https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10648

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **MISC. SUCCESSION CAUSE NO. E002 OF 2022** **IN THE MATTER OF THE ESTATE OF ELIUD GICHANGI GITABI alias GICHANGI GITABI ELIUD (DECEASED)** **MICHAEL WACHIRA GITABI......................................................................1ST APPLICANT** **RACHAEL WANJIKU GITABI......................................................................2ND APPLICANT** **JOSEPH GICHANGI MURIUKI.....................................................................3RD APPLICANT** **VERSUS** **CHARITY MUTHONI GITABI…...........................................PETITIONER/RESPONDENT (DECEASED)** **HANNA WANJIKU GITABI........................................................................1ST RESPONDENT** **NANCY WANGECI WANGUHU................................................................3RD RESPONDENT** **FAITH WAMBUI KINYANJUI...................................................................4TH RESPONDENT** **ROSE WANJIRU MURIITHI......................................................................5TH RESPONDENT** **SAMMY MWAURA KIURA........................................................................6TH RESPONDENT** **ANN WANJIKU NDUNGU...........................................................................7TH RESPONDENT** **RULING** 1. By a Notice of Motion under certificate of urgency dated 29/9/2025 brought under Rules 63 and 73 of the Probate and Administration Rules, Order 45 of the Civil Procedure Rules, section 47 of the Law of Succession Act, the 3rd - 6th Respondents seek that, *“The Honorable Court be pleased to review its orders contained in its ruling delivered on 14th August, 2025 and amend, vary, reverse or set them aside and substitute them with an order striking out the application for revocation/annulment of the Magistrate’s Court’s grant with costs.”* 2. The application is supported by the grounds on the face of it and an affidavit sworn by the 4th Respondent, on even date. She faults the court for inadvertently failing to consider ground one of the Preliminary Objection on jurisdiction, thus necessitating this application for review. 3. The 3rd - 6th Respondents swore a supplementary affidavit on 19/12/2025 in support of the application. 4. The Applicants opposed the application vide a replying affidavit sworn by Michael Wachira Gitabi, the 1st Applicant herein on 4/11/2025. He terms the application an abuse of the court process and a calculated move to further delay the final determination of this matter. According to him, this court retains supervisory power over the Magistrate’s Court in matters of succession, and can entertain applications for revocation of grant where there are substantial grounds, and therefore, the amendment of Section 48 (1) of the Law of Succession Act does not oust this court’s jurisdiction. Previously, Justice Mwongo declined to transfer the cause to the magistrate’s court and directed the same be heard before this court due to the weighty issues being raised. The striking out of pleadings is a draconian remedy which should be exercised with caution to prevent miscarriage of justice. **Submissions** 1. The Applicants urge that the conditions for grant of review under Order 45 of the Civil Procedure Rules have not been met, and cite ***National Bank of Kenya Limited v Ndungu Njau [2008] KECA 188 (KLR)***. They contend that Sections 48 and 49 of the Law of Succession Act merely expand the original jurisdiction of the Magistrate’s Courts in succession matter within defined limits, but do not oust this court’s jurisdiction, and cite ***Re Estate of Grace Bartonjo (Deceased) [2025] KEHC 18843 (KLR)***. They urge that the present application is a delay tactic aimed at frustrating the expeditious disposal of the matter. 2. The 3rd - 6th Respondents urge that the court’s inadvertent failure to make a determination on the issue of jurisdiction amounts to an error apparent on the face of the ruling and it is a sufficient ground to warrant grant of the review sought. They urge that the application for revocation of grant is incompetent and improperly before this court, as the magistrate’s court has jurisdiction to hear and determine it by dint of sections 48 and 49 of the Law of Succession Act and sections 23 and 24 of the Magistrate’s Court Act. They pray for the application to be allowed, and cite ***In Re Estate of Lawrence Kaplelach Karonei (Miscellaneous Succession Cause E006 of 2024) [2025] KEHC 8605 (KLR) (20 June 2025) (Ruling), Musine v Osamo (Sued as co-administrator of the Estate of Stephen Osamo (Deceased) (Miscellaneous Application E012 of 2022) [2023] KEHC 20217 (KLR) (17 July 2023) (Ruling), In Re Estate of Charles Boi (Deceased***[***[2020] KEHC 1263 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/1263/eng%402020-12-04) ***and Masibo v Masibo (Miscellaneous Succession Application E008 of 2021) [2023] KEHC 18608 (KLR) (19 June 2023) (Ruling)***. **Analysis and Determination** 1. The issue for determination is whether the threshold for review has been met. 2. A court can only review its decision upon proof of any of the conditions as listed under Order 45 of the Civil Procedure Rules as follows: ***“i. That there is discovery of new and important evidence which was not available to the applicant when the judgment or order was passed despite having exercised due diligence; or ii. That there was a mistake or error apparent on the face of the record; or iii. That sufficient reasons exist to warrant the review sought. In addition to proving the existence of the above grounds, the applicant must also demonstrate that the application was filed without unreasonable delay.”