[2023] KEHC 25020 (KLR)

In re Estate of Charles Omollo Onyango (Deceased) (Miscellaneous Succession Cause 1 of 2023) [2023] KEHC 25020 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25020 (KLR)

Republic of Kenya

In the High Court at Migori

Miscellaneous Succession Cause 1 of 2023

RPV Wendoh, J

November 9, 2023

Between

Hellen Auma Oloo

Applicant

and

Dr. Josiah Ouma Omollo

Respondent

Ruling

1. Hellen Auma Oloo (the applicant) filed the instant Notice of Motion dated 24/3/2023 seeking the following orders: -1. Spent.2. That the suit be dismissed for being an abuse of the court’s process and for want of jurisdiction as the suit offends the provisions of Sections 7 & 8 of the Civil Procedure Act being that the estate of the deceased Charles Omolo Onyango being L.R. No. Kamagambo/Kanyajuok/476 is already subject in Rongo SPMC Succession Cause No. 13 of 2018 where the grant sought to be revoked was issued and which court had primary jurisdiction at the 1st instance to hear and determine an application for revocation;3. That the suit be dismissed for being an abuse of the court’s process and for want of jurisdiction as the suit offends the provisions of Sections 7 & 8 of the Civil Procedure Act being that the estate of the deceased Charles Omolo Onyango being L.R. No. Kamagambo/Kanyajuok/476 is already subject in Homabay High Court Succession Cause No. 334 of 2015 where the respondent herein has pleaded that he was issued with a grant on 14th May 2016 and which succession cause is still pending before the court;4. That the costs of this application be provided for.

2. The grounds in support of the application are found on its face and the supporting affidavit of the applicant. The applicant deposed that the estate of the deceased is already subject of dispute filed by the respondent in Rongo SPMC Succession Cause No. 13 of 2018 where there is a pending application to revoke the grant issued; that there is another pending succession cause over the estate of the deceased filed in the Homabay High Court being Succession Cause No. 334 of 2015; that the respondent knowing that there is a pending case in Rongo and Homabay filed the instant proceedings; that the subject matters, facts, parties and the issues in the instant proceedings are directly and substantially over the same subject matter, facts, parties and the issues in Rongo SPMC Succession Cause No. 13 of 2018 and Homabay High Court Succession Cause No. 334 of 2015.

3. The applicant further deposed that this court does not have primary jurisdiction to hear and determine this matter in the first instance as the respondent is seeking to revoke the grant issued in Rongo SPMC Succession Cause No. 13 of 2018 while it is the court in Rongo which is clothed with the primary jurisdiction to hear and determine the summons for revocation; that in any event, the respondent ought to have filed the current application in the Homa Bay High Court where the applicant alleges to have been issued with a grant and which succession cause the respondent alleges is still pending before the Homa Bay High Court. The applicant urged this court to allow this application.

4. The application was opposed. Dr. Josiah Omollo (the respondent) filed a replying affidavit dated 10/5/2023. On the issue of jurisdiction, the respondent deposed that this court has jurisdiction to deal with the issue of revocation of grant; that the alleged succession pending before the Homa Bay High Court, was fully determined in the year 2019; that the present proceedings cannot be res judicata since there has not been any litigation to do with the revocation of grant in respect of the estate of the deceased.

5. The respondent further deposed that the application is not an abuse of the court process since the issues raised are weighty and can only be resolved if the matter proceeds to full hearing; that the application dated 24/3/2023 is frivolous and it should be dismissed with costs.

6. The application was canvassed by way of written submissions. The applicant complied. On the proceedings of 26/9/2023, Mr. Orondo Counsel for the respondent requested for 7 days to file his submissions but there were no submissions on record at the time of writing this ruling.

7On whether this court has original jurisdiction to hear and determine the summons for revocation of grant issued in Rongo SPMC Succession Cause No. 13 of 2018, it was submitted that the law on revocation of grants changed in the year 2015 to give jurisdiction to magistrate’s court to revoke grants that they have power to make. To support this position, the applicant relied on the case of Kakamega High Court Miscellaneous Succession Cause No. 10 of 2018 RE: Estate of Charles Boi (Deceased) (2020) eKLR where the court held that by virtue of the amendment of Section 48 (1) of the Law of Succession Act, a magistrate’s court has power to revoke a grant of representation that it has power to make. The applicant submitted that the Rongo Magistrate’s Court which heard and confirmed the grant, has the primary jurisdiction to hear and determine the summons for revocation of the said grant.

8. Before amendment of Section 48 (1) of the Law of Succession Act, the Magistrates’ courts were not permitted under the law to determine applications for revocation of grant under Section 76 of the Law of Succession Act. The said provision provided: -‘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 may 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).

9. The Magistrates’ Court Act, Act No. 26 of 2015 amended the provisions of Section 48 (1) of the Law of Succession Act. Section 23 of the Magistrates’ Court Act provides as follows:-

10. The Law of Succession Act is amended, by repealing section 48(1) and substituting therefore 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 prescribed under section 7 (1) of the Magistrates’ Courts Act, 2015. ’ (emphasis added).”

11. Consequently, the provisions of Section 48 of the Law of Succession Act on the jurisdiction of the Magistrate’s Court is:-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. ”

12. The law is settled on the jurisdiction of the Magistrate’s court in determining disputes concerning revocation of grants. The Magistrate’s court was accorded the jurisdiction to hear and determine applications under the Law of Succession Act provided they are within the required pecuniary limit. The suit property of the estate of the deceased person was estimated to be Kshs. 2,500,000/= which is within the jurisdiction of the Senior Principal Magistrates’ Court.

13. In addition, it has been shown that there was an earlier grant issued in the Homabay High Court to Josiah Ouma Omolo on 27/6/2019. If at all any of the parties wished to have the grant set aside, annulled and/or revoked, they ought to have moved the Homa Bay High Court in the first instance instead of filing separate proceedings. Coming to this court in my view is an abuse of the court process.

14. In that regard, I do not wish to belabor this issue. The findings of this court is that the Magistrate’s Court in Rongo has the jurisdiction to hear and determine the application for revocation of the grant. The application dated 24/3/2023 is hereby allowed. The effect is that this cause is dismissed with costs to the applicant.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 9TH DAY OF NOVEMBER, 2023. R. WENDOHJUDGERuling delivered in the presence of;Mr. Jura for the Applicant.Mr. Orondo for the Respondent.Emma & Phelix - Court Assistants.