[2025] KEHC 3781 (KLR)

Legorn Feeds v Kariuki (Family Miscellaneous Civil Case E007 of 2024) [2025] KEHC 3781 (KLR) (23 January 2025) (Ruling)

Neutral citation: [2025] KEHC 3781 (KLR)

Republic of Kenya

In the High Court at Kiambu

Family Miscellaneous Civil Case E007 of 2024

DO Chepkwony, J

January 23, 2025

Between

Legorn Feeds

Applicant

and

Isaac Wairagu Kariuki

Respondent

Ruling

1. For determination before this court is the Notice of Motion application dated 28th February, 2024 filed pursuant to Article 159 of the Constitution, Sections 3A and 15 both of the Civil Procedure Act and Rules 73 and 59, both of the Probate and Administration Rules. It seeks the following orders:a.Spent.b.This Honourable Court be pleased to order the transfer of file CMC Succession Cause No. 449 of 2022 at Kiambu and the same be placed before this Honourable Court for hearing and disposal of the application.c.That there be a stay of execution on the estate and or stay of execution on the transmission as per the Certificate of Confirmation of Grant made on 13th October, 2024 pending the hearing and determination of the application.d.That there be a conservatory order on the estate of Johana Kariuki Wairagu and stay of execution orders on the transmission of the properties named in the Confirmed Grant in the CMC Succession Cause No. 449 of 2022 pending the hearing and determination the ELC Case No. 661 of 2017 before the High Court in Thika.e.That costs be provided for.f.That this Honourable Court be pleased to order and/or grant such order or relief as this Honourable Court may deem just and /or expedient in the circumstances.

2. The application is premised on the grounds as set out on its face and the Supporting Affidavit of Stephen Waithiru Baiya sworn on the instant date. According to the Applicant he bought land from the deceased in Succession Cause No. E449 of 2022 at Kshs. 30,000,000/= and when he tried to take possession, they were sued vide ELC No. 661 of 2017 at Thika by the wives. The Applicant avers that it was then that he learnt that some facts had not been disclosed to him at the point of sale and that the whole transaction was based on fraud. He then counter – sued the Deceased and two (2) others in the suit at the Environment and Land Court, and as a precaution, the court ordered that the purchase price paid by the Applicant to the Deceased be deposited in an interest earning bank account in the names of both advocates for the Deceased and the Applicant. However, at time of the Deceased’s death, the money had not been deposited, and has never been deposited as directed vide the ruling dated 18th March, 2019.

3. It is the Applicant’s contention that upon hearing of the demise of the deceased, he filed and served citations to the representatives and while waiting for the period to lapse, his advocate informed him that they had been served with a Grant of Administration issued on 11th October, 2022, and a Certificate of Grant, confirmed two days later, on 13th October, 2022, wherein all the properties owned by the Deceased had been listed. This, then meant that despite being served with the citation and being aware of the Thika Environment and Land Court Case, the Representatives/ Administrators of the deceased’s estate did not disclose that they had a pending Succession Case over the deceased’s death.

4. The Applicant holds that the upon his demise, the deceased was substituted by the Representatives of the estate and from the official search of some of the deceased properties, the Applicant learnt that there had been transmission of some of those properties such as Loc 16/Kimandi- Wanyaga/298 and he is fearful that if the orders sought are not granted, he stands to lose irreparably. It is the Applicant’s contention that it would be in the interest of justice that these orders be granted as the suit before the court may be rendered a nullity and the loss and damages, enormous.

5. It is the Applicant’s prayer that substitution of the deceased having been done, he be granted conservatory orders to stay the execution of the Grant or any change of hands of any property listed as belonging to the deceased, pending the hearing and determination of the ELC Suit No. 661 of 2017 at Thika High Court. That this is because, the Respondent has already initiated the process of executing the confirmed Certificate of Grant and he may not have security for the suit.

6. The Respondent opposed the application through a Replying Affidavit sworn by Isaac Wairagu Kariuki on 14th March, 2024, wherein the Respondent avers that in its ruling in CMC. Succession Cause No.E449 of 2022, the trial Court (Hon. Ooko) did not state that it lacked pecuniary jurisdiction and thus the application dated 28th February, 2024 is not seeking to revoke and annul the certificate of confirmation of grant as stated. The Respondent also contends that vide ruling of 21st February, 2022, the court found what ought to have been beyond its jurisdiction is the order in Thika High Court ELC No.661 of 2017 dated 18th March, 2019, where the claim was over Kshs. 30,000,000/= in value hence striking it out. Therefore, the Respondent finds that the application for the transfer of the suit to be baseless and only an attempt to introduce a new cause of action.

7. The Respondent further contends that the application is marred with misrepresentations, in that, in the Thika Environment and Land Court Case, the Applicant has countersued the deceased herein through his representatives, Gachuhi Kamenya and Michael Warui Gikima and not the deceased only, which makes the application discriminatory towards the deceased. The Respondent holds that on the allegations by the Applicant that the sale of the subject property was fraudulent, no evidence of any criminal charges of fraud have been raised.

