[2014] KEHC 1522 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO. 161 OF 2010

KIBIRECH A. SITIENEI ................................................................APPELLANT

VERSUS

GEOFREY LELGO SAINA …....................................................RESPONDENT

(Being an appeal from the Ruling of Hon. J. M. Njoroge (Principal Magistrate) in Kapsabet Principal Magistrate's Succession Cause No. 102 of 2006 delivered on 24th August, 2010)

JUDGMENT

It is first and foremost important to note that, although on the face of the record of appeal, it appears that the appeal is from the Judgment delivered on 29th September, 2009, the Memorandum of Appeal indicates that the appeal is from the ruling delivered on 24th August, 2010. Grounds of Appeal too are premised on the ruling and NOT the Judgment. The court has then corrected the heading to read that the appeal is from the ruling and not the judgment.

The ruling itself is contained within the proceedings and is found at page 38 of the record of appeal. It was on a Preliminary Objection dated 9th July, 2010 that was raised by the Petitioner. Incidentally, the Preliminary Objection is not compiled in the Record of Appeal. It is however still intact in the lower court file. The following issues were raised.

(a)That the Honourable Court lacks jurisdiction to entertain the proceedings.

(b)That the value of the estate upon which the present application is based exceeds the jurisdiction of the court.

In its ruling the trial court observed that the Petitioner had raised the issue of want of jurisdiction of the court too late in the day when indeed the cause had been heard to its logical conclusion and a judgment delivered on 29th September, 2009. It ruled that it was functus officioto the matter and that that application was tantamount to the court sitting on its own appeal. Accordingly the preliminary objection was dismissed with costs.

The following grounds of appeal have been raised in the Memorandum of Appeal dated 26th August, 2010.

1. The learned Magistrate erred in both law and fact in dismissing the preliminary objection without due regard to the proper law.

2. The learned Magistrate erred in both law and fact in failing to consider the Applicant's valuation report and the High Court Authority supplied.

3. The learned Magistrate erred in both law and fact in arriving at his decision without regard to submissions made on behalf of the Appellant.

4. The learned Magistrate erred in law and fact in failing to find that he had no jurisdiction in law to handle the matter from the beginning.

5. The learned Magistrate's ruling is unfair, and unjust in the circumstances.

Parties filed written submissions to the appeal. Those of the Appellant are dated 13th December, 2012 and were filed on 17th December, 2012 by M/s. Okara & Co. Advocates. The gist of the submissions is that the deceased's estate was valued at more than Kshs. 100,000/=. In particular, it was argued that the trial court failed to give consideration to the valuation report which showed that the property was valued at Ksh. 14. 6 Million.

M/s. S. K. Kitur & Co. Advocates filed written submissions on behalf of the Respondent on 8th January, 2013. It was submitted that the learned trial Magistrate arrived at the proper finding that the Preliminary Objection was filed belatedly after a judgment had been delivered. As such, the trial court could not sit on its appeal. Then the most prudent thing to do was to appeal against the Judgment.

The Respondent further submitted that it is the Appellant as the Petitioner who filed the succession cause. He did not raise an objection on the jurisdiction of the Magistrate's court until the estate was distributed. By that dint, he was estopped from claiming that the court had no jurisdiction.

I have accordingly considered the grounds of appeal raised alongside the submissions made by the respective counsel. As I said earlier in this Judgment this appeal is from the ruling on Preliminary Objection that was raised by the then Petitioner (now Appellant). He claimed that the court had no jurisdiction to entertain the succession cause because the estate of the deceased was valued at more than Ksh. 100,000/=. The objection was raised after the court had heard all the parties and delivered a Judgment in which the estate was distributed. This being the position, what the Appellant was asking the court to do was to recall its Judgment and refer the matter for distribution to the High Court. That was an impossibility.

The Appellant ought to have raised the issue of want of the court's jurisdiction before the cause was heard in which case the learned Magistrate would have considered any evidence tendered before him in prove that the estate was valued at more than Ksh. 100,000/=. Instead, he waited until the cause was concluded and the outcome was not in his favour.

As rightly then submitted by the Respondent, that Preliminary Objection was belatedly filed and the court did the right thing in dismissing it. The learned Magistrate's holding that the Preliminary Objection was tantamount to sitting on an appeal in his Judgment was proper and not a misdirection on his part.

It is trite that jurisdiction in succession matters both in the High Court and the Magistrate's Courts are governed under Sections 47 to 50 of the Law of Succession Act. That of the Magistrates' courts is specified under Section 48 (1) which provides as follows:-

“48 (1) Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a Resident Magistrate shall 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.

It then follows that the jurisdiction of a given court goes to the root of the matter the court should entertain. Although at the time the evidence was tendered the petitioner did not provide documentary evidence of the value of the estate, the proposed distribution of the estate cumulatively showed the acreage of the land – NANDI/CHEBILAT/470 to be 37. 2 acres. By no means can the property of such acreage anywhere in the Republic, (and particularly the location of the land) can be Ksh. 100,000/= or below. Effectively, this is a cause that ultimately ought to have been heard by the High Court.

In that regard, the Appellant misdirected himself in filing the appeal from the ruling on the Preliminary Objection as opposed to an appeal from the Judgment. That way, this court would have adequately addressed itself to the issue of jurisdiction.

In the end, it is my finding that the learned trial Magistrate arrived at the proper finding in his ruling. Accordingly, this appeal must fail. The same is dismissed with costs.

DATED and DELIVERED at ELDORET this 13th day of November., 2014.

G. W. NGENYE - MACHARIA

JUDGE

In the presence of:

Mr. Okara Advocate for the Appellant

Mr. Kitur (absent, duly served with Judgment Notice) for the Respondent