PIUS MAWEU MUTIE VS STEPHEN MUTUNE MUTIE AND PATRICK KATUU MUTIE

1. Mutie Mulili  Kitonga   died    on  28/2/2014  at  age  100 years. This is   according to    the certificate of death    issued on 13/1/2015.  It says he died at Mumbuni Nziuni, Machakos.
2. There is a letter from the chief Lumbwa   Location, P O Box 01 -  90100 Machakos    dated 12/8/2021   speaking about the beneficiaries   of the estate of the deceased. 
3. Letter of administration of estate   intestate was made to Stephen Mutune Mutie   & Patrick Katuu Mutie on 5/11/2021 in the CM’s Succession Cause No. E264/2021. They filed Summons for confirmation of grant on 10/1/2022 dated 4/1/2022. 
4. An affidavit   of protest   was filed by Paul Maweu   Mutie on 26/1/2022 objecting to confirmation. 
5. He filed    Summons for Revocation     of Grant   dated 12/5/2022. This   was heard    by way of viva voce    evidence. 
6. The learned   trial court found   that the court had territorial jurisdiction as provided    for under Section 49(1) of the Law of Succession Act, that   pecuniary    jurisdiction is a matter   of evidence, which evidence had not been rendered before the court   -  that the property/   land of the deceased   was situated in Makueni   - i.e   LR Konza South Block 5(Konza) 2853 hence the matter was properly   before the court.   That    the omission of some of the sisters (Children of   the deceased) from   the petition was not fatal   to the grant & could be cured   by inclusion.  The trial court followed in the   estate   of Gedraph   Kamau Wanyoike (deceased) [2017] eKLR.  Nelson Ndung’u Kagiri & 2 others vs Leah Waithera   Kagiri & Another [2015] eKLR.
7. That trial court followed Albert Imbuga   Kisigwa    Vs Recho Kavai Kisigwa   Succession Cause   158/2000 - to the effect    that   revocation of a grant is discretionary, to be done judiciously and only on sound grounds -  the learned trial court found that there were no sound grounds   for the annulment   of the grant and dismissed the summons. 
8. The    applicant    was aggrieved by the ruling of the court and filed this appeal -    challenging     the ruling of the trial court on the following grounds; 
-   that    the trial court misinterpreted Section 49(I) of the Law of Succession Act on the meaning of last known place of residence of the deceased person which in this case was Machakos and not Makueni in LR Konza   South/Konza South Block 5/2853.
- that the    court erred   by not finding that it had no jurisdiction to deal   with the matter under Section 49(I) of the Law of Succession Act   and in declining   to include other properties   of the deceased which had been omitted, to this cause. 
9.  Parties   filed submissions through their respective counsel
For the Appellant
10. The court has   reminded   of its duty on appeal and urged to follow Selle vs Associated Motor Boat Co. Ltd & others (1968) EA 123 as discussed in Abok James   Odera t/a A. JOdera & Associates Vs John  Patrick   Machira    t/a Machira Co. Advocates [2013] eKLR
“This being    a first appeal, we are reminded of our primary role   as first appellate court namely, to re-evaluate, re-asses and re-analyse   the extracts on the record and then determine whether the conclusions   reached    by the learned trial judge are to stand    or not   and give reasons either way.”
This is   augmented by the Court of Appeal    holding in Peters vs Sunday Post   Limited [1958] EA  424
11.  The appellant’s counsel summed up   the principles to guide the court on some first appeal vis;
i. That on first    appeal, the court is under a duty to reconsider   and re-evaluate the evidence   on record and draw its   own conclusions.
ii. That   in reconsidering   and re-evaluating    the evidence, the first appellate court   must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and
iii. That   it is not open    to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were   hearing the matter for the first time.
12. On the   grounds for the appeal -  on whether   or not the court had jurisdiction to deal with the matter, it   was submitted that the jurisdiction of magistrate’s court is both    territorial    & pecuniary    as conferred by Section 48    of the Law of Succession Act and Section 7(1) of the magistrate’s   Act, 2015 respectively.
13. For   this, the appellant   cited   Section 49 of the   Law of Succession   Act.
14.  That according    to Section 49(1) of the Law of Succession Act the territorial   jurisdiction of    magistrate’s court is determined by the last known place of residence of the deceased -  except where there is need for temporary grant for purposes of collection of   assets situate   within   the area of jurisdiction & payment of debts. 
