[2017] KEHC 5951 (KLR)
The preliminary objection was dismissed because the applicant had already been granted leave to amend the defective summons, and the amended summons, properly citing the relevant legal provisions, was on record. Thus, the objection was overtaken by events and there was no longer a defect to adjudicate. Furthermore,...
Source-derived case information.
- Citation
- [2017] KEHC 5951 (KLR)
- Parties
- MISSING: Francis Karugi Kiarie (Deceased); Applicant: __MISSING__; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2044 of 2014
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; matter transferred to magistrate's court
- Judges
- DN Musyoka, MW Muigai
- Legal Topics
- Preliminary Objection, Revocation of Grant, Jurisdiction of Court, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Karugi Kiarie (Deceased)
MISSING
__MISSING__
Applicant
__MISSING__
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection to the summons for revocation of grant is sustainable after leave to amend was granted and the amended summons filed.
- 2 Whether the High Court retains jurisdiction to revoke a grant issued by the Resident Magistrate's Court after statutory amendments.
Ratio Decidendi
The preliminary objection was dismissed because the applicant had already been granted leave to amend the defective summons, and the amended summons, properly citing the relevant legal provisions, was on record. Thus, the objection was overtaken by events and there was no longer a defect to adjudicate. Furthermore, due to statutory amendments, the High Court no longer has jurisdiction to revoke grants issued by the Resident Magistrate's Court; such jurisdiction now lies with the magistrate's court itself. Accordingly, the matter was ordered transferred to the Kikuyu Resident Magistrate’s Court for consolidation and determination.
Court Disposition
preliminary objection dismissed; matter transferred to magistrate's court
Orders
- The Preliminary Objection dated 25th September 2014 is dismissed.
- The cause herein is transferred to the Kikuyu Resident Magistrate’s Court for consolidation with Kikuyu RMCSC No. 71 of 2012.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 2044 OF 2014
IN THE MATTER OF THE ESTATE OF FRANCIS KARUGI KIARIE (DECEASED)
RULING
1. I am called upon to determine a preliminary objection dated 25th September 2014. The respondent argues that the applicants summons for revocation of grant dated 28th July 2014 is defective to the extent that it is purportedly brought under the wrong provisions of the law.
2. The applicant was granted leave on 5th November 2014 to amend the summons, and there is on record an amended summons dated 16th May 2016.
3. The preliminary objection was argued on 13th July 2016.
4. I am of the view that the objection was overtaken by the event of grant of leave to amend the summons and the filing of an amended summons which cites the correct provisions and which is properly intituled. There is no objection to determine in the circumstance.
5. The grant sought to be revoked had been made by the lower court in Kikuyu RMCSC No. 71 of 2012. The Law of Succession Act, Cap 160, Laws of Kenya, has been amended to take away the jurisdiction previously given to the High Court to revoke grants made by the resident magistrate, and have conferred the resident magistrate with the jurisdiction to revoke grants that that court has power to make.
6. The order that I am minded to make in the circumstances is to dismiss the Preliminary Objection dated 25th September 2014, and to direct that the cause herein be transferred to the Kikuyu law courts so that the Summons for Revocation of grant dated 28th July 2014, as amended, shall be heard and determined within Kikuyu RMCSC No. 71 of 2012. The objection is therefore hereby dismissed, and the cause herein transferred to the Kikuyu Resident Magistrate’s Court for consolidation with Kikuyu RMCSC No. 71 of 2012 and for disposal of the application within that cause thereafter.
DATED and SIGNED at NAIROBI this 3RD DAY OF MAY, 2017.
W. MUSYOKA
JUDGE
DELIVERED and SIGNED this 5TH DAY OF MAY, 2017.
M. MUIGAI
JUDGE