[2017] KEHC 9258 (KLR)
The court found that since the deceased was domiciled in Rongo District, Homa Bay County, and the only property forming the estate is located there, the appropriate forum for the resolution of the dispute is the High Court at Homa Bay. The filing of the Cause in Nairobi was improper from the outset. The court...
Source-derived case information.
- Citation
- [2017] KEHC 9258 (KLR)
- Parties
- Applicant: Jack Odera Okach; Respondent: Florence Okach; Respondent: Grace Atieno Okach
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1297 of 2010
- Procedural Posture
- Succession Cause / Ruling on Application for Transfer of Cause
- Outcome
- Application for transfer allowed; Succession Cause transferred to the High Court at Homa Bay; administrator to pay costs.
- Judges
- AO Muchelule, DN Musyoka
- Legal Topics
- Succession, Jurisdiction of Court, Transfer of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jack Odera Okach
Applicant
Florence Okach
Respondent
Grace Atieno Okach
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Transfer of Cause
Legal Issues
- 1 Whether the Succession Cause should be transferred from the High Court at Nairobi to the High Court at Homa Bay for hearing and determination.
- 2 Whether the administrator was justified in filing the Cause in Nairobi instead of the court nearest to the deceased's domicile and the location of the estate property.
- 3 Who should bear the costs of the application for transfer.
Ratio Decidendi
The court found that since the deceased was domiciled in Rongo District, Homa Bay County, and the only property forming the estate is located there, the appropriate forum for the resolution of the dispute is the High Court at Homa Bay. The filing of the Cause in Nairobi was improper from the outset. The court exercised its discretion to transfer the Cause to the High Court at Homa Bay to ensure the matter is heard in the correct jurisdiction and to facilitate expeditious determination. The administrator was ordered to pay the costs of the application as a consequence of having filed the Cause in the wrong forum.
Court Disposition
Application for transfer allowed; Succession Cause transferred to the High Court at Homa Bay; administrator to pay costs.
Orders
- The Succession Cause is transferred to the High Court at Homa Bay for hearing and resolution.
- The administrator shall pay the costs of the application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 1297 OF 2010
(CONSOLIDATED WITH SUCCESSION CAUSE NO. 1569 OF 1996)
IN THE MATTER OF THE ESTATE OF BONIFANCE OKACH (DECEASED)
JACK ODERA OKACH……..ADMINISTRATOR/APPLICANT
VERSUS
FLORENCE OKACH……………………....1ST RESPONDENT
GRACE ATIENO OKACH………………....2ND RESPONDENT
RULING
1. The administrator Jack Odera Okach filed this application dated 11th May 2016 seeking the transfer of this Cause to the High Court at Homa Bay for hearing and determination. The Cause is in respect of the deceased Bonifance Okach who died intestate in 5th June 1968. He died in his home in Rongo District of the Homa Bay County.
2. The administrator is one of the beneficiaries of the estate of the deceased. The respondents Florence Okach and Grace Atieno Okach are some of the other beneficiaries.
3. The only property forming the estate is LR Kamagambo/ Kabuoro/416 which is located in Kabuoro Sub-location Rongo District.
4. The respondents have opposed the application for the transfer of this Cause from this Court. Their case is that the administrator is not keen to have this case heard and determined, and thus the reason why he seeks the transfer.
5. It is unfortunate that this matter has been unresolved since 1996. However, where the deceased was domiciled in Rongo District, where the Cause property is situated, the only appropriate forum for the resolution of the dispute must be the court nearest the District. That court is the High Court at Homa Bay. It was wrong from the first day for the administrator to file this Cause in Nairobi.
6. I make an order transferring this Cause to the High Court at Homa Bay for hearing and resolution, and order that the administrator pays costs for the application. This matter shall be mentioned before the High Court at Homa Bay on 16th October 2017 for directions.
SIGNED at NAIROBI this 14TH day of SEPTEMBER 2017.
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 18TH day of SEPTEMBER 2017.
W. MUSYOKA
JUDGE