1.The applicants filed application dated 11.12.23 seeking:
1. ……………………………………..spent.
2. ……………………………………...spent.
3. That this Honourable court be pleased to order stay of proceedings in Kisii CMC Succession Cause No. E591v of 2021 -Estate of David Mokaya Bosire to the High Court at Nyamira for trial and disposal
4. That such directions and orders be given by this Court as will meet the ends of justice.
5. That costs of the application be provided for.
The application is based on the grounds on the face of it and the supporting affidavit of Prof. Rachel Kemunto Gesami, Dr. Jane Nyangau Omae, Josephine Nyaboke Mokaya and Pamela Monyenche Omweno (the 1st d to 4th applicants herein).
2. It is the applicant’s case is that the Estate of the deceased is comprised of land parcel No. East /Kitutu /Bonyamondo 1/275 (12.5 acres ) located at Manga within Nyamira County of which 5 acres has mature tea bushes and Kshs 1.2 Million held at Kenya Commercial bank account no. 149007217 that respondent secretly instituted the matter in the chief magistrate's court Kisii without involving herself and her sisters/co -applicants namely, Dr. Jane Nyangau Omae, Josephine Nyaboke Mokaya and Pamela Monyenche Omweno (the 2nd to 4th applicants herein ) as per annexed copy of petition for letters of administration’’(RKG -1’’). The same was followed by a grant of letters of administration issued on 23.6.2022 and confirmed on 8.12.22. (RKG -2 and RKG -3). Further that at the time of filling succession the petitioners / respondents declared the value of the estate at Kshs. 500,000/= yet the property is valued at Kshs 69,382/= (as per the valuation report RGK -4) which is beyond the jurisdiction of the chief magistrate’s court. Also that they were shocked to discover that the respondents forged their signatures in the consent filed in the lower court with a view to disinherit them. 3. They now seek transfer of this case to Nyamira High court for trial and disposal. They deponed that they are being prejudiced by the pendency of the matter in the lower court and that no prejudice would be occasioned by the respondents if the matter is transferred as prayed.
3. The applicants also filed a preliminary objection dated 31.1.24. saying that the replying affidavit filed by Peter Omwansa Orina dated 9.1.24 offends order 19 rules 3 of CPR as read with Rule 13 of the probate and administration rules in that it contains matters that are vexatious, scandalous, oppressive, argumentative and ought to strike out under order 19 rule 6 of the CPR for the reasons;
a. That paragraph 7 questions the capability of the High Court of Kenya at Nyamira
b. Paragraphs 7 & 8 accuse the 1st defendant of unethical conduct if interference with the judicial officers without any evidence.
c. The entire affidavit as drawn is scandalous as the language used in it is unethical antagonizing, abusive unprofessional and unfit for court pleadings.
4. The respondents filed replying affidavit of Peter Omwansa Orina (1st respondent), it is the case of respondents that the applicants have demonstrated extreme disrespect and disgrace to the family and to the male members of the family of the deceased and have chosen the path of confrontation and failed to consider that the certificate of confirmation of grant shows all family members save for two who were inadvertently left out. Further that the application is divisive and an abuse of the process of this court. Also that the valuation report is exaggerated for sinister reasons to oust the succession cause from the jurisdiction of the chief magistrate's court. Further that the Nyamira High court was not fit to hear the case as 1st applicant's husband is the Deputy Governor of Nyamira County.
5. It is also the case of respondents that the chief magistrates have countrywide Jurisdiction and such the choice of Nyamira High Court bespeaks volumes of ill intent on the part of the applicants. Also that the application is a delaying tactic and that the 2nd applicant has come to court with unclean hands as she failed to discharge a loan advanced to her on security of the estate of deceased. The respondents argued that the applicants are domineering and intend to control the estate of the deceased and that they frustrated the mediation process and are baying for their blood. The 1st respondent told this court that all his brothers who are in USA and 3 other sisters who are not parties to this application and wish to participate in these proceedings ought to be allowed to file affidavits in response.
