In the Estate of SHANKA ALEX MPAATIA

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

SUCCESSION CAUSE NO. E054 OF 2024

IN THE MATTER OF THE ESTATE OF ALEX MPAATIA SHANKA DECEASED

FAITH SAINAPEI MPAATIA ………………………………….PETITIONER/APPLICANT

VERSUS

HELLEN MALIPA MPAATIA……………………………………………..…RESPONDENT

RULING

The Application

1. Faith Sainapei Mpaatia, the Applicant has moved this Court through a Notice of Motion dated 19^th June 2024 seeking the following orders:
2. Spent.
3. That pending the hearing and determination of this Application or until further orders, this Honourable Court be pleased to suspend all actions of implementation of the Grant of Letters of Administration issued on 23^rd May 2023 and subsequent Certificate of Confirmation issued on 17^th July 2023 in Kiambu Chief Magistrates’ Succession Cause No. 232 of 2023 in the Matter of the Estate of Alex Mpaatia Shanka (deceased).
4. That pending the hearing and determination of this Application or until further orders of this Honourable Court, an order inhibition do issue restraining/restricting any dealings whatsoever on the Registers for Land Title Nos. Kajiado/Kaputiei-North/24768, 24769 and 28262 and or any parcels of land emanating from the subdivision of the aforementioned parcels of lands.
5. That pending the hearing and determination of this Application and this Cause a Temporary order of injunction do issue restraining the Respondent acting by herself, her children, agents, servants and/or any other person whatsoever from interfering in any manner whatsoever with the Applicant’s occupation, residence, possession and user of the Land Title No. Kajiado/Kaputiei-North/28262 where she currently lives together with her daughters.
6. That this Honourable Court be pleased to exercise its supervisory powers by calling the entire Record of Proceedings and File in Kiambu Chief Magistrates’ Succession Cause No. 232 of 2023 in the Matter of the Estate of Alex Mpaatia Shanka (deceased) for purposes of interrogating, verifying and ascertaining the propriety, correctness and regularity thereof or otherwise and to revoke and/or annul the Grant of Letters of Administration issued to the Respondent on 23^rd May 2023 and set aside the resultant Certificate of Confirmation issued on 17^th Julu 2023.
7. That any entries in the Registers for Land Title Nos. Kajiado/Kaputiei-North/24768, 24769 and 28262 made at the instance of the Respondent and on the basis and furtherance of the impugned Grant issued on 23^rd May 2023 and the ensuing Certificate of Confirmation issued on 17^th July 2023 be cancelled and the Register to revert to the status ante.
8. That an order do issue compelling the Respondent to give and/or render full account of the rental income received on behalf of the estate namely Kajiado/Kaputiei-North/24768, 24769, 28262, Plot Nos. 91 and 172 in Kisaju since the demise of the deceased to date totalling a sum of Kshs 10,560,000 or thereabouts.
9. That pending the hearing and determination of this Cause or until further orders, this Honourable Court be pleased to order that all rental income from the said estate properties be deposited in an account to be opened in the name of the person appointed by this Honourable Court as the administrator to avoid further wastage and to be utilized as directed by this Honourable Court.
10. That this Honourable Court be pleased to issue a Grant of Letters of Administration Intestate herein in favour of the Applicant and preferably give directions on the distribution of the Estate of the deceased herein as by law required.
11. That this Honourable Court be pleased to grant any other or further orders it may deem fit and expedient in the circumstances of the best interest of justice.
12. That the Respondent be condemned to pay the costs of this application.
13. The Applicant has based this application on the grounds found on the face of the application and in the supporting affidavit sworn on 19^th June 2024. In summary form the Applicant has stated that she filed this Succession Cause after the Respondent delayed in responding to the Citation she had filed and that the Respondent filed a Replying Affidavit in response to these proceedings through which the Applicant became aware that the Respondent had filed a Succession Cause in the Chief Magistrate’s Court in Kiambu in which she has left out the Applicant and her children and had left out some properties belonging to the estate.
14. She has stated that the Magistrate’s Court at Kiambu did not have the pecuniary jurisdiction to handle the succession cause because the estate is valued over Kshs 530,000,000; that the Kiambu Chief Magistrate’s Court did not have territorial jurisdiction to entertain the succession cause and that the proceedings to obtain the grant and the subsequent confirmation of the grant by the Respondent are therefore defective in substance for want of jurisdiction and failure to include all the beneficiaries.
15. The Applicant has stated further that the grant was obtained through misrepresentation and concealment of material  facts; that the Respondent has failed to diligently proceed with the administration of the estate by omitting some of the beneficiaries and including a stranger, Stephen Muturi Ngugi, as a beneficiary and that no prejudice will be suffered by the Respondent if the orders sought are granted since the orders are preservative in nature.

