[2022] KEHC 16131 (KLR)

In re Estate of Mbogo Kauma (Deceased) (Civil Appeal 82 of 2019) [2022] KEHC 16131 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16131 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 82 of 2019

LM Njuguna, J

December 7, 2022

(FORMERLY EMBU HC SUCC. NO. 217 OF 2017) IN THE MATTER OF THE ESTATE OF MBOGO KAUMA (DECEASED)

Between

Irene Lenas Kina Mulinga

1st Applicant

Catherine Mecky Warue Mbogo

2nd Applicant

and

George Mwaniki Kauma

1st Respondent

Lucy Njoki Kauma

2nd Respondent

Ruling

1. The matter for determination before the court is summons dated October 25, 2021 and wherein the co-administrators/ applicants sought for orders that:i.The Deputy Registrar be authorized to execute all the relevant documents to facilitate the full administration and implementation of the grant and certificate of confirmation issued by this court on September 30, 2021 and in particular in relation to subdivision, registration and transmissions of the resultant parcels in respect of lands Nos Kyeni/ Mufu/1597 and Kyeni/Kathanjuri/T.49 (1/2 share).ii.The OCS Runyenjes Police Station do provide security during the surveying, demarcation and subdivision of land parcel No Kyeni/Mufu/1597. iii.Costs be provided for.

2. The application is premised on the grounds on its face and further supported by the affidavit sworn by Catherine Mecky Warue Mbogo wherein it was deposed that the parties herein are co-administrators and that grant of letters of administration was issued to the parties on September 30, 2021. It was stated that the applicants having exhausted their avenues of appeal under section 50 of the LSA in respect of the estate herein, what now remains is full implementation of the grant and distribution of the estate of the deceased as per the certificate of confirmation of grant issued on September 30, 2021. That the co-administrators/ respondents have since declined to sign the necessary documents to ensure the devolvement of the estate of the deceased and as such, this court was urged to authorize the deputy registrar to execute all the relevant documents to facilitate the full administration and implementation of the grant and certificate of confirmation and in particular in relation to subdivision, registration and transmissions of the resultant parcels in respect of land parcel Nos Kyeni/Mufu/ 1597 and Kyeni/Kathanjuri/T.49 (1/2 share).

3. Via a replying affidavit sworn on September 5, 2022, the 1st appellant opposed the application herein by stating that the same is devoid of merit, lacking in substance and ought to be dismissed. That at the outset, the court herein sitting as an appellate court lacks jurisdiction to issue orders sought herein. Further, it was deponed that the foundation of the application is a purported consent dated April 4, 2013 to which the deponent was not privy to, and thus, the orders sought herein if granted, will highly prejudice the deponent. It was further deponed that there is a pending application dated July 15, 2022 filed at Runyenjes succession cause No 217 of 2017 wherein the deponent is seeking for orders to set aside the said consent. That under the circumstances, it is evident that there are pending issues in relation to the validity of the consent and the orders emanating from it. In the end, it was prayed that the application herein be dismissed for want of merit.

4. In addition to the replying affidavit, the respondents filed grounds of opposition dated the September 5, 2022. The grounds being that; the court has no jurisdiction to issue the orders sought herein; that the grant sought to be implemented emanated from Runyenjes succession cause No 217 of 2017 wherein the consent dated April 4, 2013 was purportedly adopted and wherein, the 1st appellant was not a party to the said consent and there is a pending application dated July 15, 2022 seeking to set aside the aforesaid consent.

5. The application was canvassed by way of written submissions. The applicants submitted that the parties to the suit are co-administrators in respect to the estate herein and they were issued with letters of administration on September 30, 2021 which was thereafter confirmed after this court determined an appeal lodged by one Lucy Njoki Kauma (the 2nd respondent). That the appellants have exhausted their avenues of appeal under section 50 of the LSA and what remains is full implementation of the grant and distribution of the estate of the deceased herein as per the certificate of confirmation of grant issued on September 30, 2021. It was submitted that the administrators are also beneficiaries of the estate and that the two co-administrators/ respondents have refused to sign the transmission documents which must be signed by all the administrators. That their refusal has denied the applicants and other beneficiaries their inheritance and the said action or conduct by the respondents is meant to frustrate the court orders including the judgment of this court delivered on July 21, 2021.

