[2023] KEHC 27178 (KLR)
The court found that the application for transfer was properly before it, as the applicant was seeking a determination on the appropriate forum for the substantive application for revocation of grant. The challenge to the applicant's locus standi was deemed premature, as it would be determined in the substantive...
Source-derived case information.
- Citation
- [2023] KEHC 27178 (KLR)
- Parties
- Applicant: Teresa Wambui Wathuu; Respondent: Margaret Waiyego Kamau; Respondent: The Public Trustee
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 965 of 2001
- Procedural Posture
- Succession Cause / Ruling on Application to Transfer Cause
- Outcome
- application dismissed
- Judges
- PM Nyaundi
- Legal Topics
- Succession Procedure, Transfer of Cause, Locus Standi, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Wambui Wathuu
Applicant
Margaret Waiyego Kamau
Respondent
The Public Trustee
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Transfer Cause
Legal Issues
- 1 Whether the summons for transfer of the cause to Muranga High Court is competent.
- 2 Whether the court is functus officio after issuing the Certificate of Confirmation of Grant.
- 3 Whether the applicant has locus standi to bring the application for transfer.
Ratio Decidendi
The court found that the application for transfer was properly before it, as the applicant was seeking a determination on the appropriate forum for the substantive application for revocation of grant. The challenge to the applicant's locus standi was deemed premature, as it would be determined in the substantive summons for revocation. The court held that the applicant had not established sufficient grounds for transfer, particularly in light of the ability to conduct virtual hearings, and that the reasons advanced did not justify moving the matter to Muranga. The application for transfer was therefore dismissed, and directions were issued for the service and hearing of the substantive...
Court Disposition
application dismissed
Orders
- The application for transfer to Muranga High Court is dismissed.
- The Summons for Revocation dated 17th September 2021 to be served on the 1st respondent within 7 days.
Full Case Text
Judgment text and source record
36 paragraphs
In re Estate of David Wanyina Mwaniki (Deceased) (Succession Cause 965 of 2001) [2023] KEHC 27178 (KLR) (Family) (1 December 2023) (Ruling)
Neutral citation: [2023] KEHC 27178 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 965 of 2001
PM Nyaundi, J
December 1, 2023
In the matter of the Estate of David Wanyina Mwaniki (Deceased)
Between
Teresa Wambui Wathuu
Applicant
and
Margaret Waiyego Kamau
1st Respondent
The Public Trustee
2nd Respondent
Ruling
1. The Application for determination is Summons dated 19th October 2023 presented under Rules 59 (1), (3) & (6) and 73 of the Probate and Administration Rules, 1980 in which the Applicant seeks that this cause be transferred to the High Court at Muranga for hearing and disposal.
2. The Application is opposed by the 2nd Respondent, who has sworn an affidavit in opposition on 16th June 2023.
3. Directions were given that the Application proceed by way of written submissions, both parties complied
Analysis And Determination 4. The Applicant seeks to transfer the Application to Muranga for quick and expeditious hearing. It is submitted that the parties hail from Muranga and the assets of the Estate are situate in Muranga. It is submitted that since there is a Court in Muranga it is just that the matter be transferred to Muranga for hearing.
5. In opposing the Application, the 2nd Respondent identifies the following issues for determinationa.Whether this Court is {{term{refersTo |title Once a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker; finality.
An enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.} functus Officio}}b.Whether the suit is merited for transferc.Whether the Applicant has locus to file the Applicationd.Who is entitled to costs of the suit 6. Having considered the pleadings herein, the rival submissions filed and the applicable law, I frame the following as the issues for determinationa.Whether the Summons is competent?b.Whether the matter should be transferred to the High Court at Muranga for hearing and disposalc.Who should pay costs in the Suit
7. On the 1st issue the 2nd Respondent contends that this Court having issued the Certificate of Confirmation of Grant is functus officio and the Applicant lacks the locus to present the Application as she is not a beneficiary of the Estate of the Deceased. It is for this dual reason that the 2nd Respondent urges that the Application be dismissed. 8. It is not disputed that the Applicant has filed an Application for revocation of Grant. Section 76 of the Law of Succession Act provides that a Grant of representation, may at any time be revoked or annulled if the Court decides, either on application by any interested party or of its own motion.
9. For this reason, I find that this Application is properly before Court as the Applicant seeks a determination on the Court that will hear the substantive Application on revocation.
10. The 2nd Respondent also challenges the locus of the Applicant to present the current Application. The Application before Court is for the transfer of the file to Machakos High Court for the hearing of the Summons for Revocation. It is in the Summons for Revocation that the Applicant will be required to establish her locus in relation to the Estate. The challenge is premature at this stage.
11. On the 2nd Issue, whether this court should transfer the matter to the High Court at Machakos, I have considered the reasons given by the Applicant, the age of the matter and recent developments when it comes to Court conduct of hearings. Specifically, that matters can now proceed virtually.
12. I concur with the 2nd respondent on the threshold that the Applicant has to meet for the grant of the Orders sought. I am persuaded by the cited decisions in the cases of David Kabungu vs Zikareng and a HCCS No. 36 of 1995 (Uganda) and Hangzhou Agrochemicals Industries Ltd vs Panda Flowers Ltd [2012] eKLR.
13. The submissions of delay are not borne out by the record. The Summons for revocation of grant is dated 17th September 2021 and was uploaded onto the portal on 8th July 2022.
14. Thereafter on 10th January 2023, the Applicant wrote to the Court seeking a date for directions. The matter was then mentioned by the Deputy Registrar on 19th January 2023 and matter set for mention for directions on 22nd March 2023.
15. At the mention on 22nd March 2023, the Applicant’s Counsel notified the Court, that he had instructions to transfer the matter to the High Court in Muranga on the basis that the property in dispute is set in Muranga.
16. On 27th April 2023, the matter was mentioned again before the Deputy Registrar and the 2nd Applicant given time to file response. It is not clear from the record whether the 1st Respondent was served.
17. Subsequent to that the matter was mentioned before the Deputy registrar on 2 occasions as the 2nd Respondent sought time to file their response. Eventually the matter was placed before me on the 18th July 2023, I gave directions on how the Application would be canvassed and after the Parties complied today’s date was given for ruling.
18. In the circumstances I am not satisfied that sufficient basis has been laid for the transfer of this matter to Muranga, I therefore dismiss the Application and make the following orders for finalization of the mattera.The Summons for Revocation dated 17th September 2021 to be served on the 1st respondent within 7 days. The 1st Respondent to file Response within 14 days of Service. The Applicant granted leave to file further Affidavit within 7 days of service of the 1st Respondent’s Responseb.The Application will be canvassed by way of written submissions. The Applicant to file written submissions within 21 days of service of the Response by Respondentc.The Respondents to file their submissions with 21 days of service.d.Mention on 27th March 2024 to confirm compliance and take a date for rulinge.Each party to bear their own costs
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER 2023. ………………………P. NYAUNDIJUDGE