The Notice of Preliminary Objection

1. The Respondent filed a Notice of Preliminary Objection (PO) dated 10^th July 2024. The issues raised in the PO are that this Court lacks jurisdiction since this Succession Cause is res judicata, the matter having been heard and determined in Kiambu Chief Magistrate’s Court Succession Cause No. E232 of 2023; that the Applicant has further filed a Notice of Motion Application supported by an Affidavit seeking revocation of the Grant issued on 23^rd May 2023 and confirmed on 17^th July 2023.
2. The Respondent is questioning the jurisdiction of this Court for reasons that this matter is res judicata and that this Court lacks territorial jurisdiction to try this matter by dint of Rule 44(1) of the Probate and Administration Rules.
3. The Notice of Motion application and the PO were canvassed together by way of written submissions.

The Submissions

1. The Applicant’s submissions are dated 7^th August 2024. She has raised the following issues for determination:

Whether this Honourable Court has jurisdiction to hear and determine this matter?

1. The Applicant cited Owners of Motor Vessel “Lillian S”  v Caltex Oil (Kenya) Ltd (1989) KLR 1 and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR to the effect that jurisdiction is everything and that without it a court has no power to proceed with the matter, and further that jurisdiction flows from either the Constitution or legislation or both and that a court of law can only exercise jurisdiction as conferred by the Constitution or other written law and cannot arrogate itself jurisdiction exceeding that which is conferred by law.
2. She submitted that this Honourable Court is seized with territorial and pecuniary jurisdiction to determine this matter by dint of section 47 and 48(1) of the Law of Succession Act given the value of the estate and the geographical location.

Whether the bPetition herein is res judicata?

1. The Applicant relied on Henry Wanyama Khaemba v Standard Chartered Bank & another (2014) eKLR where it was stated that:

“The issues of res judicata, duplicity of suits and suit having been spent will require probity of evidence as it is already evident from the submissions by the 1^st Defendant. They are incapable of being handled as Preliminary Objection because of the limited scope of jurisdiction on Preliminary Objection.”

1. She also relied on George Kamau Kimani & 4 others v County Government of Trans Nzoia & another [2014] eKLR and John Florence Maritime Services Limited & 3 others [2015] eKLR where the Court stated as follows:

“From the above, the ingredients of res judicata are firstly: that the issue in dispute in the former suit between the parties must directly or substantially be in issue between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally (see Karia & another v the Attorney General and others [2005] 1 EA 83.”