6. That the applicants are unable to execute their mandate of implementing the grant and distribute the deceased’s estate to the rightful beneficiaries without the other two co-administrators executing the requisite documents. It was urged that in the circumstances, it is only fair that the honourable court do authorize the Deputy Registrar to execute on behalf of the defiant co-administrators/respondents, all the relevant transmission documents to facilitate and give effect to the full implementation of the grant and in particular, the subdivision and registration of land parcel No Kyeni/Mufu/1597 and transmission of resultants parcels to the respective beneficiaries and also land parcel Kyeni/Kathanjuri/T.49 (1/2 share) to Gillian Wambura Kariuki as per the certificate of confirmation of the grant.

7. It was their contention that the respondents are reluctant to have the grant implemented because they are in actual possession and are cultivating land parcel No Kyeni/Mufu/ 1597. That the applicants are apprehensive that the respondents will be violent and create a breach of peace during the subdivision of the said land. The applicants therefore sought for orders that the OCS Runyenjes Police Station do provide security. Further, it was their contention that should the court grant the said orders, the respondents will not be prejudiced in any way as they are also beneficiaries of the estate. It was thus prayed that the application herein be allowed and the respondents be condemned to pay costs as a penalty for their conduct which has been a clear impediment to justice.

8. I have considered the application herein, the grounds of opposition, the replying affidavit and the submissions by the applicants, and it is my considered view that the main issue for determination is whether the orders sought can issue. However, before I can delve into the substance of the application, the respondents have raised a very fundamental issue of jurisdiction and has contended that this court being an appellate court does not have jurisdiction to handle this application. This being an issue of jurisdiction, it’s imperative that I determine it first as it will have the potential of determining the whole application.

9. The locus classicus case on the question of jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” where the court held;“Jurisdiction is everything. Without it; a court has no power to make more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

10. Similarly, in the case ofSamuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR where the Supreme Court held;A court’s jurisdiction flows from either constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.We agree with counsel for the 1st and 2nd respondents in their submissions that the issue as to whether a court of law has jurisdiction to entertain a matter before it; is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.

11. The High Court is established under article 165 of the Constitution and its jurisdiction is set out as follows;165(a) – unlimited original jurisdiction in criminal and civil matters.165(e) - any other jurisdiction, original or appellate, conferred on it by legislation.

12. When exercising its appellate jurisdiction, its powers are set out in section 78 of the Civil Procedure Act as follows;1. Subject to such conditions and limitations as may be prescribed, an appellate court shall have power -

a.To determine a case finally;b.To remand a case;c.To frame issues and refer them for trial;d.To take additional evidence or to require the evidence to be taken;e.To order a new trial. 2. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.

13. In the matter herein, the court entertained the same as an appeal while exercising its appellate jurisdiction and not as a court of first instance.

14. The same being a succession matter, I am guided by section 47 of the Law of Succession Act which stipulates as follows;“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient provided that the High Court may for the purposes of this section be represented by resident magistrates appointed by the Chief Justice”.

15. The matter the subject of the appeal was heard at the Senior Principal Magistrate’s Court at Runyenjes, as the court of first instance under the proviso in section 47 of the Law of Succession Act.

16. This court heard and finally determined the appeal under section 78(a) of the Civil Procedure Act.

17. In the circumstances aforesaid, upon delivery of the judgment, this court becamefuntus officio and therefore, any other remedy that any of the parties may wish to pursue can only be entertained by the trial court.

18. In the end, I find that this court has no jurisdiction and hence the application is struck out with no orders as to costs.

19. It is so ordered.

Delivered, dated andsigned atEmbu this7th day of December, 2022. L. NJUGUNAJUDGE………………………………....……..…..for the Applicants………………………………..……….….for the Respondents