Submissions
6. The applicant submitted that the issues for determination are;
i. Whether the replying affidavit sworn by Peter Omwansa dated 9.1.24 offends Order 19 Rule 3 of the Civil Procedure Rules as read with Rule 63 (1) of the Probate and Administration Rules.
ii. Whether the application dated 18.12.23 should be allowed as prayed.
7. Counsel cited the case of v Mukisa Biscuits manufacturing Ltd vs West End Distributors (1969) EA 696 where it was held that; “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
8. Also that the preliminary objection raises the issue of whether the replying affidavit of Peter Omwansa Orina transgress the requirements spelt out under Order 19 Rule 3 of the Civil Procedure Rules and is rightfully before court.
9. Rule “63 (1) of the probate and Administration provides that ‘’ Save as in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders 5 Rule 2 to 34and orders 11,16,19,26,40,45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.”
10. Further that the law applicable to affidavits is order 19 Rule 3 of the Civil Procedure Rules which provides that “an affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove.”
11. Also that order 19 Rule 6 allows the court to strike out from an affidavit any matter that is scandalous, irrelevant or oppressive. Counsel took issue with paragraph 7 and 8 of the said replying affidavit. Counsel continued to submit that the allegations of the said paragraphs are baseless and questions integrity of Nyamira High Court and cannot be let to remain in the affidavit.
12. Counsel also submitted that paragraphs 2, 9 and 12 of the affidavit are scandalous and has improper language. The case of Mbugua & Mbugua Advocate v Kenindia Assurance Co. Ltd (2014) eKR and Kiplagate Kotut v Rose Jebor KIpngok (2020) eKLR were paragraphs which were scandalous, oppressive and offensive to the adverse party were struck out.
13. On whether the application dated 18.12.23 should be allowed. Counsel submitted that they seek transfer of the matter to Nyamira High court for hearing and determination as the value of the subject matter exceeds the pecuniary jurisdiction of the Chief Magistrates. Also that the property which forms part of the estate herein is situated in Nyamira County.
14. On the issue of transfer of suits, they submitted that section 18 of the Civil Procedure Act provides for transfer of suis and that the locus classicus on his issue is the case of Kagenyi vs Musiramo and another (1968) EA 3 in which the court held that balance of convenience, questions of expense, interest as of justice and possibilities of undue hardship must be taken into consideration before making orders for transfer of suits. Also that in the case of Abraham Mwangi Wamigwi vs Simon Mbiriri Wanjiku & Another (2012) eKLR and in Wamathu Gichoya v Mary Wainoi Magu(2015) Justice Odunga held that the power to transfer a case to High court for hearing may only be exercised if the court before which it is filed is a court vested with competent jurisdiction to try and dispose the matter, in other words, if the suit filed is incompetent, the High Court lacks Jurisdiction to effect a transfer. Further that lack of jurisdiction can never be a ground for transfer of suit as was held in the Oceanic Towers Limited vs Husseini Builders Limited (2021) eKLR. Also the case of Boniface Waweru Mbiyu vs Mary Njeri & Another (2005) eKLR where it was held; “Whenever a matter is filed before a Court lacking jurisdiction, the professional error there committed is a fundamental one, which cannot be excused as an ordinary mistake by counsel and which should not be held to prejudice the client. As between the advocate and his or her client, such a professional error could very well lead to claims in tort. As for the Court, the matter thus filed is so defective as to be a nullity. It is incompetent and void in law; and therefore it is not a motion or suit that can be transferred to any other Court. It is the duty of the Court or tribunal before which such matter is first brought to declare its status as a nullity; and it follows that such matter has no capacity to be transferred to any other Court”.
15. On the preliminary objection counsel submitted that the same did not meet the threshold laid down in the Mukisa Biscuit Case (Supra) and that the applicants were granted leave to file a replying affidavit but proceeded to file a preliminary objection.
It was also submitted that the applicants are wealthy and able to access justice in any part of the Country without hardship, that the land is situated at the Nyamiras -Kisii Border and that Manga is nearer Kisiis than Nyamira. Also that the husband to 1st respondent is the Deputy Governor Nyamiras County and she could well have some influence and that the interest of Justice demands that the matter be finalized in Kisii.
16. Applicants also cited section 18 (1) of the Civil Procedure Act which provides that ‘’
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”
17. I have carefully considered the application, the supporting affidavits, the replying affidavit and the cited case law.
