal only upon granting of the requisite leave.
Statutorily therefore, there exists no automatic right to appeal a decision on a succession matter from the High Court while exercising original jurisdiction. Nevertheless, the Constitution of Kenya, 2010 at Article 164(3) grants the Court of Appeal jurisdiction to hear and determine appeals from the High Court. The conflation of the statute vis-à-vis Constitution have been the foundation of the numerous conflicting decisions at the Court of Appeal on the matter.
On 31st March, 2026 the Supreme Court of Kenya (SCORK) delivered a judgment touching on the issue of the automatic right to appeal from the High Court (exercising original jurisdiction) on succession matters. The root of the judgment stems from an avalanche of conflicting decisions of the Court of Appeal.
Concisely, the issue for determination before the SCORK was whether in light of Article 164(3) of the Constitution of Kenya, 2010 leave is a pre-requisite for lodging an appeal to the Court of Appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter.
History of the case
Magu Mwenje (deceased intestate), passed away (1998) leaving behind his estate to be inherited by his wife, Annah Wanjiku (mother to among others, the Appellant; Eliud Mwendia). Being the deceased’s statutory wife, she petitioned for letters of administration of her deceased husband’s estate in the Magistrate’s Court at Kerugoya. Conversely, Jane Muthoni (mother to among others, the Respondent; Kevin Wanjohi) objected to the petition on account of having been excluded in the succession process. In Jane Muthoni’s case, she argued being the deceased intestate’s other wife by dint of being inherited as a wife by the deceased upon the passing of her husband, the deceased’s late brother. In its judgment delivered in 2002, the Magistrate held that both women were wives to the deceased and confirmed the grant of letters. Annah would later on confirmation of grant proceedings contest the legitimacy of Jane’s marriage to the deceased intestate but which was dismissed by the court and the grant confirmed. Annah would thereafter be substituted by her son, the Appellant on application by Jane Muthoni. Sometime in 2005, the Appellant would also protest to the issuance of grant to Jane Muthoni on account of her marital status with the deceased. The court found that Jane was the deceased’s wife and confirmed the grant including her as an additional unit.
At the High Court, Muchelule J held that the issue of the marriage was no longer in dispute as it had been determined in the Magistrate’s court and the decision unchallenged. However, the Court agreed with the appellant on the nullity of proceedings on the basis of that the Appellant was substituted as an Administrator without his consent. A retrial of the confirmation of grant was thereby ordered upon proper substitution of Annah Wanjiku’s estate.
Jane Muthoni would however file a fresh petition at the Kerugoya High Court and the deceased Appellant was successfully substituted by the Appellant herein. The Appellant would later on in the proceedings oppose the confirmation of the grant on the basis that Jane Muthoni was not the deceased intestat’s wife and consequently, her children were not dependants of the deceased. The High Court again confirmed that the issue of whether Jane and her children were dependants of the deceased intestate was long settled. The estate was subsequently distributed in accordance with Section 40 of the Law of Succession Act.
Unwavered, the Appellant lodged an Appeal at the Court of Appeal in Nyeri bordering on the same issues earlier raised i.e. the legitimacy of the marriage and dependency between Jane Muthoni and her dependants respectively vis-à-vis the deceased intestate. In its judgment, the three-judge bench held that the issue of Jane Muthoni’s status as a widow was conclusively determined at the Magistrate’s court. Also held, was that the appeal was incompetent having emanated from the High Court in exercise of its original jurisdiction. That considering Section 50 of the Law of Succession Act is silent on appeals directly from the High Court, the Appellant ought to have sought leave prior to lodging the Appeal.
The Appellant yet again appealed to the Supreme Court under Article 163(4)(b). This time, having obtained leave from the Court of Appeal. In truncation, he sought to overturn the decision of the Court of Appeal barring him from lodging an appeal with leave of the High Court.
Analysis of the case
At the substantive hearing of the matter, it was the Appellant’s case that Article 164(3) of the Constitution of Kenya establishes a general right to appeal from the High Court to the Court of Appeal despite there existing numerous cases positing that leave must first be sought from the court exercising original jurisdiction. References were made to impugned judicial decisions such as Boit v Kumin; Boit & Another (Interested Parties) (2025) and Esther Kabon Rokoch & Another v Kobilo Chepkiyen & Another (2021).
To support his argument meanwhile, he credits the decision of the Court of Appeal in Re Estate of R.B.C (2023).
He argued that rejection of appeals in succession matters from the High Court is tantamount to affronting Article 27 of the Constitution of Kenya which provides the requirement of equal treatment.
The Respondent in his argument, posited that the right to appeal a succession matter from the High Court to the Court of Appeal is qualified upon grant of leave.
On extrapolation of Article 164(3)(a) of the Constitution, he argued that the same merely donates the Court of Appeal appellate jurisdiction but does not create un unqualified right of appeal from every decision of the High Court.