15. It is argued   that the trial court could not   have    assumed jurisdiction in any other manner – Owners of Motor Vessel ‘Lillian S’ Vs Caltex Oil (Kenya) Ltd (1989) KLR
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision... Where a court takes it upon itself to exercise a jurisdiction which it does not possess its decision amounts to nothing.”
16. It is   submitted that the appellant availed a valuation report that showed the estate was valued above Ksh.  20 million and hence the trial court at the rank of Senor Resident Magistrate could     not have exercised jurisdiction as that is    the jurisdiction of a Chief Magistrate as per Section 7 (a) of the magistrates Court Act -  See   Janet   Kaphiphe Ouma   & Anor Vs Marie Stopes International (Kenya) Kisumu HCC No.  68 of 2007.
17. That the grant was null and void, that as per Lord Denning    in the case   of Macfoy   vs United    African Ltd (1961) 3 All ER  1169 & 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 to set aside.  It is automatically null and void and 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.”
18. It  was  also  argued  that  the administrator/personal  representative   left  out  the  larger  estate  of  the  deceased named as  Kalama/Nziuni/452 ~   30.83 Acres, Machakos /Konza North Block1/455 ~ 9.63acres  and the   daughters   of  the deceased  and  for  those   reasons - they  were guilty  of  concealment  of  material facts -  and  being   guilty  of  non -disclosure  ought   to have been  subjected  to  “reverse  osmosis”  as per  Gikony0 J  in Re Estate  of  Julius   Ndubi  Javan [2018] eKLR  (deceased)  where he stated;
… in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession case...non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law. 
19. Further   that the representatives were required   by Rule 40(4) of the P&A   Rules to disclose all the beneficiaries   of the deceased    and their respective    shares.
20. That   by leaving   out the daughters of the deceased they were being discriminatory, an act that is prohibited by both the law, the Constitution   Article   27 Section   38 of the Law of Succession Act, and numerous precedents.
21.  It is   also submitted that the appellant did not    consent   to the grant -  hence the court ought to have   found the   grant defective in substance -  Re estate of Ndirangu (deceased) [2021] eKLR, I.e.   Antony Karukenya Njeru Thomas M Njeru [2014]   eKLR where    the grant was revoked because persons of equal    priority did not consent.
For the Respondent
22. It   was submitted that these proceedings were with respect to one single   asset of one Mutie Mulili Kitonga (deceased) and the property   is in Makueni; LR Konza South /Konza South Block   5(Konza) 2853 - that the title    shows   the property is in Makueni
23. It was submitted that the deceased’s last   known place of   residence   was immaterial because the cause    was about the distribution of his estate which is clearly   in Makueni, and that there is no logic to the appellant’s   insistence on the matter   being   filed in Machakos. 
24. It is submitted    that the primary purpose of   a probate court is at Section 48(1) of the Law of Succession Act see Re Estate of Meshack   Nyangi   alias Nyangi Kabuga (deceased) 2019eKLR-  that the purpose   is to facilitate the expeditious     disposition of these matters.
25.  It is    submitted   that the pecuniary jurisdiction is set by the Magistrates’ court Act -  and that the amendment to Section 48 of the    Law of Succession Act -  to include   the pecuniary jurisdiction of magistrate’s courts was intended for this purpose. 
26. Regarding   the two other properties -  it is conceded that these   properties    exist but are in Machakos   County and that the family has never agreed on distribution. 
27. It is submitted    that the entire   family except the appellant has agreed on the distribution of the Makueni property -   and that the appellant is driven   only by greed as he wants   the whole property for himself that omission is not fatal -  see Re   estate of Kitele Kitingu (deceased) [2021] eKLR where the court stated;
“However, revoking   the grant will be too drastic an action as the same has the effect of setting    he parties herein   as well as the beneficiaries back to the drawing   board yet the matter has been pending since 2005.  The court has a discretion whether or not   to order for revocation   of the grant. As the Objector’s grouse has to do with omission of beneficiaries including   himself as well as other assets, the same can be ameliorated by including the names   of beneficiaries in the distribution   schedule   as well as adding   the new assets.  This   then calls for interference with the certificate of confirmation of grant so that the family can file a fresh summons for confirmation of grant.  This route will take care of the concerns of all the parties as it will be a win -  win for them”
28.  I have   carefully considered   the rival submissions and authorities   cited -  it appears to me that two issues stand out for determination - 
1) Whether     the last known   place of residence of a deceased person is the determinant of territorial jurisdiction -  and
2) Whether lack of territorial jurisdiction is fatal to this matter.  
