[2022] KEHC 14840 (KLR)

In re Estate of Serina Marigi alias Selina Marigi (Deceased) (Succession Cause 110 of 2021) [2022] KEHC 14840 (KLR) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14840 (KLR)

Republic of Kenya

In the High Court at Vihiga

Succession Cause 110 of 2021

WM Musyoka, J

November 4, 2022

IN THE MATTER OF THE ESTATE OF SERINA MARIGI alias SELINA MARIGI (DECEASED)

Ruling

1. The application for determination herein is undated, but was filed herein on April 30, 2019. It is tituled application for protection of right to property, and it is to be filed in the Constitutional Court of Kenya, in the matter of the estate of the deceased herein. It is brought at the instance of Jackson Onacha Marigi and Barnabas Mkangura Marigi.

2. The matter was initially before F. Amin J, who gave directions on its disposal, by way of written submissions. It came to me after F. Amin J left the station. In the course of considering it, several issues have come up, which ultimately influence my final decision.

3. First of all, the application was intended to be filed at a court titled the Constitutional Court of Kenya at Kakamega. Under the Constitution of Kenya, and the relevant legislation, there is no such court in Kenya, and that being the case, there is no such court at Kakamega, and I do not understand the circumstances under which the registry accepted the papers, when the application sought to be filed was not to be filed at the High Court of Kenya, which is what the Constitution recognizes, but the Constitutional Court of Kenya, which does not exist. It is not in vain that it is said that jurisdiction is everything.

4. Secondly, the application, although the title appears to suggest that it is about constitutional issues around protection of the right to property, is basically an ordinary application for revocation of a grant of representation, in this case in intestacy. If the applicants had constitutional issues that they desired to be addressed by the High Court, what they should have filed was a constitutional petition on protection of the right to property. A constitutional petition would lead to making of declarations with respect to the rights of the petitioners. Where the orders sought, as in this case, are available from other courts, including the magistrate’s court, then the right place to litigate should be before the magistrate’s court, where there is jurisdiction for grant of the orders sought.

5. As indicated above, the only prayer in the instant application is for revocation of grant, although the application is purportedly brought under Articles 22(2)(b) and 40(2)(a)(b) of the Constitution. Those provisions do not provide for revocation of grants. Grants are revoked under section 76 of the Law of Succession Act, Cap 160, Laws of Kenya, and the grounds upon which a grant may be revoked are set out in that provision. Curiously, the instant application is founded on those same grounds, which are set out in its body. There would be no need for the High Court to entertain a constitutional petition to revoke a grant of representation intestate when the relevant law has set out a procedure for that.

6. Secondly, there would be no need for the High Court to be involved in the matter. The grant sought to be revoked was made in Hamisi PMCSC No. 57 of 2017. The court at Hamisi has jurisdiction to revoke grants that it has power to make. The Magistrates Courts Act, No. 26 of 2015, which commenced on January 2, 2016, amended the Law of Succession Act, specifically section 48, to give magistrates courts jurisdiction to revoke grants that are within their power to make. That meant that effective from that date there was no need for summons to revoke a grant, made by a magistrate, to be filed at the High Court, for the same ought to be filed in the same cause in which the grant was made. See Turfena Anyango Owuor & another v. Mary Akinyi Dengo [2018] eKLR (Mrima, J), In re Estate of Meshack Nyangi alias Nyangi Kabuga (Deceased) [2019] eKLR (Limo, J) and Mwati Kakiti Ngalaka & another v. Nzembei Kakiti & another [2020] eKLR (Mutende, J). That meant that, with respect to grants made by a magistrate’s court, the High Court only exercises an appellate jurisdiction.

7. The succession cause in Hamisi PMCSC No. 57 of 2017 was initiated in 2017, after Act No. 26 of 2015 had commenced on January 2, 2016. The summons for revocation of grant was filed in 2019, after that commencement, and to that extent the filing of the application at the High Court was in abuse of court process. The court with jurisdiction to determine whether the grant made and confirmed in Hamisi PMCSC No. 57 of 2017 ought to be revoked is the court seized of Hamisi PMCSC No. 57 of 2017, which is the Hamisi magistrate’s court.

8. In view of what I have stated above, I do hereby direct the Deputy Registrar to transfer this cause, being Vihiga HCSC No. 110 of 2021 to the Hamisi law courts, for determination of the application for revocation of grant that was filed herein on April 30, 2019. The Deputy Registrar shall return the file in Hamisi PMCSC No. 57 of 2017 to the Hamisi law courts, for consolidation with the file in Vihiga HCSC No. 110 of 2021. After the consolidation, Hamisi PMCSC No. 57 of 2017 shall be the lead file, and the application for revocation of grant shall be heard within the consolidated file. The magistrate seized of the matter shall have liberty to take directions afresh on the disposal of the said application.

9. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4THDAY OF NOVEMBER,2022. WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Barnabas Mkangura Marigi, applicant.Nathan Kamidi Ozigi, respondent.