[2024] KEHC 7327 (KLR)

In re Estate of Silas Mwangi Kamau (Deceased) (Probate & Administration 67 of 2023) [2024] KEHC 7327 (KLR) (8 April 2024) (Ruling)

Neutral citation: [2024] KEHC 7327 (KLR)

Republic of Kenya

In the High Court at Mombasa

Probate & Administration 67 of 2023

G Mutai, J

April 8, 2024

IN THE MATTER OF THE ESTATE OF SILAS MWANGI KAMAU (DECEASED)

Between

Hellen Wanjiru Kahiga

Petitioner

and

Jane Muthoni Mwangi

Objector

Ruling

1. Vide a Preliminary Objection dated 1st December the Objector herein disputed this Court’s jurisdiction to hear and determine this Petition in view of the provisions of section 18 of the Civil Procedure Act. She, therefore, sought to have this cause struck out with costs and for the suit to be referred back to the Chief Magistrate’s Court at Mombasa Family Division for hearing and determination.

2. The Petitioner opposed the Preliminary Objection. She filed a Replying Affidavit sworn on 14th February 2024. On 17th January 2024, this Court directed that the Preliminary Objection be canvassed through written submissions. The parties duly complied with the directions. I shall refer to their respective submissions below.

3. The Objector filed Written Submissions dated 24th January 2024. The basis of the Objector’s submissions is that the Court below, in which this matter was initially filed, lacked jurisdiction to hear it, going by the Petitioner’s application. It was submitted that a suit filed before a Court without jurisdiction is incapable of being transferred. In support of this argument, counsel for the Objector referred to the decision of the House of Lords in Macfoy vs United Africa Co. Ltd (1961) 3 ALL ER 1169, where it was held thus: -“if an act is void, then it is a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

4. I was also referred to the decisions of the Court of Appeal in Equity Bank Limited vs Bruce Mutie Mutuku t/a Diani Tour Travel [2016] eKLR and Muthee Kamau & another vs David Mwangi Gichire & another [2013]eKLR for the proposition that where a suit has been filed in a Court without jurisdiction it is a nullity and cannot be transferred.

5. The Objector thus submitted that I should strike out this suit with costs to the Objector.

6. The Petitioner, in opposition to the Preliminary Objection, filed Written Submissions dated 14th February 2024. The Petitioner submitted that through an application dated 10th August 2023, the Objector sought to have the Court review its decision to transfer this matter from the Court below to itself. It was urged that on 1st December 2023. This Honourable Court upheld its decision. Despite being granted leave to appeal, the Objector did not appeal.

7. The Petitioner’s counsels submitted that the Preliminary Objection was counterintuitive, for if this Court lacked jurisdiction to transfer the suit to itself, it also lacked the jurisdiction to transfer the same suit back to the original Court as such an order would also be a nullity.

8. The Petitioner further submitted that this Court is functus officio as it had already made its decision. I was referred to the Supreme Court decision in Raila Odinga & 2 others versus Independent Electoral and Boundaries Commission & 3 others [2013] eKLR and the Court of Appeal decision in John Gilbert Ouma vs Kenya Ferry Services Ltd [2021]eKLR. In the latter case it was said that:-“The functus officio doctrine is one of the mechanisms by means of which the law give expression to the principle of finality. According to this doctrine a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter… The [principle] is that once a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such decision cannot be reviewed or varied by the decision maker.”

9. The Petitioner urged that if I upheld the objection I would be violating the functus officio doctrine.

10. It was urged that the matter is res judicata as there is an earlier final decision on the issue before this Court. The earlier decision was in respect of a contestation between the same parties over the same subject matter. The Petitioner urged that the Objector should not be allowed to abuse the Court process and visit an injustice upon the Petitioner by relitigating decisions which had already been determined with finality by this Court.

11. The Petitioner also submitted that the objection is res subjudice. The basis is that an application is pending before the Family Court in Nairobi a Milimani, to wit HCFP Misc. No E056 of 2023 vide which the Objector sought to have the matter in the subordinate Court in Mombasa transferred to Nairobi.

12. The Petitioner, therefore, urged that I dismiss the Preliminary Objection dated 1st December 2023, with costs so that this matter can be heard and determined on merit.It is necessary that I first determine whether there is, in fact, a valid preliminary objection. To do this, I will consider the Court of Appeal for Eastern Africa decision in Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696. In the said decision Law, JA stated as follows: -“… a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court, a plea of limitation, or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.”In a concurring opinion Sir Charles Newbold, P. stated that:-“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issue, and this improper practice should stop”.

13. It is clear from the said celebrated decision that a preliminary objection cannot properly be raised, “if any fact has to be ascertained or if what is sought is an exercise of judicial discretion.”

14. In this matter, both parties have at different times filed applications seeking the transfer of the cause, formerly in the Court below, to this Court or the Family Division of the High Court at Nairobi. Since it is the Objector that has raised this preliminary objection on the grounds that a matter filed in a Court without jurisdiction cannot be transferred the only logical conclusion that can be drawn from her conduct is that the objector believes that the subordinate Court has the pecuniary jurisdiction to hear and determine the matter. It would then appear to me that there is contestation as to the pecuniary value of the estate of the deceased that calls for factual enquiry.

15. Without conducting an enquiry into the value of the estate, this Court cannot determine whether the subordinate Court lacks jurisdiction or not and, thus, whether this Court’s prior decision to transfer the matter to itself was merited. It, therefore, follows that the preliminary objection raised herein is without merit and is for dismissal.

16. Even if I was wrong on the above finding, this Court made a decision on merits on 1st December 2023 dismissing the application for review. The application for review was made on the basis of broadly the same grounds as those relied on in the preliminary objection.

17. I agree with the Petitioner that once I delivered my decision on 1st December 2023, I became functus officio.

18. The Supreme Court in the case of Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR while discussing the doctrine functus officio had this to say:-“We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such 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.”

19. The Court of Appeal in Telkom Kenya Ltd vs John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR stated: -“functus officio is an enduring principle of law that prevents the re-opening of a matter before a Court that rendered the final decision thereon.”

20. In my view, this Court made a final determination of jurisdiction on 1 December 2023. I, therefore, lack the jurisdiction to rehear the same.

21. Based on the foregoing finding, it is not necessary for me to determine if the matter is res judicata or res subjudice.

22. The upshot of the foregoing is that I have found no merit in the Preliminary Objection. The same is dismissed.

23. As this is a family matter, I shall make no orders regarding costs.

24. Orders accordingly.

DATED AND SIGNED THIS 8TH DAY OFAPRIL 2024 ATMOMBASA. RULING DELIVERED VIRTUALLY VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of: -Ms Kamau, holding brief for Ms Luchemo, for the Objector;Ms Kinuva, for the Petitioner; andArthur – Court Assistant.Page 4 of 4