[2009] KEHC 588 (KLR)
The court held that the Senior Resident Magistrate's Court at Kilgoris lacked jurisdiction to issue a grant of letters of administration for an estate valued at Kshs. 300,000, as its statutory limit is Kshs. 100,000 under Section 48(1) of the Law of Succession Act. Any grant issued without jurisdiction is a nullity...
Source-derived case information.
- Citation
- [2009] KEHC 588 (KLR)
- Parties
- Applicant: Mary Chepkamor Francis; Applicant: Lekakeny Ntirra; Applicant: Catherine Koriko; Respondent: Evaline Rosa
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 474 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation/annulment of Grant
- Outcome
- Application allowed; grant and title deed declared null and void.
- Judges
- DK Musinga
- Legal Topics
- Jurisdiction of Magistrate Courts, Revocation of Grant, Fraudulent Obtainment of Grant, Title Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Chepkamor Francis
Applicant
Lekakeny Ntirra
Applicant
Catherine Koriko
Applicant
Evaline Rosa
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation/annulment of Grant
Legal Issues
- 1 Whether the Senior Resident Magistrate's Court at Kilgoris had jurisdiction to issue a grant of letters of administration for an estate valued above Kshs. 100,000.
- 2 Whether the grant and subsequent title transfer to the petitioner were null and void due to lack of jurisdiction and alleged fraud.
Ratio Decidendi
The court held that the Senior Resident Magistrate's Court at Kilgoris lacked jurisdiction to issue a grant of letters of administration for an estate valued at Kshs. 300,000, as its statutory limit is Kshs. 100,000 under Section 48(1) of the Law of Succession Act. Any grant issued without jurisdiction is a nullity and all subsequent actions, including the transfer and issuance of title deed to the petitioner, are equally void. The court found it unnecessary to address the alleged fraud, as the lack of jurisdiction alone was sufficient to invalidate the grant and all proceedings founded upon it. The application for revocation/annulment was allowed, and the title deed obtained by the...
Court Disposition
Application allowed; grant and title deed declared null and void.
Orders
- The grant of letters of administration issued by the Senior Resident Magistrate's Court at Kilgoris is revoked and annulled.
- The title deed obtained by the petitioner is cancelled.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISII
Succession Cause 474 of 2009
MARY CHEPKAMOR FRANCIS )
LEKAKENY NTIRRA ) …... OBJECTORS/APPLICANTS
CATHERINE KORIKO )
VERSUS
EVALINE ROSA …….……. PETITIONER/RESPONDENT
RULING
Section 48(1) of the Law of Succession Act limits the jurisdiction of a Resident Magistrate’s court to issue grants for letters of administration to estates whose gross value does not exceed Kshs. 100,000/=.
A grant issued by a court without jurisdiction is a null and void and of no legal consequence. In MACFOY –VS- UNITED AFRICA LIMITED [1961] 3 ALL ER 1169, Lord Denning said at Pg. 1172:
“If an act is void, then it is in law a nullity
and not a mere irregularity. It is not only
bad but incurably bad. There is no need
for an order of the court to set it aside.
It is automatically null and void without
more ado, though it is sometimes
convenient to have the court declare it
to be so. And every proceeding which
is founded on it is also bad and incurably
bad. You cannot put something on nothing
and expect it to stay there. It will
collapse.”
In Succession Cause No. 9 of 2005 in the Senior Resident Magistrate’s Court at Kilgoris, Evarline Rosa applied for letters of administration in respect of the estate of Kimayio Ole Ntira, hereinafter referred to as “the deceased.”In the affidavit in support of the petition, the petitioner said that she was a daughter of the deceased. She had earlier obtained a letter from James Ole Kaipoi, the Chief, Oloibor-Soito Location, stating that she was a daughter of the deceased.
In her affidavit, the petitioner deposed that the estate of the deceased was valued at approximately Kshs. 300,000/=. Despite that express disclosure, W.K. Chepseba, Senior Resident Magistrate, Kilgoris, went ahead to issue letters of administration to the petitioner. The said court simply acted ultra vires its jurisdiction.
Thereafter the grant was confirmed and the petitioner proceeded to transfer to herself land parcel No. Transmara/Oloiborsoito/12 that was previously owned by the deceased.
On 17th August, 2009 the applicants herein applied for revocation or annulment of the said grant. They also urged the court to annul the transfer and the title deed aforesaid on the ground that the grant was obtained fraudulently and by means of an untrue allegation that the petitioner was a daughter of the deceased whereas she was a grandchild.
The petitioner filed a replying affidavit and denied that she was the deceased’s grandchild, she reiterated that she was the only child of the deceased.
I have perused the written submissions filed by the advocates for the respective parties hereto. Though the applicants did not raise the issue of jurisdiction of the Kilgoris Senior Resident Magistrate’s court, it is obvious that the court lacked jurisdiction to issue the grant in view of the disclosed value of the deceased’s estate. The grant was a nullity and so was everything else that was done pursuant to the issuance of the same.
The application must be allowed for that reason alone.
The title deed that was obtained by the petitioner is also ordered cancelled. The petitioner shall bear the costs of the application.
DATED, SIGNED AND DELIVERED AT KISII THIS 20TH DAY OF NOVEMBER, 2009.
D. MUSINGA
JUDGE.
20/11/2009
Before D. Musinga, J.
Mobisa – cc
Mr. Nyasimi for the Applicant
Mr. Oguttu for the Respondent
Court: Ruling delivered in open court on 20th November, 2009.
D. MUSINGA
JUDGE.