1. It was submitted that the Kiambu Chief Magistrate’s Court did not have both pecuniary and territorial jurisdiction to entertain in any way whatsoever the said Succession proceedings regarding the estate of the deceased. It was submitted that the PO has no merit and ought to be dismissed.
2. In respect of the Notice of Motion, the Applicant submitted that this court is empowered to exercise supervisory jurisdiction over any subordinate court. She relied on Article 165 (6) (7) of the Constitution that empowers this Court to exercise supervisory jurisdiction over subordinate courts and to call for the record of any proceedings before the subordinate court and make any appropriate order or direction.
3. She also cited section 76 of the Law of Succession Act on the grounds upon which a Grant may be revoked or annulled and submitted that the Applicant has satisfied the threshold of the above section by demonstrating that the Kiambu Chief Magistrate’s Succession proceedings were totally defective and ought to be revoked.
4. She submitted that she has satisfied the requirements of section 40 (1) (a) (b) of the Civil Procedure Rules to warrant grant of temporary injunction to maintain status quo util this matter is determined. She has submitted that an order of inhibition ought to issue to inhibit further dealings in the estate of the deceased until the matter is heard and determined and that the Respondent will not suffer any prejudice.
5. It is the submission of the Applicant that she has demonstrated why she deserves the orders sought and that the court should grant her these orders and costs of the application.
6. The Respondent’s submissions are dated 26th August 2024. The Respondent has cited section 7 of the Civil Procedure Act and the Estate of Andrew Achoki Mogaka (deceased) (Probate and Administration 35 of 2019) (2023) KEHC 25670 (KLR) on what constitutes res judicata and submitted that the succession proceedings herein have been delt with conclusively in Kiambu before the Chief Magistrate’s Court and is therefore res judicata.
7. The Respondent submitted that this court lacks jurisdiction to entertain this application for the reason that it was filed in the wrong court; that the Applicant ought not to have filed it in Kajiado High Court because the grant sought to be revoked was issued in Kiambu Chief Magistrate’s Court and that the Notice of Motion offends Rule 44 of the Probate and Administration Rules in not conforming to the procedure under that Rule.
8. It was submitted that the Applicant has not satisfied the principles for grant of an interlocutory injunction as expounded in Giella v Cassman Brown & Company Limited (1973) EA 358; that she has not established a prima facie case as defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 othrs [2003] eKLR. It was submitted that a grant has been issued and confirmed and the estate of the deceased distributed; that the Applicant has not provided particulars of fraud and that the conservatory orders sought have been overtaken by events given that the estate has been distributed.
9. The Respondent seeks dismissal of the Notice of Motion application dated 19^th June 2024 with costs.

Analysis and determination

1. I have read and understood the pleadings of both parties and their arguments through their respective submissions. To my mind the issues that arise for my determination are:
2. Whether this Honourable Court is seized with jurisdiction to determine this application.
3. Whether the Notice of Motion application is properly before this Honourable Court.
4. Costs of this application.

Whether this Honourable Court is seized with jurisdiction to determine this application

1. From the records in the court file, the deceased died on 14^th October 2020. The Affidavit in support of the Petition for Grant of Letters of Administration sworn by the Applicant on 20^th May 2024, the deceased was polygamous. He was survived by two wives, Hellen Malipe Mpaatia and the Applicant and six children, four children, namely Sarah Mpaatia, Emmanuel Kana Mpaatia, Stanley Sankale Mpaatia and Neema Sian Mpaatia, with Hellen and two children namely Sasha Mosin Mpaatia and Precious Nashapae Mpaatia, with the Applicant. The letter of the Chief, Mr. Stephen Tipanko, of Oloosidan Location, Isinya Division, Isinya Sub-County, Kajiado County confirms this state of affairs.
2. The deceased, as deposed in the Affidavit in support of the Petition, left the following properties forming his estate:
3. Kajiado/Kaputiei-North/24768 approximately 20.24 hectares.
4. Kajiado/Kaputiei-North/24769 approximately 20.84 hectares.
5. Kajiado/Kaputiei-North/28262 approximately 2.03 hectares
6. Land 91/Business Kisaju
7. Land 172/Residential Kisaju
8. Rental income from the estate properties.
9. It is the Applicant’s case that her co-wife Hellen did not join her in taking action towards filing a succession cause; that she filed a citation against Hellen and upon service, Hellen filed a Replying Affidavit through which the Applicant became aware that Hellen had filed a Succession Cause in the Chief Magistrate’s Court in Kiambu being Kiambu Chief Magistrate’s Succession Cause No. 232 of 2023 in which she has omitted to include all the beneficiaries of the deceased’s estate and some properties forming the estate; that the Applicant became aware that the grant issued in Kiambu had been confirmed and the estate shared to, among others, one Stephen Muturi Ngugi, a stranger to the estate.
10. I have noted that through Gazette Notice No. 7398 dated 14th June 2024, the Petition was gazette inviting objections by any interested party to the issuing of the Grant to the Applicant.
11. The Applicant moved the court through the instant Notice of Motion to grant the orders sought in it. The Respondent did not file a Replying Affidavit to this Application. She instead chose to file a Notice of Preliminary Objection challenging the jurisdiction of this court on two fronts: firstly that this matter is res judicata the same having been delt with conclusively before the Chief Magistrate in Kiambu and secondly because Kajiado High Court lacks supervisory authority over Kiambu Chief Magistrate’s court.
12. I appreciate all the authorities relied on by the parties. Article 165 establishes the High Court with jurisdiction flowing from the same Article. Sub-articles 6 and 7 of that Article provide that:

(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

1. Under section 47 of the Law of Succession Act, the High Court is empowered to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders therein as may be expedient.
2. The pecuniary jurisdiction of the Magistrates in civil matters is guided by section 7 of the Magistrates Court Act which sets out the pecuniary limits of the jurisdiction depending on the cadre of the magistrate. In respect to succession matters, the jurisdiction of the magistrates is guided by section 48 of the Law of Succession Act which provides that:

Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a magistrate shall have jurisdiction to entertain any application 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 the pecuniary limit prescribed under section 7 of the Magistrates' Courts Act (Cap 10).

1. Further, the territorial jurisdiction of the magistrates in succession matters is guided by section 49 of the Law of Succession Act which provides that:

The Magistrate's Court within whose area a deceased person had his last known place of residence shall, if the gross value of the estate of the deceased does not exceed the pecuniary limits set out in section 7(1) of the Magistrates' Courts Act (Cap 10), have in respect of that estate the jurisdiction conferred by section 48.

Provided that—

1. the magistrate may, with the consent or by the direction of the High Court, transfer the administration of an estate to any other Magistrate's court where it appears that the greater part of the estate is situated within the area of that other magistrate or that there is other good reason for the transfer; (ii) if the deceased had his last known place of residence outside Kenya, the High Court shall determine which magistrate shall have jurisdiction under this section;
2. (iii) every Magistrate's Court shall have jurisdiction, in cases of apparent urgency, to make a temporary grant of representation limited to collection of assets situated within his area and payments of debts, regardless of the last known place of residence of the deceased.
3. It is clear under the Constitution that the High Court has wide and unlimited jurisdiction in civil and criminal matters. However, the administration and management of the High Court in Kenya is clearly demarcated. For ease of handling disputes, there are guidelines on which High Court station should a party file her/his matter. Parties must file their matters as guided by the Civil Procedure and the other legislation including the Law of Succession Act. Almost every County in the Republic of Kenya has a High Court Station. A party must consult the law and determine the right forum for filing his or her case. Each High Court station, too, has subordinate courts under it upon which that High Court exercises supervisory jurisdiction.
4. Parties should not be allowed, for good order and ease of doing business, to forum shop in order to conceal from another interested party in the matter at hand the court in which the matter has been filed. In respect of the instant estate and the succession proceedings, the Applicant has stated that the deceased was a resident of Kajiado County and the properties forming the estate of the deceased are all located within Kajiado County. While this court has not received concrete evidence as to the current value of the estate, it is not lost to this Court that these succession proceedings are clearly in the right forum, Kajiado High Court taking the evidence by the Applicant that the value of the estate is above the pecuniary jurisdiction of the subordinate court.
5. This Court therefore is seized with the jurisdiction to determine these succession proceedings. I hasten to state that this court does not exercise supervisory jurisdiction over subordinate courts in Kiambu County because there is a High Court in Kiambu which is empowered to supervise subordinate courts under it.
6. I will also restrain myself from making pronouncements as to whether the Kiambu Chief Magistrate’s Court has jurisdiction to handle the succession matter because of the same reason and that any pronouncements made in that respect may be prejudicial to any action taken by either of the parties in Kiambu High court.
7. On the issue of res judicata, I wish to state that this matter is not res judicata for the reason that it does not meet all the requirements of res judicata. It is my considered view that the subject matter in the Kiambu succession proceedings may have been about the estate of the deceased, however, the Applicant was not a party to those proceedings. There is also the unresolved issue as to whether the Kiambu Chief Magistrate has the jurisdiction to determine the succession cause. The elements that give rise to res judicata must all be present, that is that the elements are conjunctive rather than disjunctive.