Be that as it may, the SCoRK in its independent analysis ceded that the matter fell under its jurisdiction by dint of Article 163(4) of the Constitution of Kenya, 2010 touching on issues of general public importance.
In particular, the chief issue framed for determination was as follows;
“Whether, in light of Article 164(3)(a) of the Constitution, leave is a prerequisite for lodging an appeal to the Court of Appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter.”
SCoRK drew the clear line of distinction between Article 164(3)(a) as read in tandem with the prescribed limites of the appellate jurisdiction of the Court of Appeal. It considered its previously rendered decision in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (2019) where it held that while Article 164(3) of the Constitution, 2010 establishes the appellate jurisdiction of the Court of Appeal, it does not itself create a right of appeal. That right must be expressly provided either by the Constitution or by statute. A party seeking redress from a High Court of original jurisdiction to the Court of Appeal must therefore identify the legal provision granting the right to appeal.
However, SCoRK did not shy to acknowledge the casus omissus created by Sections 47 and 50 of the Law of Succession Act, Cap 160 Laws of Kenya. Concisely, at paragraph 40 of its judgment, it coins as follows;
“As is readily apparent, these statutory provisions are silent and do not expressly provide for appeals to the Court of Appeal from decisions of the High Court rendered in exercise of original jurisdiction in succession matters. What, then, is the implication of this statutory silence?”
In adopting critical analysis of the matter, the SCoRK traced the evolution of judicial opinion on the right to appeal to the Court of Appeal in succession matters where reference was made to the following cases;
- Margaret M. John v Davis J. Kibwana (1996) KECA 212 (KLR);
- Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another (2014) KECA 225 (KLR);
- Francis Gachoki Murage v Juliana Wainoi Kinyua & Another, Civil Appeal (Application) No. 139 of 2009;
- Machuka & Another v Nyangute & Another (2025) KECA 538 (KLR); AND
- In Re Estate of R.B.C (2023) KECA 1553 (KLR).
With reference to Margaret M. John v Davis J. Kibwana (1996) KECA 212 (KLR), the SCoRK found that despite succession proceedings being separate from civil proceedings, Section 47 of the Law of Succession Act creates a nexus with Section 66 of the Civil Procedure Act by empowering the High Court to pronounce decrees and make orders, thereby allowing appeals to the Court of Appeal from the High Court.
On further examination of the other referenced decisions, it was SCoRK’s finding that the requirement for leave is neither implied nor inferred from statutory silence but is a deliberate legislative prescription. Therefore, in the absence of such express stipulation, the requirement for leave in succession matters cannot be assumed to arise from statute but instead judicial prescription.
The Law of Succession Act being a self-contained regime, is therefore independent from the application and imports of the Civil Procedure Rules except only in clearly recognized instances. The inadequacy of Section 50 of the Law of Succession Act therefore invites the application of judicial interpretation and prescription rather than statutory interpretation and application.
Conclusion of the SCoRK
In the upshot, the court determined that there is no legal basis for imposing a requirement of leave as a prerequisite for lodging an appeal to the Court of Appeal against the decision of the High Court rendered in the exercise of its original jurisdiction in a succession mater. The requirement ought to fall being neither supported nor provided for by either the Constitution of Kenya, 2010 or any other statute.
Apropos to the above, the Court also noted that despite there being no legislative overlook on the issue, succession proceedings arising from magistrate’s courts enjoy an automatic right of appeal to the High Court. Therefore, for litigants filing their matters in the High Court to be denied such corresponding right is not only discriminatory but also incongruous.
Therefore, in buttressing their holding in the matter, SCoRK stood guided by Article 20(3) of the Constitution of Kenya, 2010 which obligates courts in applying the Bill of Rights, to develop the law to the extent that it does not negatively affect a right or fundamental freedom.
Editor’s conclusion
Divergence in judicial opinion is a clear impediment to the progressive steadiness of the dispensation of justice. It not only creates uncertainty, but also invites scrutiny from various stakeholders in the justice system and which puts to question the foundation and basis of most decisions devoid of their consideration of other pertinent issues such as lack of statutory framework.
Inferences
- Where procedural provisions are imported from the civil process to succession proceedings, and those provisions allow an appeal as of right, the requirement for leave does not arise.
- Natural rights supercede inequities from procedural voidness; Courts are under a duty to ensure that where existing laws yield outcomes inconsistent with a right or fundamental freedom of a person, such laws are infused with the normative content of the Bill of Rights.
Disclaimer:
The information contained in this alert should neither be construed as legal advice from JRO ADVOCATES LLP and/or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter.
At JRO ADVOCATES LLP we continue to monitor the implementation of the law and provide first hand and prompt feedback. For more information or queries, please contact our team of experienced advocates for any clarifications or appointments through +254113230047 or via email through info@jroadvocatesllp.co.ke
Author:
Trevor Omondi
