https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12547

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **SUCCESSION CAUSE NO. 336 OF 2013** **HON. JUSTICE ALEEM VISRAM** **30th July, 2026** **IN THE MATTER OF THE ESTATE OF ARVIND KANJI PREMJI PATEL (DECEASED)** **RULING** **Introduction** 1. Before Court is the Notice of Motion dated 26th January 2026 brought on behalf of the Estate of Arvind Kanji Premji Patel through the alternate executor named in the deceased's Will. The application principally invokes this Court's supervisory jurisdiction under Article 165(6) and (7) of the Constitution, Section 47 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules. 2. The applicant seeks orders that this Court calls for the record of proceedings in Chief Magistrate's Court Miscellaneous Succession Cause No. E155 of 2025, examines the legality of those proceedings and quashes the proceedings together with the Limited Grant of Letters of Administration Ad Litem issued therein. The applicant further seeks an order expunging the purported Notice of Withdrawal dated 22nd January 2026 and costs of the application. 3. The application is supported by the affidavit and annexures filed therewith together with detailed written submissions and supplementary submissions. The respondent, despite being served, elected not to file any replying affidavit or any evidence controverting the factual allegations contained in the Motion. **Background** 1. The deceased died testate leaving a Will dated 19th January 2013 appointing Hasmukh Kanji Premji Patel as executor and Ramesh Dhanji Harji as alternate executor. Probate was granted and administration of the estate commenced. 2. Thereafter, the respondents challenged the validity of the Will through revocation proceedings before this Court. Those proceedings culminated in a judgment delivered on 3rd May 2024 which upheld the validity of the Will, rejected allegations of fraud, forgery, undue influence and lack of testamentary capacity and dismissed the application seeking appointment of the respondents as administrators of the estate. The respondents lodged an appeal which remains pending before the Court of Appeal. 3. Following the death of the original executor on 29th August 2024, the alternate executor moved this Court seeking the issuance of a Grant De Bonis Non to enable completion of the administration of the estate. 4. Whilst that application remained pending before this Court, the 2nd respondent independently moved the Chief Magistrate's Court at Mombasa and obtained a Limited Grant of Letters of Administration Ad Litem on 19th November 2025. 5. It is the applicant's case that in obtaining that grant the 2nd respondent deliberately failed to disclose the subsisting judgment of this Court, the pending appeal, the existing proceedings before this Court and the true nature and value of the estate. It is further contended that he subsequently relied upon the impugned grant in an attempt to defeat and withdraw proceedings properly pending before this Court and to institute further proceedings founded upon the impugned grant. **The Preliminary Objection** 1. Before the hearing of the Motion, the 2nd respondent filed a Preliminary Objection challenging, among other matters, the competence of the application, the standing of the applicant and the jurisdiction of this Court to entertain the Motion. The objection was accompanied by written submissions. 2. The applicant filed comprehensive replying submissions demonstrating that the Motion did not seek revocation of a grant under section 76 of the Law of Succession Act but rather invoked this Court's supervisory jurisdiction under Article 165(6) and (7) of the Constitution to examine and quash proceedings undertaken by a subordinate court without jurisdiction and in abuse of process. 3. At the outset, I observe that the Preliminary Objection was filed on the eve of the hearing and outside the timelines prescribed under the Civil Procedure Rules. Ordinarily, parties are expected to raise such objections timeously so as to afford the opposing party a fair opportunity to respond and to facilitate the orderly conduct of proceedings. 4. Notwithstanding the delay, this Court considered it appropriate, out of abundance of caution and in the interests of determining all issues raised by the parties, to hear and determine the Preliminary Objection together with the substantive Motion. I have accordingly considered the objection, the written submissions filed in support thereof and the applicant's replying submissions before arriving at this decision. 5. Having done so, I find that the objection is without merit. 6. The gravamen of the objection is that the applicant ought to have proceeded by way of an application under section 76 of the Law of Succession Act before the Magistrate's Court which issued the impugned grant. Respectfully, that submission misconceives the nature of the present proceedings. 7. The Motion before this Court is not an application inviting this Court to revoke a grant on its merits under section 76 of the Law of Succession Act. Rather, it invokes this Court's constitutional supervisory jurisdiction over subordinate courts under Article 165(6) and (7) of the Constitution. The distinction is fundamental. 8. Article 165(6) vests the High Court with supervisory jurisdiction over subordinate courts and Article 165(7) empowers it to call for the record of proceedings before any subordinate court and make any order or give any direction appropriate to ensure the fair administration of justice. 9. Those constitutional powers exist independently of the appellate jurisdiction of this Court and independently of the statutory jurisdiction to revoke grants under section 76 of the Law of Succession Act. Where a subordinate court acts without jurisdiction, in excess of jurisdiction or in abuse of the process of the Court, this Court is constitutionally empowered to intervene. 