[2023] KEHC 25714 (KLR)
The court held that it lacked jurisdiction to grant the orders sought because the probate court becomes functus officio regarding property already distributed under a confirmed grant. Disputes arising after confirmation must be resolved in the appropriate civil forum, not within the succession cause. Furthermore,...
Source-derived case information.
- Citation
- [2023] KEHC 25714 (KLR)
- Parties
- Applicant: Veronicah Nyawira Mbugua; Respondent: Sammy George Ngari Mbugua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 855 of 1995
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application
- Outcome
- Application struck out as incompetent with costs to the respondent.
- Judges
- PM Nyaundi
- Legal Topics
- Probate and Administration, Validity of Wills, Forensic Document Examination, Functus Officio, Jurisdiction of Probate Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veronicah Nyawira Mbugua
Applicant
Sammy George Ngari Mbugua
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the probate court can order the Directorate of Criminal Investigation (DCI) to conduct forensic examination of a will after confirmation of grant.
- 2 Whether the application is competent where the DCI is not a party to the proceedings.
- 3 Whether the probate court is functus officio regarding disputes arising after confirmation of grant.
Ratio Decidendi
The court held that it lacked jurisdiction to grant the orders sought because the probate court becomes functus officio regarding property already distributed under a confirmed grant. Disputes arising after confirmation must be resolved in the appropriate civil forum, not within the succession cause. Furthermore, the DCI was not a party to the proceedings, and the court cannot issue orders against non-parties. The court also emphasized that it cannot direct investigative agencies to perform their functions, as this would amount to assisting one party to build its case. The application was therefore struck out as incompetent, with costs awarded to the respondent.
Court Disposition
Application struck out as incompetent with costs to the respondent.
Orders
- The application dated June 30, 2023 is struck out.
- Costs of KES 20,000 awarded to the respondent, payable within 30 days.
Full Case Text
Judgment text and source record
23 paragraphs
In re Estate of George Mbugua Ngari (Deceased) (Succession Cause 855 of 1995) [2023] KEHC 25714 (KLR) (Family) (17 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25714 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 855 of 1995
PM Nyaundi, J
November 17, 2023
IN THE MATTER OF THE ESTATE OF GEORGE MBUGUA NGARI (DECEASED)
Ruling
1. The application for determination is dated June 30, 2023 and is presented Under rule 49 of the Probate and Administration Rules and seeks the following orders-a)Spentb)An order do issue directed to the Directorate of Criminal Investigation headquarters to subject the will of George Mbugua Ngari the deceased herein to forensic document examination prepare a report and file it in this Court.
2. The application is supported by the affidavit of Veronicah Nyawira Mbugua sworn on the same date.
3. The application is opposed by the respondent, Sammy George Ngari Mbugua who has sworn a replying affidavit on August 23, 2023.
4. The application is stated to be grounded on the fact that the Applicants have challenged the validity of the Will executed by the deceased. Prior to filing this application, the applicants filed the application dated February 17, 2023. It is alleged that when the applicants approached the DCI to investigate the will, the DCI asked that the Court issue an order requiring the DCI to avail the report, ostensibly because the issue is before this Court.
5. The grant of probate was issued herein on December 17, 1999, subsequently the certificate of confirmation of grant with Will was issued on July 28, 2000. The estate has since been transmitted to the beneficiaries as per the certificate of confirmation of grant.
6. I have seen the undated witness statement by Sammy George Ngari filed herein and note that the Applicants herein are Defendants in MCELC No. 021/2023 where the Respondent is seeking Eviction orders against the Applicants.
7. The applicants herein wish to set off on an expedition to challenge the will and have invited the Court to join them on this voyage by directing the DCI to subject the will to a forensic examination. Unfortunately, the Court must decline that invitation.
8. In arriving at my decision after having considered the pleadings, rival submissions and applicable law, I am guided by the decision in Re Estate of Alice Mumbua Mutua (Deceased) [2017] KLR (Musyoka J) said as follows on the same:“29. Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime, the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be functus officio so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.” (Emphasis added)
9. I note that the DCI is not a party in this application, it is not clear why Sammy George Nagri Mbugua is the respondent. This court cannot make orders affecting the DCI when they are not enjoined herein. On that ground I would find the application incompetent.
10. The applicants wish for the DCI to investigate what is essentially a criminal offence, this court is not vested with powers to direct the DCI to carry out their functions. In any event this would amount to the Court assisting one party to build its case.
11. I observe the proper arena for the applicants to challenge the title of the respondent would be in the ELC matter and not here, or at least definitely not in the manner they have approached the Court.
12. For the reasons above, I strike out the application dated June 30, 2023 with costs to the respondent assessed at Kshs 20,000 payable within 30 days
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. P. NYAUNDIJUDGEIn the presence of;Njuguna h/b for Ngata Kamau for the Applicant