8. It is therefore, the Respondent’s contention that the application is devoid of merit since the ruling of the trial Court (Hon. Ooko) has not been appealed against, reviewed or set aside, and that this application is only a back door attempt to execute the orders of Thika Environment and Land Court Case. He has thus urged the court to dismiss the application with costs.

9. The court directed the application to be dispensed with by way of written submissions, by which the Applicant filed his submissions dated 21st March, 2024, and the Respondent filed submissions dated 9th April, 2024. The court has read through the arguments in both sets of submission for consideration in its determination of this application.

Analysis and Determination 10. In consideration of the Notice of Motion application dated 28th February, 2024, I have read through the grounds upon which the prayers therein ae premised on its face and Supporting Affidavit alongside the Replying Affidavit and respective written submission by the parties and find that the main issues arising for determination are :-a.Whether this CMC Succession Cause No.449 of 2022 at Kiambu Law Courts can be transferred to this Court for hearing and determination.b.Whether a conservatory order on the Estate of Johana Kariuki Wairagu and stay of execution orders on the transmission of the properties named in the Confirmed Grant in the CMC Succession Cause No.449 of 2022 can issue pending the hearing and determination of the ELC Case No.661 of 2017 by the High Court in Thika.c.Who is entitled to costs of this application herein.

11. With regard to the prayer to transfer CMC Succession Cause No.449 of 2022, Kiambu to this Court, reliance is placed on the provisions of Section 15 of the Civil Procedure Act which confers the High Court jurisdiction to transfer suits from one Court to and it states as follows:-“(1)On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—a.transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or,b.withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—i.try or dispose of the same; orii.transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; oriii.retransfer the same for trial or disposal to the court from which it was withdrawn.(2)Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.”

12. The circumstances under which a court may transfer suits were set out in the case of David Kabungu –vs- Zikarenga & 4 Others, Kampala HCCS No. 36 of 1995, as follows:-“Section 18(1) of the Civil Procedure Act gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even suo moto by the court without application by any party. The burden lies on the Applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another court is not sufficient ground though it is relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice or the suit has been filed in a particular court for the purposes of working injustice. What the court has to consider is whether the Applicant has made a case to justify it in closing doors of the court on which the suit is brought to the Plaintiff and leaving him to seek his remedy in another jurisdiction …….. It is a well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted. There are also authorities that the principal matters to be taken into consideration are balance of convenience, questions of expenses, interest of justice and possibilities to undue hardship and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the duplication must be refused. Want of jurisdiction of the court from which the transfer is sought is no ground for ordering transfer because where the court from which transfer is sought has no jurisdiction to try the case, transfer could be refused……"

13. In the instant case, the Applicant’s reason for seeking transfer of the suit to this court for hearing and determination is that in a ruling by the trial court it was stated that it does not have pecuniary jurisdiction to handle the matter. In the Replying Affidavit, the Respondent quoted an excerpt of the Ruling in which the Trial court indicated that the disclosed estimate of the estate of the deceased was Kshs. 1,000,000/= which it stated could be mis-concealment of the accurate estimate of the estate and held that the same could be rectified by any interested party by way of seeking revocation of the grant.

14. Having read through the Ruling of the trial court in the said Succession Cause No. E449 of 2022, this court notes that indeed, the court lacks jurisdiction to handle and determine the case herein since the value of the property in question is Kshs. 30,000,000/= which is beyond its pecuniary jurisdiction. It is also appreciated that the trial court noted that it issued the Certificate of Confirmation of Grant based on the disclosed estimate of the value of the estate at Ksh. 1,000,000/= which was as a result of mis-concealment or misrepresentations to the court to which it stated that the anomaly could only be rectified by way of revocation of grant. And upon finding that the Notice of Preliminary Objection dated 7th August, 2023 had merit, struck out the Notice of Motion Application dated 11th July, 2023 and advised the parties to move to the High Court for transfer orders and for resolution of the dispute.

15. Following the trial court’s decision that it lacks pecuniary jurisdiction to handle the matter, this Court finds that the said court was justified to down it tools and proceeds to allow the Notice of Motion Application dated 28th February, 2024, in the following terms:-a.That CMC Succession Cause No. E449 of 2022, at Kiambu be and is hereby transferred to the High Court for hearing and determination.b.In the meantime, there be a stay of execution of the Estate and or the transmission as per the Certificate of Confirmation of Grant issued on 13th October, 2024, pending the hearing and determination of the ELC Case No. 661 of 2017 before the High Court in Thika dealing on the gist of the dispute on the ownership of the subject land in question.c.Each party to bear its own costs.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 23 RD DAY OF JANUARY , 2025. D. O. CHEPKWONYJUDGE