[2019] KEHC 10755 (KLR)
The court found that the application was improperly before it, as the correct forum for seeking the transfer of the succession cause was the court in Nanyuki, which has jurisdiction over the matter. The judge noted that the assertion that the deceased died in Nyeri County was not accurate, and that prior...
Source-derived case information.
- Citation
- [2019] KEHC 10755 (KLR)
- Parties
- Applicant: Beatrice Wanjugu Mwaniki and 6 others; Respondent: Josephine Wanjiku Mwaniki
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 1 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Succession Cause
- Outcome
- application struck out
- Judges
- NA Matheka
- Legal Topics
- Transfer of Succession Cause, Jurisdiction of Court, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Wanjugu Mwaniki and 6 others
Applicant
Josephine Wanjiku Mwaniki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Succession Cause
Legal Issues
- 1 Whether the High Court at Nyeri has jurisdiction to transfer Nanyuki CM Succession Cause No. 25 of 2017 to Nyeri CM's court.
- 2 Whether the application for transfer should be made before the Judge in Nanyuki.
Ratio Decidendi
The court found that the application was improperly before it, as the correct forum for seeking the transfer of the succession cause was the court in Nanyuki, which has jurisdiction over the matter. The judge noted that the assertion that the deceased died in Nyeri County was not accurate, and that prior proceedings, including a burial dispute, had already been heard and determined in Nanyuki. Therefore, the High Court at Nyeri lacked the proper jurisdiction to entertain the application for transfer, and the application was struck out accordingly.
Court Disposition
application struck out
Orders
- The application is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
MISC P&A APPLICATION NO. 1 OF 2018
BEATRICE WANJUGU MWANIKI AND 6 OTHERS....APPLICANTS
-VERSUS-
JOSEPHINE WANJIKU MWANIKI...............................RESPONDENT
RULING
The application before is a Summons general dated 16th January 2018 brought under rule 73 of the P&A rules. It seeks an orders that Nanyuki CM Succession Cause no 25 of 2017 be transferred to Nyeri CM’s court for hearing and disposal. The grounds are that the parties are residents of Nyeri County, the estate of the deceased is situated in Nyeri County where the deceased also died. That the transfer will ease the cost of travelling.
The application is supported by the affidavit of Beatrice Wanjugu Mwaniki sworn on 16th January 2018. It is opposed vide the replying affidavit of Josephine Wanjiku Mwaniki on 5th March 2018, and further affidavit sworn on 5th October 2018.
A perusal of the affidavits reveals that the succession cause sought to be transferred relates to the estate of FRANCIS MWANIKI NJOGU in respect of whom a burial dispute was filed, heard and determined in Nanyuki PMCC No 4 of 2011, while his body was preserved at the Nanyuki District Hospital.
Without going into the merits of the application before me, it already appears to me that it is not correct that deceased died in Nyeri County.
In any event the correct position would be to have this application made before the Judge in Nanyuki as it is a matter within his jurisdiction.
The application is struck out with no orders as to costs.
Dated, delivered and signed this 18th day of January 2019.
Mumbua T. Matheka
Judge
In the presence of:
Bwononga for Respondent
Ms.Muriuki holding brief for Lucy Mwai for citees.
Court Assistant-Emmanuel
Mumbua T. Matheka
Judge