[2018] KEHC 6740 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. 4 OF 2015

JOHNSON LENSON MBOGO GATUA......................1ST APPELLANT

PASQUQLINA MUHONI GATUA..............................2ND APPELLANT

V E R S U S

JOHN BOSCO NJIRU GATUA.........................................RESPONDENT

J U D G M E N T

1. The appellant was aggrieved by the judgment of Runyenjes Senior Resident Magistrate delivered on 13/02/2015 in Succession Cause No. 185 of 2013. In the cause, the protesters were claiming a share in the estate of the deceased Harun Gatuanyaki M'Tetu in their capacities as beneficiaries in the estate. The learned magistrate found that the protesters were not children of the deceased and ordered that the respondent was the sole beneficiary of the estate and entitled to inherit Kyeni/Mufu/1915.

2. The appellants rely on a number of grounds which summarize as follows:-

(1) That the court lacked jurisdiction to determine the case.

(2) That the magistrate erred in finding that the protesters were not children of the deceased.

(3) That the magistrate erred in failing to set out the issues for determination thus reaching a wrong finding.

(4) That the judgment was not in conformity with the law.

3. The rest of the grounds deal with the evidence and the manner in which the learned magistrate analyzed it in his judgment. These issues are supposed to be covered in the judgment during evaluation of the evidence.

4. The appellants submitted that the value of the estate Kyeni/Mufu/1915 which measures 15 acres was Kshs.4,000,000/= while the magistrate's pecuniary jurisdiction was restricted to Kshs.100,000/=.

5. The respondent also submitted on the other grounds of the appeal. However, this court will give priority to the first ground which challenges jurisdiction of the court. The outcome of this ground is what will determine whether the court will proceed to deal with the other grounds of appeal.

6. The respondent did not make any submissions on the issue of jurisdiction.

7. The issue for determination are twofold:-

(1) Whether the court was possessed of the jurisdiction to determine the cause.

(2) Whether the appellants proved their case on the balance of probabilities before the learned magistrate.

8. The duty of an appellate court was explained in the case of MWANGI VS WAMBUGU, [1984] KLR 453where it was held:-

A Court of Appeal will not normally interfere with a finding fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court is not bound to accept the trial Judge's finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.

9. The jurisdiction of magistrate's court in succession is provided for in the Magistrates Jurisdiction Act under the Law of Succession Act.

10. Section 7 of the Magistrates Court Act of 2015 provides:-

(1) A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matte does not exceed —

(a) twenty million shillings, where the court is presided over by a chief magistrate;

(b) fifteen million shillings, where the court is presided over by a senior principal magistrate;

(c) ten million shillings, where the court is presided over by a principal magistrate;

(d) seven million shillings, where the court is presided over by a senior resident magistrate; or

(e) five million shillings, where the court is presided over by a resident magistrate.

(2) The Chief Justice may from time to time, by notice in the Gazette, revise the pecuniary limits of jurisdiction set out in subsection (1), taking into account inflation and change in prevailing economic conditions.

(3) A magistrate's court shall have jurisdiction in proceedings of a civil nature concerning any of the following matters under African customary law —

(a) land held under customary tenure;

(b) marriage, divorce, maintenance or dowry;

(c) seduction or pregnancy of an unmarried woman or girl;

(d) enticement of, or adultery with a married person;

(e) matters affecting status, and in particular the status of widows and children including guardianship, custody, adoption and legitimacy; and

(f) intestate succession and administration of intestate estates, so far as they are not governed by any written law.

11. Section 48(1) of the law of Succession Act provides:-

Notwithstanding 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:

Provided that for the purpose of this section in any place where both the High Court and a resident magistrate’s court are available, the High Court shall have exclusive jurisdiction to make all grants of representation and determine all disputes under this Act.

12. This case was filed in 2013 and letters of administration issued by Hon. P. Nandi Ag. SRM. At the time, the Magistrates Jurisdiction Act, 2016 had not been enacted. The jurisdiction of the magistrate was restricted to Kshs.100,000/= as the value of the estate. The jurisdiction of a Senior Resident Magistrate increased to Kshs.7,000,000/= with the enactment of the Magistrates Jurisdiction Act.

13. The record of the lower court and the inventory of the deceased's property placed the value of the estate at Kshs.1,000,000/= which fact has not been disputed by the respondent in any way, let alone in form of an affidavit. This figure was way above the jurisdiction of the learned magistrate.

14. The importance of jurisdiction of the court was emphasized in the case of PETER GICHUKI KING'ARA V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 2 OTHERS Nyeri Civil Appeal Case No. 23 of 2013while quoting the case of Lillian 'S' [1989] KLR 1stated inter alia:-

Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

15. In the case of PETER NDABI REBO Alias PETER NDABI VS MOSES SAYTANGA [2016] eKLR the court in a case with similar facts held:-

Having considered the record in succession cause No. 8 of 2002, none of the learned magistrates had the jurisdiction to grant the letters of administration to the petitioner or any orders sought by him. The petitioner had no right to donate or collude to confer jurisdiction which the court lacked by virtue of Section 48.

In view of the foregoing, the grant of letters of administration and subsequent confirmation on 17/08/2002 in favour of the petitioner was void ab initio and is hereby declared a nullity.

16. Similarly, in the case of FRANCIS KAMAU KINYANJUI VS GEORGE MBUGUA KIMANI [2016] eKLRthe court held:-

Lastly, the suit property is stated to be worth Kshs.3,000,000/=. Had this fact been disclosed to the court which issued the grant of letters of administration intestate, the court would have found that it lacked the pecuniary jurisdiction to make the said grant letters of Administration. The petition should have been rightfully filed in the high Court.

17. It is my finding that the Runyenjes court lacked the jurisdiction to issue the letters of administration intestate and to confirm the grant. This renders the entire proceedings in the succession cause null and void and I so declare.

18. Having so found, I am of the considered opinion that it does not make sense to proceed to deal with the other issues raised in this appeal for they are founded on void proceedings.

19. In view of the enhanced jurisdiction of the magistrates court, this case is referred to Runyenjes Senior Principal Magistrate's court to be heard afresh.

20. Each party to meet their own costs of this appeal.

21. The appeal is hereby allowed.

DELIVERED, DATED AND SIGNED AT EMBU THIS 21ST DAY OF MAY, 2018.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Mugambi for Kahuthu for Appellant

Mr. Okwaro for Joe Kathungu for Respondent