[2019] KEHC 6101 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HC.MISC. APPLICATION SUCC CAUSE NO. 451 OF 2017

IN THE MATTER OF THE ESTATE OF ASHBY MASILA MUIA (DECEASED)

JOSEPHAT MWANIA MUIA.................................PETITIONER/RESPONDENT

VERSUS

LOICE ATIENO ODUK...................................................OBJECTOR/APPLICANT

KENYA POWER PENSIONS FUND.............INTENDED INTERESTED PARTY

RULING

1. The application for determination is dated 25/02/2019 and was filed by the intended interested party under certificate of urgency. It is brought under Order 1 Rule 10(2) of the Civil Procedure Rules, Section 1A, 1B and 3A of the Civil Procedure Act Article 50 of the Constitution of Kenya 2010 and all other enabling provisions of the law. It seeks.

a) THAT the Kenya Power Pensions Fund be enjoined in this succession cause as an interested party.

b) THATcosts of this application be in the cause.

2. The application is supported by the grounds on the face of it and the supporting affidavit of the interested party’s Pension Administration Manager, Steve Mathuka, sworn on the same day. He avers that there is a contest as to who the rightful heir of the deceased is and that the intended interested party has a duty to monitor the outcome of the proceedings so as to preserve the part of deceased’s estate in its custody prior to determination of the rightful heir.

3. The application is opposed through a replying affidavit sworn on 04/03/2019 by the Petitioner’s advocate, Wesley M.R. Gichaba. He deposes that the intended interested party is an imposter, busybody and does not fit the shoes on an interested party. That it should first honour the court order dated 09/06/2017 before seeking any favorable order from the court.

4. There is also a preliminary objection dated 04/03/2019 filed by the Petitioner. He contends inter alia that this court lacks jurisdiction to hear and determine the application

5. The parties agreed to dispose the P.O and application by way of written submissions which they filed and highlighted on 24/04/2019.

6. Before taking one more step, it is imperative to highlight the chronology of various actions in this matter.

Chronology

7. The Petitioner successfully applied for grant of probate in Makueni Senior Resident Magistrate’s Court P&A Cause No. 42 of 2016. The grant was issued on 11/10/2016 and confirmed on 05/06/2017.

8. Following the confirmation of grant, the lower court issued further orders on 09/06/2017 directing the intended interested party to pay all benefits and allowances of the deceased to the petitioner to hold in trust and on behalf of BMM till he attains the age of 18 years.

9. On 26/07/2017, the Objector moved this court by way of a miscellaneous application seeking annulment of the grant issued and confirmed by the lower court.

10. On 18/09/2017, the Objector filed a Notice of Motion in the miscellaneous application seeking transfer of the matter from this court to the Kisumu High Court. The application was allowed by Justice C. Kariuki on 12/04/2018.

11. Aggrieved by the decision of Justice C. Kariuki, the Petitioner applied and obtained an interim stay of transfer and also appealed to the Court of Appeal vide Nairobi Civil Appeal No. 181 of 2018. The appeal is still pending.

Analysis and Determination

12. The petitioner contends that this Court has no jurisdiction to entertain the application filed by the intended interested party however, there is another jurisdictional issue which seems to have escaped the attention of this Court and it is trite that whenever this issue arises, the Court should dispense with it as a matter of priority in line with the decision of the Court of Appeal in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where it was held that:

“ It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined.”

13. It is clear that the grant was issued and confirmed by the Magistrate’s Court. Initially, section 48(1) of the Law of Succession Act, Cap 160, was instructive on the jurisdiction of Magistrate’s Courts in succession matters. It provided as follows;

‘Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 of this Act, a Resident Magistrate shall have jurisdiction to entertain any application other than an application under section 76 of this Act and to determine any dispute under this Act and pronounce such decrees and make such orders therein as my be expedient in respect of any estate the gross value of which does not exceed one hundred thousand shillings:

Provided that for the purpose of this section in any place where both the High Court and a Resident Magistrate’s Court are available, the High Court shall have exclusive jurisdiction to make all grants of representation and determine all disputes under this Act.’ (emphasis added).

14. In 2015, Section 48(1) of the Act was amended by the enactment of the Magistrates’ Court Act, Act No. 26 of 2015. Section 23 of the new Act repealed the saidSection 48(1) of the Act and substituted it with the following new subsection: -

‘23. The Law of Succession Act is amended, by repealing section 48(1) and substituting therefor the following new subsection –

1. 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 prescribedunder section 7 (1) of the Magistrates’ Courts Act, 2015. ’ (emphasis added).

15. The plain reading of this amendment is that Magistrate’s Courts have jurisdiction to deal with applications for revocation or annulment of grants which they have issued as long as the value of the estate is within their pecuniary jurisdiction. Section 7 of the Magistrate’s Court Act 2015 caps the pecuniary jurisdiction of Magistrate’s Courts at Ksh.20,000,000/=.

16. I have looked at the affidavit in support of the petition for probate and the declared value of the assets forming the deceased’s estate is Kshs 2,720,000/=. There is no indication that the value will exceed Kshs.20 million if the undeclared amounts in the various bank accounts are added.

17. I have also noted that the miscellaneous application was hinged onRule 44 of the Probate and Administration Rules, 1980 which requires applications seeking revocation or annulment of grants to be exclusively filed in the High Court. However, this is subsidiary legislation and cannot override the express provisions of the Act. As such, the position remains that Magistrates have jurisdiction to deal with such applications subject to their pecuniary jurisdiction. It is therefore my considered view that the miscellaneous application should never have been entertained by this court in the first place for want of jurisdiction.

18. Where a court acts without jurisdiction, all subsequent events are a nullity. I note that several applications were filed pursuant to the miscellaneous application including the instant application and some have resulted into decisions which escalated to the Court of Appeal. Ideally, the miscellaneous application and all subsequent applications should be struck out but in light of the Court of Appeal matter, my view is that everything else should be held in abeyance to await the outcome of the appeal. Those shall be the orders of this court.

DELIVERED, SIGNED AND DATED THIS 4TH DAY OF JULY, 2019 IN OPEN COURT AT MAKUENI.

.........................

H. I ONG’UDI

JUDGE