10. The authorities cited by the applicant correctly distinguish supervisory jurisdiction from appellate jurisdiction and judicial review and recognise the Court's power to call for proceedings and quash proceedings undertaken without jurisdiction or in abuse of process. 11. Equally without merit is the contention that the applicant lacked standing. The material before Court demonstrates that the application is brought by the alternate executor named in the deceased's Will whose interest is directed solely towards preserving and completing the administration of the estate. In any event, supervisory jurisdiction under Article 165(6) may be invoked by any person who brings to the attention of the Court proceedings alleged to have been conducted without jurisdiction or in abuse of the process of the Court. 12. I therefore find that the Preliminary Objection discloses no pure point of law capable of disposing of the Motion. The same is dismissed. **Uncontroverted Evidence** 1. The respondent elected not to file any replying affidavit. 2. Consequently, the factual averments contained in the supporting affidavit remain substantially uncontested. Whilst the absence of a replying affidavit does not relieve the applicant of the burden of establishing its case, it does mean that the factual assertions properly deponed to remain unchallenged unless they are inherently incredible or otherwise contradicted by the record. 3. In the present case, no evidence has been placed before the Court contradicting the applicant's assertions regarding the obtaining of the impugned grant, the non-disclosure of material facts, the subsisting proceedings before this Court or the sequence of events leading to the filing of the present application. **Issues for Determination** 1. Having considered the pleadings, affidavits, submissions and authorities, the issues arising for determination are: a. Whether this Court should exercise its supervisory jurisdiction under Article 165(6) and (7) of the Constitution. b. Whether the Chief Magistrate's Court possessed pecuniary jurisdiction to issue the Limited Grant of Letters of Administration Ad Litem. c. Whether the impugned proceedings were obtained through concealment of material facts and abuse of the court process. d. Whether the proceedings and grant issued in Miscellaneous Succession Cause No. E155 of 2025 ought to be quashed. e. What orders should issue. **Analysis and Determination** **Whether this Court should exercise its supervisory jurisdiction** 1. The present Motion is not an appeal against the decision of the learned Principal Magistrate, nor is it an application for revocation of grant under section 76 of the Law of Succession Act. It invokes the constitutional supervisory jurisdiction of this Court under Article 165(6) and (7) of the Constitution over subordinate courts. 2. Article 165(6) vests in the High Court supervisory jurisdiction over subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. Article 165(7) empowers the Court, for purposes of that supervisory jurisdiction, to call for the record of any proceedings before such court or body and to make such order or give such direction as it considers appropriate to ensure the fair administration of justice. 3. In ***Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others (Interested Parties); Ex-parte Applicant: Pravin Galot(supra),*** the court stated as follows: ***“59. There is a clear distinction between supervisory jurisdiction, judicial review jurisdiction and appellate jurisdiction. Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere, and prevent usurpation. In order to exercise such control, the power is conferred on superior courts to issue the necessary and appropriate writs. (see,Gallagher v Gallagher 212 So. 2d 281,283(La. Ct.App.1968)).”*** 1. That constitutional jurisdiction is supplemented in succession matters by section 47 of the Law of Succession Act, which confers upon the High Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders as may be expedient. Rule 73 of the Probate and Administration Rules preserves the inherent jurisdiction of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Rule 49 further provides the procedural avenue for applications not otherwise specifically provided for under the Rules. 2. Where a subordinate court acts without jurisdiction, exceeds the jurisdiction conferred upon it by statute or where its process has been invoked through fraud, concealment or abuse, the High Court is not rendered powerless merely because the impugned order happens to be a grant issued in succession proceedings. In this regard, in [***Republic v Chief Magistrate, Mombasa & 3 others; Sega Ventures Limited & another (Interested Parties); Kirima (Ex parte) [2023] KEELC 180 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/180/eng%402023-01-24)the court stated that: ***“In my opinion supervisory jurisdiction under Article 165 (6) of the Constitution will be invoked by the court where the court identifies serious misdirection or error by the subordinate court which leads to a gross injustice for which the superior court must intervene so that justice is done. There are situations that cry and groan out for justice and it will be remiss for the court to close its ears to such cries.” (Emphasis mine)*** 1. The present matter presents such “a cry”. To hold otherwise would permit an illegal order of a subordinate court to stand until the very court that issued it is invited to pronounce upon its own jurisdiction. That is plainly not what the Constitution contemplates. 2. I therefore reject the respondent's contention that the applicant was confined to proceedings under section 76 of the Law of Succession Act. The present Motion properly invokes this Court's supervisory jurisdiction and is competently before Court. **Whether the subordinate court possessed jurisdiction** 1. Jurisdiction is the foundation upon which judicial authority rests. A court acting without jurisdiction acts in vain. Once it is demonstrated that jurisdiction is absent, every subsequent step founded upon the exercise of that jurisdiction is rendered a nullity. 