3) Whether the omission of some properties and beneficiaries is fatal to the grant
4) Whether    the trial court had   pecuniary jurisdiction to make the grant
29. The key issue here is   whether or not   the learned   trial magistrate   had the jurisdiction to hear and determine this matter. 
30. The jurisdiction of the magistrate’s court   is set out under;
Section 48 & 49 of the Law of Succession Act     and Rule 7(3) of the P & A   Rules -  the law provides for the place where the matter will be found and the value of the property that falls within each rank of the magistracy.
31. Section   49 of the Law of Succession Act states;
Territorial jurisdiction of Magistrates
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, 2015, have in respect of that estate the jurisdiction conferred by section 48.
Provided that -
(I) 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; (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.
32.   It   clearly provides for the place   of instituting a succession cause as   the area where the deceased    had   his last known   place of residence -
33. This must be read together with Section 48 of the Law of Succession Act which grants   the magistrates    the jurisdiction in succession matters.  It states;
Jurisdiction of Magistrates
(1) 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(1) of the Magistrates' Courts Act, Act (No. 26 of 2015).
(2) For the avoidance of doubt it is hereby declared that the Kadhis' courts shall continue to have and exercise jurisdiction in relation to the estate of a deceased Muslim for the determination of questions relating to inheritance in accordance with Muslim law and of any other question arising under this Act in relation to such estates
34. It means that the magistrate within whose   are, 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 jurisdiction   of the magistrate, has jurisdiction to hear and determine    that matter. See the Court of Appeal   in Josphat Mwania   Muia Vs Loise Atieno Oduk [2020] eKLR.
35. In this case the last place of residence for the deceased    was Machakos.  This is   confirmed   by the letter    from the chief & the certificate of death. 
36. On pecuniary jurisdiction it is correct that   the appellant   did not annex the alleged valuation report in the affidavit   in support of the summons for revocation of the grant.   In the   circumstances there was   nothing    before the trial magistrate   to persuade   him that estate exceeded   his pecuniary   jurisdiction.  However, the record does show that the other   assets were left out - and   these two from the bulk   of the   of the deceased ‘s estate they were almost 40 acres, as     compared to the 10 acres   that is the subject of the cause before the trial court. 
37. It is ingenious for the respondent   to argue    that they are not concerned    with the   assets that were excluded   but are very concerned with the assets in Makueni. 
38. It does not work that way -   the estate of a deceased person   is the total estate   -  you   cannot    have causes all over the place    depending   on where   the assets are. The law determines how the estate of a deceased   person will be dealt with and it has to be through one cause before court (if a magistrate’s court) that has both    territorial   & pecuniary jurisdiction unless for good reason. 
39. In this case - it is evident    that territorial jurisdiction is with the magistrate’s court in Machakos. It would also   appear that   the estate could exceed the pecuniary jurisdiction of the Senior Resident Magistrate   which is 7 million for an estate that may be~ 50 Acres   of land -    it would not   be for inconceivable to conclude    that the value would exceed Ksh.  7 million.  I would    find that the applicants filed the petition in the court without jurisdiction
40.  Regarding   the other issues of  omission  of persons beneficially entitled to the estate and part of the estate, these omissions are  all  admitted. It was argued   that that is not fatal.
41. The omissions become   fatal when it  becomes    clear  that  they were   by  design  -  as is  in this  case.
42. The respondent   omitted the two properties in Machakos    because they intended    to simply deal    with part  of  his estate; they  did  not  involve   the   other beneficiaries  and the  applicant    by design ; and in my view  though  in many cases such    omissions  are  redeemable.   In this case  they appear  to have  been by design   and  that is  not acceptable Under  the Law  of  Succession  Act as they amount to non-disclosure  of  material facts.
43.  The learned  trial  court  had  before     himself  the  certificate   of death,  the  letter  from the chief  clearly  showing   the  last  known  place of  residence   of the deceased; the  registry  saw that  as  well  but   still proceeded  to file  the cause;   -   the   administrators were  represented, and the documents were clear the  primary consideration  where  to  institute  the  cause  was Machakos -   the  representative    were  aware  of  the  existence  of  rest of   the estate   and as  administrators  had  the legal  duty    to put together   the  whole  of  the estate of  the deceased,  all those     beneficially  entitled    and  place  that  before   the  court   with  jurisdiction-
44. The administrators did not do that. The grant is not redeemable. The grant is null and void for want of jurisdiction.
45. The appeal is allowed and the grant is accordingly revoked.
46.  Each party to bear its own costs. 

Dated signed and delivered via CTS this 12th August 2024

Mumbua T. Matheka

Judge