Kenya’s Law of Succession Act is silent on appeals to the Court of Appeal from the High Court’s original decisions in succession disputes. That silence has resulted in a series of conflicting decisions from the Court of Appeal. One school of thought has long held that leave is mandatory before appealing to the Court of Appeal from the High Court’s primary decisions on succession. The opposing school of thought has argued that Article 164(3)(a) of the Constitution grants an absolute right of appeal from the High Court to the Court of Appeal, so that no leave is required to appeal succession matters.

This week, the Supreme Court of Kenya issued a ruling voiding the need for leave to appeal to the Court of Appeal from the High Court’s original decisions in succession matters.

The appeal concerned a High Court decision confirming the grant in question. The Respondent argued that the right to appeal to the Court of Appeal from the High Court in succession causes was not inherent but depended on leave. The Appellants, however, asserted that appeals from the High Court to the Court of Appeal lie as of right, without the need for leave. The Court of Appeal held that one could only appeal with leave. Section 50(1) of the Law of Succession Act (allowing appeals in Muslim estates) was inapplicable. The Appellants urged the Supreme Court to resolve the conflicting case law.

Citing Nyutu Agrovet v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators–Kenya Branch [2019] KESC 11 (KLR), the Supreme Court distinguished between “jurisdiction” and “right of appeal.” The Court clarified that jurisdiction refers to the authority vested in a court to hear and decide a dispute, while the right of appeal is derived from the Constitution or statutes. Additionally, the apex court emphasised that Article 164 (3) only establishes appellate jurisdiction without, in itself, granting a substantive right of appeal. Therefore, a litigant intending to approach the Court of Appeal must explicitly identify the constitutional or statutory provision that confers such a right.

Here, the court, in interpreting sections 47 and 50 of the Law of Succession Act, identified a “statutory silence” regarding appeals to the Court of Appeal from decisions of the High Court made in its original jurisdiction in succession matters. To address this, the Supreme Court found it necessary to revisit the development of judicial opinion on the right of appeal in succession cases.

Drawing on M. John v David J Kibwana [1996] KECA 212 (KLR), the Court observed that the Court of Appeal had anchored the appellate right on the nexus between Section 47 of the LSA and Section 66 of the Civil Procedure Act. Section 47 effectively integrated succession proceedings within the Civil Procedure framework, thus opening an appellate pathway to the Court of Appeal. However, in Machuka & Another v Nyangute & Another [2025] KECA 538 (KLR), the Court of Appeal clarified that jurisdiction does not ipso facto confer an automatic right of appeal; rather, such a right is circumscribed and exercisable only upon leave of either the High Court or the Court of Appeal.

Resolving the issue, the Supreme Court clarified that when Parliament intends to make leave a prerequisite for appealing, it states this explicitly and unambiguously. The need for leave cannot be inferred from “statutory silence”; instead, it must be a clear legislative instruction. Therefore, the Supreme Court ruled that, in the absence of any explicit statutory restriction, a judgment of the High Court given in its original jurisdiction in a succession case can be appealed to the Court of Appeal as of right.

Conclusion
This decision opens the door for more appeals from the High Court’s primary decisions in succession cases to the Court of Appeal, potentially improving access to family justice. However, since succession disputes are often deeply contested, the Court of Appeal should prepare its systems for a rise in appeals from the Family Court. One approach would be to review and update Rule 5(2)(b) system and to allocate the freed-up resources to the increased appeal workload.

Ochiel Dudley FCIArb is a Dispute Resolution partner, and Rita Nyaigendia is a Trainee Lawyer at Bond Advocates LLP.

For any questions concerning this article, contact us through ochieljd@bondadvocates.com or rita@bondadvocates.com