2. The applicant contends that the learned Principal Magistrate lacked pecuniary jurisdiction to entertain Miscellaneous Succession Cause No. E155 of 2025 because the value of the estate substantially exceeded the monetary limit prescribed by law. 3. That contention was not answered by any replying affidavit. Indeed, no evidence whatsoever was placed before this Court disputing the value of the estate or the factual matters deponed to in the supporting affidavit. 4. More significantly, the record of this Court itself conclusively demonstrates the value of the estate. In the judgment delivered on 3rd May 2024, Mutahi, J. made orders requiring the executor to make further payments to specified beneficiaries and other persons in excess of Kshs.36 million. Those directions were made after the Court had already considered the administration of the estate. 5. The material placed before this Court further demonstrates, and it has not been disputed, that payments exceeding Kshs.60 million had already been made out of the estate before the subordinate court purported to issue the impugned Limited Grant. 6. These figures speak for themselves. An estate from which in excess of Kshs.60 million has already been distributed and which remains liable to make further payments exceeding Kshs.36 million cannot, by any reasonable measure, be regarded as an estate falling within a pecuniary limit of Kshs.20 million. 7. The unavoidable conclusion is that the estate was of a value substantially exceeding the pecuniary jurisdiction vested in the Magistrate's Court by section 48 of the Law of Succession Act as read together with section 7 of the Magistrates' Courts Act. 8. In Republic V Magistrates Court, Mombasa; Absin Synegy Limited (interested party), Judicial Review E033 of 2021 (2022) KEHC 10 (KLR), Mativo J (as he then was) stated as follows on the supervisory jurisdiction of the court: - **“The power conferred to this court under Article 165 (6) of the Constitution is used sparingly only when the lower court or tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction which is the case here. However, the High Court under the guise of Article 165 (6) cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. For it to interfere, there must be a case of flagrant abuse of fundamental principles of law or it can interfere where the order has resulted in grave injustice.”** 1. In the above matter, the court went on to conclude that: “The fact that the ***learned Magistrate assumed jurisdiction not expressly conferred upon him by the law and in a blatant breach of section 14 of the CPA is itself a proper case for this court to exercise its supervisory jurisdiction to prevent grave injustice and abuse of the law.” (emphasis mine)*** 1. The present matter is analogous. The learned Principal Magistrate incorrectly assumed jurisdiction over a matter that Parliament had reserved to the High Court. 2. The consequence in law is inescapable. Proceedings undertaken without jurisdiction are void ab initio and cannot be salvaged by considerations of convenience, acquiescence or subsequent events. Accordingly, the events present a proper case for the exercise of this courts supervisory jurisdiction. **Concealment of material facts and abuse of process** 1. Additionally, the circumstances under which the impugned grant was obtained are equally troubling. The evidence before this Court demonstrates that when the 2nd respondent approached the subordinate court he failed to disclose material facts that went to the very exercise of that court's jurisdiction. 2. He failed to disclose that this Court had already rendered a detailed judgment concerning the estate, upholding the validity of the deceased's Will and declining to appoint the respondents as administrators. 3. He failed to disclose that an appeal arising from that judgment was pending before the Court of Appeal. 4. He failed to disclose the subsisting proceedings pending before this Court relating to the administration of the estate and the application for a Grant De Bonis Non. 5. He likewise failed to disclose the true value of the estate, notwithstanding that the judgment of this Court had already dealt with substantial distributions and outstanding liabilities running into many tens of millions of shillings. 6. Those matters were plainly material. Had they been disclosed, they would necessarily have informed the subordinate court's consideration of both jurisdiction and the exercise of its discretion. 7. The duty of full and frank disclosure lies at the heart of all ex parte proceedings. That duty becomes even more exacting where a party seeks orders affecting the administration of an estate already subject to extensive proceedings before the High Court. 8. The Court is further satisfied that after obtaining the impugned grant, the 2nd respondent deliberately relied upon it in an attempt to interfere with proceedings already pending before this Court by purporting to file a Notice of Withdrawal in respect of the applicant's pending application. 9. Even more concerning is the uncontested evidence that the 2nd respondent thereafter approached the High Court seeking relief founded upon the authority of the impugned grant without disclosing that the grant itself had been procured from the subordinate court in the circumstances now disclosed before this Court. 10. Such conduct amounts to far more than mere procedural irregularity. It represents a calculated attempt to obtain inconsistent orders from courts of concurrent hierarchy by withholding material information. It is conduct that undermines the orderly administration of justice and cannot receive the approval of this Court. 