In re Estate of M'Imirongo M'Uthaka (Deceased) [2023] KEHC 27046 (KLR)

In re Estate of M'Imirongo M'Uthaka (Deceased) (Succession Cause 308 of 2010) [2023] KEHC 27046 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27046 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 308 of 2010

TW Cherere, J

December 14, 2023

Between

Andrew Muriuki M’Uthaka

1st Petitioner

Patrick Kamengu

2nd Petitioner

John Mutuma Robert

3rd Petitioner

and

Susan Nkatha

1st Respondent

David Mugambi

2nd Respondent

Lucy Kamami

3rd Respondent

Fredrick Kaberia

4th Respondent

Alexander Mithika

5th Respondent

Mary Mwendwa

6th Respondent

Roseline Kinya

7th Respondent

and

Celina Nkirina Samuel

Applicant

Ruling

1. By ruling dated 15th July, 2021, this court dismissed an application by Celina Nkirina Samuel (Applicant herein) and Daniel Kirimi Mutua in which they sought to review an order of eviction from Plot at Laare Market that was issued on dated 27th April, 2020.

2. By summons dated 21st July, 2021 brought under Section 7 of the Appellate Jurisdiction Act, Section 47 of the Law of Succession Act and rules 49 and 70 of theProbate and Administration Rules, Applicant seeks leave to appeal the ruling dated 15th July, 2021. No response to the application was filed.

3. I have considered the application and I note that under the provisions of the Law of Succession Act (cap.160), there is no specific provision for filing an appeal to the Court of Appeal from a succession cause heard and determined by the High Court. However, courts have held that an appeal to the Court of Appeal can be filed, subject to leave being granted by the High Court or the Court of Appeal. This position was reiterated by the Court of Appeal in the case of Rhoda Wairimu Karanja & Another –vs- Mary Wangui Karanja & Another (2014) eKLR when the court stated as follows –“We think we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right to appeal to the Court of Appeal, that an appeal will lie to the Court of Appeal from the decision of the High Court exercising original jurisdiction with leave of the High Court or where the application for leave is refused, with leave of this court”

4. Under Article 50 of the Constitution, Applicant has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body and that includes an appeal from any decision as by law provided.

5. Consequently, and for the above reasons, Applicant is granted leave to appeal this court’s ruling dated 15th July, 2021.

DATED AT MERU THIS 14TH DAY OF DECEMBER 2023T. W. CHEREREJUDGEAppearancesCourt Assistant - Kinoti/MuneneFor Applicant - Mr. Kimani for Macharia Kimani AdvocatesFor Petitioners - N/A for Kobia Michubu & Co. AdvocatesFor Objectors - N/A for B.G.Kariuki & Co. AdvocatesPage 2 of 2