[2012] KEHC 1965 (KLR)
The Principal Magistrate's Court at Makueni lacked jurisdiction to hear the succession cause because the value of the estate exceeded the statutory limit of Kshs. 100,000 as provided under Section 48(1) of the Law of Succession Act. The High Court, having unlimited jurisdiction in succession matters, is the proper...
Source-derived case information.
- Citation
- [2012] KEHC 1965 (KLR)
- Parties
- Applicant: John Mbondo Ndwiwa; Applicant: Kennedy Mawioo Ndwiwa; Applicant: Priscilla Kanini Ndwiwa
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 49 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Succession Cause From Subordinate Court to High Court
- Outcome
- Application allowed. Prayer for transfer of succession cause granted. Costs in the cause.
- Judges
- GMA Dulu
- Legal Topics
- Jurisdiction of Courts, Succession and Estate Administration, Transfer of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mbondo Ndwiwa
Applicant
Kennedy Mawioo Ndwiwa
Applicant
Priscilla Kanini Ndwiwa
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Succession Cause From Subordinate Court to High Court
Legal Issues
- 1 Whether the Principal Magistrate's Court at Makueni had jurisdiction to hear the succession cause given the value of the estate.
- 2 Whether the succession cause should be transferred to the High Court of Kenya at Machakos.
Ratio Decidendi
The Principal Magistrate's Court at Makueni lacked jurisdiction to hear the succession cause because the value of the estate exceeded the statutory limit of Kshs. 100,000 as provided under Section 48(1) of the Law of Succession Act. The High Court, having unlimited jurisdiction in succession matters, is the proper forum for the case. Allowing the subordinate court to proceed would result in an illegality and would not serve the interests of justice or the estate's beneficiaries. The transfer of the cause to the High Court is justified to ensure compliance with statutory and constitutional requirements for the administration of justice.
Court Disposition
Application allowed. Prayer for transfer of succession cause granted. Costs in the cause.
Orders
- Succession Cause No. 36 of 2011 Estate of William Muange of the Principal Magistrate’s Court at Makueni is transferred to the High Court of Kenya at Machakos.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
Miscellaneous Application 49 of 2012
IN THE MATTER OF THE ESTATE OF WILLIAM NDWIWA MANGE alias WILIAM MUANGE – DECEASED
AND
IN THE MATTER
1. JOHN MBONDO NDWIWA
2. KENNEDY MAWIOO NDWIWA
3. PRISCILLA KANINI NDWIWA ………………… PETITIONERS/RESPONDENTS
R U L I N G
This is an application by way of Notice of Motion dated 8th March 2012 brought under Section 47 of the Law of Succession Act (Cap 160) and Section 18 of the Civil Procedure Act (Cap 21). It has four (4) prayers, two of which have been spent as follows:-
1. (spent).
2. THAT, Succession Cause No. 36 of 2011 Estate of William Muange of the Principal Magistrate’s Court at Makueni be transferred to the High Court of Kenya at Machakos.
3. (Spent).
4. THAT, the costs of this application be in the cause.
The application has grounds on the face of the Notice of Motion. The main ground is that the Principal Magistrate at Makueni lacked jurisdiction to hear the succession matter, as the value of the estate was over Kshs. 8 Million.
This is an application for transfer of a succession cause from the subordinate court to the High Court. It is not opposed. Under Section 48 (1) of the Law of Succession Act (Cap 160), the subordinate court can only adjudicate on succession causes in which the value of the estate does not exceed Kshs.100,000/=. It provides:-
48(1) Not withstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a resident magistrate shall have jurisdiction to entertain any application other than an application under section 76 and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed one hundred thousand shillings.
The High Court has unlimited jurisdiction in succession matters. The Makueni court falls under the administrative jurisdiction of the High Court in Machakos. It has been stated that the estate is worth more than Kshs.8 Million while the said court has jurisdiction in succession matters whose gross value of the estate is up to Kshs.100,000/=. It follows that if the succession case is left to proceed at the Makueni court, an illegality will be committed. That will not be in the best interests of justice or in the best interest of the estate of the deceased or the beneficiaries. I find justification in the request for the transfer of the succession cause. This court is required to administer substantive justice in accordance with the provisions of Article 159 (2) (d) of the Constitution. The transfer of the succession cause from the subordinate court to the High Court will be in line with the Constitutional principle of administering substantive justice. I will therefore allow the application.
Consequently, I allow the application and grant prayer 2. Costs in the cause.
Dated and delivered at Machakos this 3rdday of October 2012.
George Dulu
Judge
In presence of:-
Mrs Katunga for Petitioners/Respondents
N/A for 1st Petitioner
Nyalo – Court clerk