[2016] KEHC 7039 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 16 OF 2009

FELISTA NINGA NDIMI …………………….……...….………..APPELLANT

VERSUS

JAMES NDIMI THUKU ……….….…………...…………..1ST RESPONDENT

MARY MUKENYI KAMAU ………….….……..…………2ND RESPONDENT

JUDGMENT

The deceased died intestate on 10th August 1999. He was survived by 3 wives and 19 children. The family selected representatives from each house to take part in the succession proceedings. However, issues arose when it came to the mode of distribution as the beneficiaries could not agree and the Githunguri Court presented with the said succession cause no.48 of 2003 proceeded to distribute the assets among the beneficiaries. Aggrieved by the said decisions the parties filed the instant appeal on the following grounds.

That the learned Magistrate erred in both law and fact in that he did not consider the evidence given by the appellant regarding ownership and distribution of L.R.Githunguri/Gathangari/131, Tiiba General stores in Limuru, Mahiga Farmans Limuru plot no.234 and hence disinherited the appellant and or unfairly distributed the said property despite the weight and nature of the evidence on record.

That the learned Magistrate erred in both law and fact in giving an erroneous and self-contradictory analysis of the deceased’s gifts inter vivos at the expense of the appellant despite the nature, extent and weight of the evidence given.

That the Learned Magistrate erred in both law and fact in holding that plot no. 234 Limuru did not form part of the deceased’s estate yet proceeded to issue confirmation orders on it and hence acted without jurisdiction.

That the Learned trial Magistrate erred both in law and in fact in failing to take into consideration the deceased’s gift inter vivos to his beneficiaries while distributing the remainder of the deceased’s estate despite the weight of the evidence given.

That the Leaned Trial Magistrate erred both in law and in fact in failing to find that the deceased’s property as listed was erroneous and thus exceeded the jurisdiction of the trial court and proceedings therefore ought to be a nullity.

That the learned trial Magistrate erred both in law and fact in unfairly distributing L.R. No. Githunguri/ Gathangari/31, Tiiba General stores Limuru and plot no. 234 to the detriment of the appellant despite the nature and weight of the evidence given.

The appellant seek that;

The Ruling and Order of the Senior Resident Magistrate’s Court at Githunguri dated 5/2/09 be set aside and the petition in Githunguri SRMCC P&A Cause No.48 of 2003 be withdrawn and the same be transferred to the Court for hearing and final determination.

In the alternative the part of the Ruling and order of Senior Resident Magistrate’s Court at Githunguri dated 5/2/09 relating to the distribution of L.R. No. Githunguri /Gathangari/313 , Tibibia General stores Limuru Plot No. 234 be set aside and the said property be adjudicated upon and distributed by this Honourable Court.

In their written submissions, it was submitted by the appellant that the court lacked pecuniary jurisdiction and it is trite law that jurisdiction is everything and without it, a court has no power to even hear or entertain the matter. He referred to Section 49 of the Law of succession Act, Cap 160 which provides that, “The resident magistrate 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 one hundred thousand shillings, have in respect of that estate the jurisdiction conferred by section 48. ” In this regard, it was submitted that the learned Magistrate was only to handle matters whose subject value was less than 100,000 Kenyan shillings. It was further submitted that the deceased’s property were of an estimated value of Kshs. 20 million which was above the learned magistrate’s pecuniary jurisdiction and as such he lacked jurisdiction to deal with the matter. On this he relied on the case of, In the matter of the estate of Gati Kegocha (deceased),where the court held that since the court lacked pecuniary jurisdiction the parties were at liberty to petition for a fresh grant from the High Court of Kenya at Migori.

On distribution of the said estate it was submitted that it is trite law that the same should be done in fairly among the deceased’s survivors. It was submitted that despite the appellant having filed a proposal on how the estate is to be divided the said court did not consider the legal weighty issues raised with regards to the gift inter vivos.

That it was erroneous of the court to have found that Mahiga Farm had been sold to Peter Njoroge Thuku and as such did not form part of the deceased’s estate. It was submitted that the said Peter did not adduce any sale agreement to support the said claim and the entry of the said transaction in the respective land registry was suspicious as the property was initially in the deceased’s names Thuku Ndimi as per the green card but the same later changed to read Peter Njoroge Thuku.

Further that it is not clear how Tiiba general Store shares were registered in the names of Daniel Kamau Thuku yet the property belonged to the deceased. That the court failed to put to task the said owner on how he acquired the said deceased’s asset. Further that should the parties prove that they were gifted the said assets then the 3rd and 4th houses should be compensated in some way. That Kenya wool and skin industries- plot 234 is registered in the names of James Thuku Njoki (2nd house) and Muruga Thuku (1st house) who had been instructed by the deceased to collect rent of the same on his behalf as he was old and weak. The court however erroneously interpreted that he was gifted which was not the case. It is her submissions that the said property should be distributed to the 3 houses.

She referred the court to the lower court’s judgment stating that the gift inter vivos was never considered despite the weight of evidence adduced before the said court. That Githunguri/ Githangari/313measuring 26. 5 acres was to be divided among the 3 houses. However, the entire farm was registered in favour of the James Ndimi Thuku whilst demarcation was still on. That when the deceased met his demise he gave the title deed to David Ndimi Thuku Felister’s husband to effect registration of the 5 acres in his favor with the remaining 16. 5 acres to be divided among the 3 houses but to-date the 2nd house has custody of the said original title of the said parcel of land and the 1st house went ahead and placed a caution and as a result the 2nd and 3rd house have not gotten their 5 acres. On this she relied on the case of Estate of Stephen Ngure Mbuthia, Nairobi HCSC 2611 of 1998,where it was held that “Section 42 LSA Where- (a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or (b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.”

