[2022] KEHC 12689 (KLR)

In re estate of Ada, Syngidura Marjan (Deceased) (Miscellaneous Case E015 of 2021) [2022] KEHC 12689 (KLR) (Family) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12689 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Case E015 of 2021

MA Odero, J

May 13, 2022

IN THE MATTER OF THE ESTATE OF ADAM SYNGIDURA MARJAN (DECEASED)

Between

Ibrahim Adam Syngidura

Applicant

and

Halima Mwima Noor

Respondent

Ruling

1. Before this court for determination is the notice of preliminary objection dated March 8, 2021 which was filed by the petitioner/respondent Halima Mwima Noor seeking dismissal of the application dated December 14, 2020, filed by Ibrahim Adam Syngidura the objector/applicant.

2. The court directed that the preliminary objection be canvassed by way of written submissions. The respondent filed the written submissions dated November 26, 2021 whilst the applicant filed the written submissions dated March 17, 2022.

Background 3. This is a matter which emanated from the Kadhi Court in Nairobi. The matter involved the estate of one Adam Syngidura Marjan (hereinafter ‘the deceased’) who died intestate on August 2, 2020. Following the demise of the deceased, his widow Halima Mwima Noor (the respondent herein) filed a petition for letters of administration in the Kadhi Court vide succession cause No E044 of 2020. The objector Ibrahim Adam Syngidura, a brother to the deceased filed an objection in the Kadhi Court seeking to be included as an administrator of the estate of the deceased.

4. Vide a ruling delivered on November 4, 2020 the Hon Kadhi dismissed the objection and found that the widow ranked in priority and was entitled to be issued with the letters of administration. Subsequently the grant was issued to the respondent on December 4, 2020.

5. The applicant then filed in the High Court the summons dated December 14, 2020 seeking to have the grant issued by the Kadhi Court to the respondent revoked. The respondent opposed the summons though her replying affidavit dated March 5, 2021.

6. The respondent also filed the notice of preliminary objection dated March 8, 2021 seeking dismissal of the summons for revocation of grant on grounds that the High Court has no jurisdiction to entertain said summons. The preliminary objection is premised on the following grounds: -“1. That the honourable court does not have original jurisdiction to hear and determine the application for revocation of grant dated December 14, 2020 and can only do that while sitting as an appellate court pursuant to provisions of the Magistrate Court Act No 26 of 2015 which parallel should be drawn with provisions of the Kadhis Court.2. That the application offends the principle of sub judice by virtue of existence of High Court (family) P & A E1432 of 2020 with respect to the same estate and challenging the letters of administration granted to the petitioner.3. The application/suit is frivolous, vexatious and an abuse of the court process and should be struck out in limine with costs.

Analysis and Determination 7. I have carefully considered this notice of preliminary objection, the ruling delivered by the Hon Kadhi, the written submissions on record as well as the relevant law. The definition of what constitutes a Preliminary objection was set out in the oft cited case of Mukisa Biscuit Manufacturing co ltd v West End Distributors ltd 1969 EA where the court held that: -“….a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”

8. The Court of Appeal in Nitin Properties Ltd v Singh Kalsi & another [1995] eKLR also captured the legal principle when it stated as follow:-“A preliminary objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

9. The respondent submits that the High Court does not have original jurisdiction to entertain a summons for revocation of grant where the original grant was issued by a subordinate court. That in those circumstances the High Court can only entertain the matter sitting in its appellate capacity.

10. The respondent further submits that the application filed in the High Court by the objector is ‘suit judice’ due to the existence of High Court P & ANo E 1432 of 2020 which involves the same estate.

11. On the issue of jurisdiction it is trite law that without requisite jurisdiction a court must immediately down its pen. In the case of Ownersof the Motor Vessel“Lillian S”vCaltex Oil(Kenya)ltd [1989] KLR, the Court of Appeal states as follows:-“I think that is reasonable plaint that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”(own emphasis)

12. Prior to the year 2015 under section 48 of the Magistrates’ Court Act, cap 10 Laws of Kenya, Magistrates Courts had no jurisdiction to hear and determine applications for revocation of grants in succession cases.

