https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8850

In re Estate of Kerich (Deceased) (Family Miscellaneous Application E020 of 2026) [2026] KEHC 8850 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8850 (KLR) Republic of Kenya In the High Court at Kapsabet Family Miscellaneous Application E020 of 2026 OA Sewe, J June 18, 2026 IN THE MATTER OF THE ESTATE OF KIPSOI ARAP KERICH (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR TRANSFER OF SUIT TO THE HIGH COURT In the matter of Gladys Jepkemboi 1st Applicant Elly Kipkosgei Misoi 2nd Applicant Ruling 1.The Notice of Motion dated 24th February 2026 was filed by Gladys Jepkemboi and Elly Kipkosgei Misoi (“the applicants”) pursuant to various provisions of the Constitution of Kenya 2010 and the Civil Procedure Act, Cap 21 of the Laws of Kenya. They also cited Section 47 of the Law of Succession Act, Cap 160, and Rule 73 of the Probate and Administration Rules. They prayed for orders that:(a)Spent(b)That the Court be pleased to call for Tinderet Magistrate’s Succession Cause No. E013 of 2023: In the Matter of the Estate of Kipsoi arap Kerich (Deceased) and order that the same be transferred to Kapsabet Magistrate’s Court for Hearing and determination.(c)That the costs of the application be in the cause. 2.The application was premised on the ground that the Petition was inadvertently lodged in Tinderet Magistrate’s Court yet the value of the subject matter is Kshs. 10,000,000/= and therefore in excess of the jurisdiction of the Senior Resident Magistrate, who is the highest ranking judicial officer at Tinderet Magistrate’s Court. The application was premised on the affidavit of Mr. Kipkosgei Choge, Advocate, sworn on 24th February 2026 in which he averred that the cause sought to be transferred was inadvertently filed at the Senior Resident Magistrate’s Court at Tinderet whose jurisdiction is capped at Kshs. 7,000,000/=. He posited that no prejudice would be suffered by the proposed transfer and that the application has been made in good faith. He also pointed out that both Tinderet Magistrate’s Court and Kapsabet Magistrate’s courts are under the general supervisory jurisdiction of this Court. 3.There is no doubt that the Court has jurisdiction to transfer a suit from one subordinate court to another or to itself for hearing and determination should sufficient cause be shown to warrant such transfer. Section 18(1) of the Civil Procedure Act is explicit in this regard. It provides that:(1)On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—(a)transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(b)withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—(i)try or dispose of the same; or(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(iii)retransfer the same for trial or disposal to the court from which it was withdrawn. 4.Section 7 of the Magistrate’s Courts Act specifies the pecuniary jurisdiction of the various cadres of Magistrates serving in various territorial jurisdictions in the country. It states:A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—(a)twenty million shillings, where the court is presided over by a chief magistrate;(b)fifteen million shillings, where the court is presided over by a senior principal magistrate;(c)ten million shillings, where the court is presided over by a principal magistrate;(d)seven million shillings, where the court is presided over by a senior resident magistrate; or(e)five million shillings, where the court is presided over by a resident magistrate. 5.It cannot be gainsaid therefore that the Senior Magistrate’s Court would not have jurisdiction to entertain a succession cause where the value of the estate, as is alleged herein, is valued at Kshs. 10,000,000/=. Indeed, Section 48(1) of the Law of Succession Act is explicit 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). 6.Needless to mention that Section 18 of the Civil Procedure Act presupposes that the suit sought to be transferred was filed in a court competent to try it in the first instance. It is now trite that a suit filed in a court without jurisdiction is null and void, and therefore incapable of being transferred. Indeed, in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel (supra) the Court of Appeal held:“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation.” 7.Similarly in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) the Court of Appeal held:“Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:-“When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing. 20.It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity.” 8.The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, thus:(154)However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.” 9.Moreover, Section 49 of the Law of Succession Act also envisages that the matter sought to be transferred be within the jurisdiction of the particular court concerned. It states: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. 10.[10] To the extent therefore that the cause sought to be transferred was filed before a court without of jurisdiction to entertain it, it follows that the jurisdiction to transfer is not available. The cause is null and void for all intents and purposes, save for purposes of withdrawal. The application dated 24th February 2026 is accordingly dismissed with no order as to costs.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAPSABET THIS 18TH DAY OF JUNE 2026…………………….……………….HON. OLGA SEWEJUDGE