The appellant prays that the distribution be done as per her affidavit sworn on 4th October 2007 and that the ruling of dated 5/2/2009 be set aside.

On jurisdiction the respondents on their part submitted that in areas that there is no High court the Chief Justice may appoint a resident magistrate to represent the High Court to make grant in cases of apparent urgency limited to collect deceased’s assets and payment of debts. Further that the figure of Kshs. 100,000/- was to be applied only in remote areas which was higher than the pecuniary jurisdiction of the resident magistrate therein. They relied on the case of Estate of Kuria Wairagu Nairobi HCCC Succession cause no. 905/2000,where it was held that magistrates appointed under section 47 represents the High court and therefore have the same jurisdiction as the High Court as long as there is no High Court in that station and therefore the jurisdiction is not limited to the estate whose value is not Kshs. 100,000. ” Further in the case of Kenya Bus Services Limited –vs- Kawira)(2003)2 EA 519,where the court held that a grant made by a resident magistrate in excess of the court’s pecuniary jurisdiction would never the less be valid. The resident magistrate has the same powers as the high court for purposes of section 11of the Public Trustees Act which defines the court to mean any court having jurisdiction in the matter in question under the Law of succession.”

Further the respondent submitted that the appellant is estopped from raising the issue of jurisdiction where the parties participated fully in the succession proceedings for over 5 years.

On the issue of gift intervivos it was submitted that the court made sound judgment based on the evidence on record both documentary and oral evidence. It was submitted that the court in regards to Mahiga Farm measuring 6 acres found that the same was in the names of Peter Njoroge Thuku who had to top up the deceased’s shares from 1040 to 2665 end paid up the title fees for the said property adding that by the time the deceased died he had no title to the said property.

In regards to Tiibia General Stores Daniel Thuku gave evidence on chronology of events leading him to be gifted the said property by the deceased during his lifetime adding that the deceased bequeathed the said property to Kamau Thuku long before his demise.

In regards toGithunguri/Gathangari/313, it was submitted that all the three houses have been in occupation of the said property prior to the death of the deceased and the three wives continued to live as such and as such the appellant’s claim that they ought to get a bigger portion of the said property is not supported by any evidence either documentary or oral adding that it would be unfair to deny the recipients of their various shares in their father’s only estate by the fact that they had been gifted as it is clear that the respondents worked hard for their gifts. That Stephen Ngure holding the said parcel of land on behalf of the 1st house. The respondent seeks to have the appeal dismissed a the appellant had not demonstrated how the trial court failed to take cognizance the evidence on record and the appellant is instead introducing new matters to wit ownership of the gift intervivos which they did not consider during trial court and have not produced any other documents that are contrary to what the trial court ought to have relied on e.g. the issue that the green card showing the land was registered in the names of the deceased initially before being transferred and no evidence was tendered to support the alleged suspicious transaction.

The appellant has questioned pecuniary jurisdiction of the Learned Trial Magistrate by arguing that the property forming the deceased’s estate in question were of an estimated value of Kshs. 20 million. In support of this claim the appellant has annexed copies of the said properties forming the deceased’s estate. I find that though the appellant did not carry put any valuation on the said parcel of land the said parcel of land Githunguri/Gathangari/313 which measures 26. 5 acres the said parcel is large and in any basis ought to be of a higher value than Kshs. 100,000/-. Section 47 of the Law of succession Act provides that, “the High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by resident magistrates appointed by the Chief Justice.”However, the power vested on the said appointed Resident magistrate is not absolute and has a limitation. Further, Section 48 of the law of succession Act provides that, “(1) Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a resident magistrate shall have jurisdiction to entertain any application other than an application under Section 76 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 one hundred thousand shillings:”[ emphasis mine]

I find that the said properties being of greater value than Kshs. 100,000/- was beyond the Learned Trial Magistrate’s jurisdiction and as such, the said succession cause was not properly before the said court. It is trite law that when a court lacks jurisdiction the court downs its tools and is not entitled to make one more step. The succession cause was heard within Githuguri Court, yet there exists a High Court within the said area . It is my view that I need not make findings on the other grounds of appeal in light of the court’s findings on jurisdiction. This court has observed that at the time of making this decision “The Magistrates’ Court Act No. 26 of 2015” whose commencement date is 2nd January 2016 enhances the Magistrates’ court jurisdiction to Kenya shillings 20 million where the court is presided by a chief magistrate, 15 million where the court is preside by a senior principal magistrate and 10 million where the court is preside by a principal magistrate . This court’s finding is that the said court lacked jurisdiction that the succession cause was not properly before the lower court and therefore allows the appeal with cost. The orders given on the 5/2/09 by the SRM’s Court at Githunguri are set aside. The court has observed that this is an old matter and orders the parties to files a fresh succession cause before the High Court, which has pecuniary jurisdiction to entertain the same within 30 days from the date of this judgment to avoid further delays in the conclusion on this succession matter. Orders accordingly.

Dated, signed and delivered this 28th day of January 2016.

R. E. OUGO

JUDGE

In the presence of:

……………………………………..……………..……….…. For the Appellant

…………………………………………….….…………… For the Respondents

…………….……………..……………………………….……………Court Clerk