*** 1. As properly urged by the 3rd – 6th Respondents, this court, in its impugned ruling dated 14/8/2025 did not address the question whether it was clothed with jurisdiction to hear and determine the summons for revocation of a grant issued by the chief magistrate’s court. 2. It is thus axiomatic that at the hearing of the Preliminary Objection, the question of jurisdiction was not determined. 3. The record shows that the grant sought to be revoked was issued on 24/11/2011 in Kerugoya Chief Magistrate’s Court Succession Cause No. 192/1991. Therefore, the summons for revocation of grant filed in this miscellaneous succession cause ought to have been filed in the first instance at the Chief Magistrate’s Court. 4. Section 48 of the Law of Succession Act provides that, ***“Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7 of the Magistrates’ Courts Act (Cap 10). (2) For the avoidance of doubt it is hereby declared that the Kadhis’ courts shall continue to have and exercise jurisdiction in relation to the estate of a deceased Muslim for the determination of questions relating to inheritance in accordance with Muslim law and of any other question arising under this Act in relation to such estates.”*** 5. Section 49 of the Law of Succession Act provides that, ***“The Magistrate’s Court within whose area a deceased person had his last known place of residence shall, if the gross value of the estate of the deceased does not exceed the pecuniary limits set out in section 7 (1) of the Magistrates’ Courts Act (Cap 10), have in respect of that estate the jurisdiction conferred by section 48. Provided that — (i) the magistrate may, with the consent or by the direction of the High Court, transfer the administration of an estate to any other Magistrate’s court where it appears that the greater part of the estate is situated within the area of that other magistrate or that there is other good reason for the transfer; (ii) if the deceased had his last known place of residence outside Kenya, the High Court shall determine which magistrate shall have jurisdiction under this section; (iii) every Magistrate’s Court shall have jurisdiction, in cases of apparent urgency, to make a temporary grant of representation limited to collection of assets situated within his area and payments of debts, regardless of the last known place of residence of the deceased.”*** 6. Section 7 (3) (f) of the Magistrates’ Court Act provides that, ***“A magistrate’s court shall have jurisdiction in proceedings of a civil nature concerning any of the following matters under African customary law — intestate succession and administration of intestate estates, so far as they are not governed by any written law.”*** 7. On 29/7/2024, Mr. Mugambi for the Applicants told this court that, ***“The Summons for Revocation of Grant is dated 16th May 2022.”*** 8. Mr. Muchiri for the 3rd – 6th Respondents stated that, ***“The Court has no jurisdiction. The matter is Res Judicata and can only be filed in lower court.”*** 9. In response, Mr. Mugambi for the Applicants stated that, ***“No objection to the file being referred to lower court.”*** 10. The court thereafter directed Mr. Muchiri for the 3rd - 6th Respondents to file a Preliminary Objection within 15 days, without issuing any orders as to the transfer of the matter to the lower court. 11. In ***Musine v Osamo (Sued as co-administrator of the Estate of Stephen Osamo (Deceased) [2023] KEHC 20217 (KLR)***, cited by the 3rd – 6th Respondents, the court *(W. Musyoka J)* expounded that; ***“I have no original jurisdiction to revoke a grant made in a matter that is pending before the Chief Magistrate. That jurisdiction now rests with the Chief Magistrate, by dint of the current law. I can only exercise jurisdiction on revocation of a grant, in a cause being handled by a magistrate, by way of an appeal, from a decision of the magistrate revoking it.”*** 1. This court is therefore divested of the jurisdiction to hear and determine the summons for revocation of grant dated 16/5/2022 by dint of the provisions of sections 48 and 49 of the Law of Succession Act and section 7 of the Magistrate’s Court Act. 2. This court is thus satisfied that the threshold under Order 45 of the Civil Procedure Rules has been met, to warrant the review sought. **ORDERS** 1. Accordingly, for the reasons set out above, this court finds that the Summons for revocation of grant was improperly filed in this court and it is hereby struck out. The same shall be filed and heard in the Chief Magistrate’s Court at Kerugoya. 2. There shall be no orders as to costs. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Mugambi Njeru for the Respondents/Applicants. Ms. Wandia for 2nd respondent. Mr. I. W. Muchiri for the Applicants/3-6 Respondent.