1. Before me is an exparte Notice of Motion application dated 23rd January 2023. Vide the said application the applicants seek the following orders:-
a. That this application be certified urgent and be heard exparte in the first instance; and
b. That this honourable court directs that there be a transfer of Nairobi CMCC Succession Cause No. E159 OF 2023; In the Matter of the Estate of of the late Guru Mahinder Singh (also known as Salim Mohamed)(deceased) which was erroneously filed at Mombasa Magistrates Court instead of Milimani Magistrates Family Court.
2. The application is supported by the grounds in the body of the motion and also by the supporting affidavit of Mohamed Ali Mohamed, learned counsel for the applicants. In the said affidavit the deponent avers that the matter was filed in error in Mombasa, and should instead have been filed in Nairobi. In paragraph 3 of the supporting affidavit counsel draws the court's attention to the heading of the petition.
3. I have perused the application in its entirety. I note that the deceased and his family resided in Nairobi. The death certificate indicates that the deceased was at the time of his demise resident at Southlands. The sole asset of the deceased, whose value is given as Kes.2,000,000/-, is a parcel of land situated in Nairobi. His wife and 2 daughters have Nairobi postal addresses.
4. In the circumstances this court is persuaded that the filing of the case before the Mombasa Chief Magistrate's Court was in error. The Petition should have been filed in Nairobi. Due to an error on the part of the office of the counsels for the petitioners, that wasnt done. The error has been explained. I find the explanation reasonable and in all likelihood truthful. In the circumstance what remedy should issue?
5. Section 18(1)(b) of the Civil Procedure Act empowers this Court to transfer a case pending before a court subordinate to it to another subordinate court. The said Act gives this court discretion in the matter. Should I exercise the said discretion? In my view it would be fair and just in the circumstances of this case to do so.
6. I must point out that this matter is non-contested succession cause. The application is simple and straight forward. It has merits. In the circumstances I allow it as prayed. I order that the file pending before the Mombasa CM Court be transferred to Milimani Magistrates Family Court for hearing and determination.
7. I make no orders as to costs.
Orders accordingly.
Dated and signed at Mombasa this 26th day of January 2024.