[2002] KEHC 1035 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

PROBATE AND ADMINISTRATION CAUSE NO.15 OF 2001

(O.S.)

IN THE MATTER OF THE ESTATE OF NJOROGE MBOTE

(DECEASED)

AND

IN THE MATTER OF THE TULAGA DISTRICT MAGISTRATE’S

COURT

SUCCESSION CAUSE NO. 15 OF 1968

AND

IN THE MATTER OF THE LAW OF SUCCESSION ACT

(CAP. 160 LAWS OF KENYA)

SAMUEL MUNDIA NJOROGE

JAMES MURUGA NJOROGE

FRANCIS NGUGI NJOROGE

PETER KARIUKI NJOROGE

DAVID MBURU NJOROGE

LILIAN WAMBUI NJOROGE …… PLAINTIFFS/APPLICANTS

VERSUS

JOHN NJUGUNA NJOROGE …. DEFENDANT/RESPONDENT

R U L I N G

Having carefully considered what was brought to my attention during the hearing of the Preliminary Objection raised by Mr. Gichuki Kingara, Counsel for the Respondent, I find that the Applicants, as beneficiaries may, under Section 20 (1) of the Limitation of Actions Act, have been entitled to bring this suit twenty three years after the judgment dated 12th April 1998, but I think that this is unfair to the Respondent because if the Applicants were not satisfied with that judgment, they should have appealed within the normal period allowed for appeals from that Third Class District Magistrate’s Court at Tulaga to the Resident Magistrate’s Court then having jurisdiction in the area.

Moreover order XXXVI Rule (1) of the Civil Procedure Rules under which the Originating Summons dated 5th September 2001 is brought purportedly because these proceedings are under the Law of Succession Act (Cap 160 Laws of Kenya) applies to proceedings under the Law of Succession Act only by virtue of Rule 41 (3) and (4) of the Probate and Administration Rules and Order XXXVI of the Civil Procedure Rules applies only during the hearing of a summons for confirmation of a grant and only

“Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the Court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and Set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may Thereupon, subject to the Proviso to section 71 (2) of the Act, proceed to confirm the grant”.

That is Rule 41 (3) of the Probate and Administration Rules.

Section 82 of the Act, meaning the Law of Succession Act, makes provisions with respect to the powers of Personal representatives. The proviso to section 71 (2) of the Act is a warning to the court, in cases of intestacy, not to confirm a grant of letters of Administration until the court is satisfied as to the respective identities and shares of all persons beneficially entitled and advises that when confirmed, the grant must specify all such persons and their respective shares.

Order XXXVI Rule 1 of the Civil Procedure Rules stipulates that an application under it be by Originating summons and since the Applicant before me purports to have come under Order XXXVI Rule 1, he has properly come by way of Originating Summons and not by a plaint.

Order XXXVI Rule 1 also identifies categories of people who may take out the said originating summons and specifies the matters in respect of which the originating summons may be taken out. It mentions a number of categories of people who include executors, administrators of a deceased person, trustees, legatees, heirs and legal representatives or any person claiming to be one of them.

But where the proceedings are said to be under the Law of Succession Act, Order XXXVI Rule 1 of the Civil Procedure Rules regarding categories of people entitled to take out originating summons must be read together with Rule 41 (4) of the Probate and Administration Rules which restricts the persons who can take out such originating summons, to personal representatives. The rule directs that in those proceedings, unless the court directs otherwise;

“the personal representative of the deceased shall be the applicant seeking determination of the question, and the person claiming so to be beneficially interested together with the residuary legatee or other person to be appointed by the court to represent the residuary estate shall be the respondents”.

Also while Order XXXVI Rule I specifies a number of questions which may be raised in the Originating summons, for the purpose of Succession proceedings, Rule 41 (3) of the Probate and Administration Rules, as already quoted above, restricts the questions to be raised to the issues mentioned in that sub-rule, namely, share or estate or condition or qualification attaching to such share or estate.

Those questions are determined under Order XXXVI Rule 1 of the Civil Procedure Rules. “without the administration of the estate”.

The position is as outlined above because in proceedings under the Law of Succession Act, provisions of the Civil Procedure Act and Civil Procedure Rule do not apply except those specifically mentioned in Rules 41 and 63 (1) and those applicable by virtue of Rules 49 and 73 of the Probate and Administration Rules.

From what I have said above therefore the Applicant in this Originating Summons dated 5th September 2001 is not properly before this court as the question he has brought before this court is not shown to have been a question which could not conveniently be determined by Tulaga District Magistrate’s Court during the hearing of an application for confirmation of a grant in that court and no court has directed that the Applicant, who is not an administrator or personal representative of the estate of the deceased, be entitled to institute this application instead of Administrator’s in this matter.

Furthermore proceedings in Tulaga District Magistrate’s Court having been conducted under the provisions of the Registered Land Act (Cap. 300 Laws of Kenya) particularly the now repealed sections 120 and 121 of that Act before the Law of Succession Act (Cap. 160 Laws of Kenya) came into operation and the said proceedings having been determined and concluded under the Registered Land Act, I do not see how the Applicant has properly come to this court under the provisions of the Law of Succession Act it being remembered that under sections 120 and 121 of the Registered Land Act an appeal from a decision of a District Magistrate grade III went to a Resident Magistrate’s court and it was only after a Resident Magistrate had decided the appeal that a further appeal could lie to the High Court.

Without going into the merits of the Originating Summons therefore, on the basis of what I have stated above, I uphold Mr. Gichuki Kingara’s preliminary Objection that the originating summons dated 5th September 2001 is defective and find it fatally so.

Accordingly, the said Originating summons be and is hereby dismissed with costs to the Respondent.

Dated this 29th day of October 2002.

J.M. KHAMONI

JUDGE

Present:

Mr. Burugu for the Applicant.

Mr. Mutiso for Mr. Kingara for the Respondent.

Further Order:

Upon oral application by Mr. Burugu, leave to appeal

granted.

Dated this 29th Day of October 2002.

J.M. KHAMONI

JUDGE