Whether the Notice of Motion application is properly before this Honourable Court.

1. The Notice of Motion dated 19^th June 2024 is based on various provisions of the law. It was brought as a Notice of Motion and not Summons. Some of the provisions of the law cited, for instance Order 51 Rule 1, Sections 1A, 3 and 3A of the Civil Procedure Rules and Act respectively are not applicable in succession matters by dint of Rule 63 of the Probate and Administration Rules.
2. The Applicant has also invoked Section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules on the revocation of the grant and the procedure in seeking revocation of the grant. She has also cited Rule 73 of the Probate and Administration Rules which provides that:

Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

1. The Applicant is not clear that she is seeking revocation of the Grant. If this is what she is seeking, then she would fail for the same reason given above that this court has no jurisdiction to revoke a grant issued in Kiambu Chief Magistrate’s Court because this court in so doing would be crossing the supervisory borders when there is a High Court in Kiambu.
2. Order 40 Rule 1 of the Civil Procedure Rules provides that:

Where in any suit it is proved by affidavit or otherwise—

(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or

(b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,

the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.

1. Order 40 of the Civil Procedure Rules in one of provisions of the law that are applicable in succession proceedings by dint of Rule 63 of the Probate and Administration Rules. To succeed in obtaining an injunction, interlocutory or otherwise, a party must satisfy the court that he/she has a prima facie case, demonstrate he/she stands to suffer irreparable injury of the injunction is not granted and allay any doubts as to suffering irreparable harm by showing that the balance of convenience tilts in his/her favour.
2. I have considered this matter. The Applicant has claimed that she and her children and beneficiaries of the estate of the deceased and that they were left out in the succession proceedings where the grant was issued, confirmed and the estate distributed. She is claiming that this was done in a court that lacks jurisdiction. The Respondent has not provided any evidence controverting these allegations. It is my considered view that to be locked out of an inheritance before undergoing due process of the law to determine if you deserve a share of the estate or not is prejudicial to the party so claiming.
3. I am persuaded that the Applicant has established a prima facie case. She and her children stand to suffer injury if they were to be denied their rights to inherit part of the estate if they provide evidence to show that they are beneficiaries of the estate of the deceased.
4. In my considered view therefore, despite the Applicant approaching the court by way of Notice of Motion, this court is empowered to invoke its inherent jurisdiction under Rule 73 of the Probate and Administration Rules and protect the Applicant and her children to allow them time to argue their case.
5. Some of the orders she is seeking cannot issue as shall be shown below. Consequently, the PO and the Notice of Motion fails and succeeds in part as shall be shown below:
6. This matter is not res judicata.
7. This Honourable Court (Kajiado High Court) is seized with jurisdiction to determine this matter, other than the exercise of its supervisory jurisdiction over the Kiambu Chief Magistrate’s Court or revocation of Grant issued by the latter court.
8. Prayers 2, 5, 6, 7, 8, 9, of the Notice of Motion dated 19^th June 2024 are declined pending the time when this Honourable Court shall have full control of these succession proceedings.
9. Prayers 3 and 4 of the above Notice of Motion are hereby granted pending full hearing and determination of this dispute.
10. Each party shall bear own costs for this application.
11. Parties are at liberty to take appropriate action to bring these proceeding on track.
12. Orders shall issue accordingly.

Dated, signed and delivered this 24^th day of January 2025