13. However the said provision was amended in 2015. Sections 23 and 24 of the Magistrates Court ActNo 26 of 2015 now provide as follows: -“23. The Law of Succession Act is amended, by repealing section 48(1) and substituting therefor the following new subsection –“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(1) of the Magistrates Courts Act, 2015. ” (own emphasis)24. Section 49 of the Law of Succession Act is amended –a). by deleting the words “Resident Magistrate” and substituting therefor the words “Magistrate’s Court”; andb). by deleting the words “one hundred thousand shillings” and substituting therefor the words “the pecuniary limits set out in section 7(1) of the Magistrates Courts Act, 2015. ”

14. This amendment therefore empowered subordinate courts to deal with all matters (including issuance of grants) in succession matters as limited by certain set out pecuniary limits. The subordinate courts were also empowered to entertain applications for revocation of grant. Thus where a grant is made by a Magistrate Court, a party seeking revocation of said grant need only file a summons within the same succession cause in the magistrate court.

15. The commencement date for the amendment to the Magistrate Court Act was January 2, 2016. This particular cause was lodged in the Kadhi Court in the year 2020. Accordingly this summon for revocation of grant ought to have been filed in the Kadhi Court.

16. I am fortified in this finding by the decision of my learned brother Hon William Musyoka in Re Estate of Charles Boi(deceased) [2020] eKLR in which he stated thus:-“The taking away of jurisdiction from the High Court, with respect to revocation of grants, made by the magistrate’s court, would mean that the High Court no longer has original jurisdiction to address that issue, and that its jurisdiction, over the issue, would be as an appellate court, from a ruling of the magistrate’s court, on a summons for revocation of the grant issued by that court. I have no jurisdiction, therefore, sitting as a High Court, to entertain a summons for revocation of grant, where the applicant has not filed such application at the magistrate’s court in the first instance, since the Law of Succession Act, as currently framed, does not vest me with such jurisdiction. Secondly, the issue of revocation of the grant made by the magistrate’s court has not been placed before me in invocation of my appellate jurisdiction”. (own emphasis)

17. The Kadhi Court is a subordinate court, therefore the amendments in question also apply to the Kadhi Court who have jurisdiction to hear and determine succession matters in respect of muslim faithful.

18. Article 170 (5) of the Constitution of Kenya 2010 provides for the areas of jurisdiction of the Kadhi Court as follows:-“The jurisdiction of a Kadhis’ Court shall be limited to the determination of questions of muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the muslim religion and submit to the jurisdiction of the Kadhi’s Courts.” (own emphasis)

19. Section 48 (2) of the Law of Succession Act provides that: -“For the avoidance of doubt it is hereby declared that the Kadhi’s 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”.

20. It is clear therefore from the provision of section 48(2) that the Kadhi Court has jurisdiction in all matters arising under the Act in relation to estates of persons professing the muslim faith, and who submit to the jurisdiction of said court.

21. Though this matter was filed in the Kadhi Court the objector categorically states that he is not willing to submit to the jurisdiction of the Kadhi Court and that is why he filed the summons for revocation of grant in the High Court.

22. The objector submitted that he did not participate in the proceedings in the Kadhi Court. There the objector is being somewhat economical with the truth. The record indicates that he filed the objection in the Kadhi Court and even filed submissions.

23. Be that as it may article 170 (5) provides that all parties must submit to the jurisdiction of the Kadhi. The objector herein has not submitted to the jurisdiction of the Kadhi to determine this dispute in accordance with sharia (islamic) law.

24. On this basis alone, I decline to allow the notice of preliminary objection dated March 8, 2021. The same is hereby dismissed in its entirety. The matter will proceed before the High Court.

Dated in Nairobi this 13th day of May 2022. …………………………………MAUREEN A. ODEROJUDGE