11. Litigation is not a game of chance nor a contest in which parties are entitled to withhold material facts in the hope of securing a favourable order. Courts exercise judicial discretion upon the basis of complete and candid disclosure. Where jurisdiction is invoked through concealment of material facts, the resulting proceedings cannot be permitted to stand. **Conduct of the respondent** 1. Finally, and regretfully, I also consider it necessary to comment upon the conduct of the 2nd respondent during the hearing of this application. 2. Throughout the proceedings, the respondent conducted himself in a manner that was outright discourteous to the Court and inconsistent with the dignity expected of litigants appearing before a superior court. His conduct unnecessarily disrupted the orderly hearing of the application and fell well below the standard expected in judicial proceedings. 3. This Court therefore records its strong disapproval of the respondent's conduct. **Conclusion** 1. Having carefully considered the Motion, the affidavits, the written submissions, the preliminary objection and the applicable law, I am satisfied that the applicant has established a proper basis for the exercise of this Court's supervisory jurisdiction. 2. The proceedings before the Chief Magistrate's Court were undertaken in excess of that court's pecuniary jurisdiction. 3. The impugned grant was procured following the deliberate concealment of material facts. 4. The proceedings constituted an abuse of the process of the Court. 5. Intervention by this Court under Article 165(6) and (7) of the Constitution is therefore both justified and necessary to preserve the integrity of the judicial process and the proper administration of the estate. 6. This Court cannot permit proceedings undertaken without jurisdiction to remain on the record merely because they have culminated in the issuance of a grant. Jurisdiction is not conferred by acquiescence, omission or the conduct of the parties. Where it is absent, the proceedings founded upon it are void and liable to be set aside. 7. Equally, the Court cannot overlook the manner in which the jurisdiction of the subordinate court was invoked. The administration of justice depends upon litigants approaching the Court with complete candour. A party who deliberately withholds material information from one court while simultaneously invoking the jurisdiction of another court in relation to the same estate abuses the judicial process and forfeits any equitable claim to the Court's discretion. 8. The respondent's conduct in obtaining the impugned grant without disclosure of the subsisting High Court proceedings, the judgment of this Court, the pending appeal and the true value of the estate was a serious abuse of the court process. The subsequent attempt to rely upon that grant in proceedings before this Court only compounded that abuse. 9. I likewise reiterate my disapproval of the respondent's conduct during the hearing of this application. Parties appearing before the Court are expected to conduct themselves with courtesy, restraint and respect for the judicial process. The respondent's conduct fell below those standards and unnecessarily impeded the orderly administration of justice. 10. Courts exist to determine disputes fairly and according to law. That objective cannot be achieved where parties deliberately conceal material facts, seek inconsistent orders from different courts or invite subordinate courts to exercise jurisdiction which Parliament has withheld from them. The supervisory jurisdiction conferred upon this Court exists precisely to prevent such abuse and to preserve the integrity of judicial proceedings. 11. Having carefully considered the pleadings, affidavits, annexures, written submissions, the preliminary objection, the further submissions and the applicable law, I am satisfied that this is an appropriate case for the exercise of this Court's supervisory jurisdiction under Article 165(6) and (7) of the Constitution, section 47 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules. **Disposition and Orders** 1. Accordingly, I make the following orders: a. **The Notice of Motion dated 26th January 2026 is hereby allowed in its entirety.** b. **Pursuant to Article 165(6) and (7) of the Constitution, section 47 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules, this Court hereby calls for and examines the proceedings in Mombasa Chief Magistrate's Court Miscellaneous Succession Cause No. E155 of 2025.** c. **Upon examination of the said proceedings, this Court finds that the subordinate court acted without the requisite pecuniary jurisdiction and that the proceedings were commenced and prosecuted in abuse of the process of the Court.** d. **An order is hereby issued quashing in its entirety the proceedings in Mombasa Chief Magistrate's Court Miscellaneous Succession Cause No. E155 of 2025.** e. **The Limited Grant of Letters of Administration Ad Litem issued on 19th November 2025 in the said proceedings is hereby quashed and set aside.** f. **The Notice of Withdrawal dated 22nd January 2026 filed pursuant to the impugned Limited Grant is hereby struck out and expunged from the record. The same is declared to be of no legal effect.** g. **For the avoidance of doubt, any authority purportedly exercised pursuant to the impugned grant ceased upon the issuance of this ruling.** h. **The Deputy Registrar shall transmit a certified copy of this ruling to the Chief Magistrate's Court at Mombasa for compliance and for the necessary entries to be made in the record of Miscellaneous Succession Cause No. E155 of 2025.** i. **The respondent shall bear the costs of this application.** **Dated and delivered virtually vai Microsoft Teams this 30th day of July, 2026** **ALEEM VISRAM, FCIArb** **JUDGE** **In the presence of;** **Court Assistant: Bancy**