The issues for determination are as follows ;
a) Whether the language used paragraphs 7.8.9.and 12 of the supporting affidavit are scandalous, oppressive,
b) Whether the Kisii Chief Magistrates court has Pecuniary jurisdiction to hear and determine that application as land Parcel No. East /Kitutu /Bonyamondo 1/275 which is the subject matter of the succession cause in the lower court is situated at Manga which is in Nyamira county,
c) Whether Kisii High Court has territorial jurisdiction to hear and determine succession cause of the deceased herein.
d) Whether the suit should be transferred to Nyamira High court.
Language of the replying affidavit dated 9.1.24
18. The applicants objected to the language used in paragraphs 7 & 8 the said affidavit of Peter Omwansa Orina for being scandalous, antagonizing, abusive, unprofessional and unfit for court pleading and asked the court to strike it out. The respondents did not respond to this issue. I have seen the said affidavit paragraph 7 states “I verily aver that the High Court of Kenya at Nyamira is unsuitable to try this matter as my sister professor Racheal Gesami’s husband is the Deputy Governor and I know she will interference with determination of this matter and I verily aver that I know she will influence the decisions thereat.”
Paragraph 8 “I verily aver that the Chief Magistrates Court has country wide jurisdiction and that the choice of specifically the High court of Kenya at Nyamira by the applicants bespeaks volumes of their ill. Intent. Even before looking at the preliminary objection this court takes exception to the callous, scandalous and gender biased language used in the said replying affidavit especially paragraphs 2, 7 and 8 of the affidavit. Paragraph 7 which questions the integrity of the Judge sitting at Nyamira, paragraph 2 says that the applicants disrespect the “male” family members while the affidavit also indicates that some female members are also on their side. The Constitution of Kenya and the law of succession Act does not discriminate gender of children of a deceased. Paragraph 8 imputes ill intention on the part of applicants by seeking transfer of the case and yet no particulars have been given. I am more surprised as this affidavit was drawn by an advocate of the High court of Kenya and it borders on conduct unbecoming of an advocate. The foregoing paragraphs offend the provisions of order 19 Rule 3 of the Civil Procedure Rules. I proceed to strike out paragraph 2, 7 and 8 of the replying affidavit of Peter Omwansa Orina for being scandalous , abusive and gender biased .
Magistrates jurisdiction
19. On whether the chief magistrate has jurisdiction to deal with the succession matter herein. The Applicants argued that the value of the estate of the deceased was valued at Kshs 69,342,000/= as per the valuation report filed herein. The respondents disputed and sought leave to file a valuation report but same was not filed. The value of the property is thus not contested. Counsel for applicants cited Section 7 (1) of the Civil Procedure Act provides that; “A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—
(a) twenty million shillings, where the court is presided over by a chief magistrate; I have seen
Section 48(1) of the Law of succession Act provides that ;’’ –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, 2015.”
I have seen the P & A forms 5, 12 and 57 of the cause herein filed in the lower court and annexed to the affidavit of 1st applicants which indicates that the value of the estate is Kshs 500,000/=. It is therefore clear to me that the respondents were economical with the truth in the said succession cause and misled the Chief Magistrate to proceed with a case which was beyond her pecuniary jurisdiction which is is Kshs 20,000,000/=.
Are the proceedings before the Chief Magistrate proper?
20.. The proceedings before the Chief Magistrate in succession cause no. E591 of 2021 are thus a nullity. Section 76 of the Law of succession Act provides for revocation of grants to wit; A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a) that the proceedings to obtain the grant were defective in substance;
(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
It is trite law that jurisdiction is everything and without it the court must pen down as was held in the celebrated case of Lilian S vessel (Supra). I proceed to apply Section 76 of the law of succession Act suo moto and I revoke the grant of letters of administration dated 23.6.23 issued to peter Omwansa Orina and Steve Nyabwari Mokaya and the subsequently confirmed grant dated 8.1.22. I order that the said the grants be recalled.
Whether Kisii High Court has territorial jurisdiction to hear and determine succession cause of the deceased herein.
21. On whether Nyamira court has jurisdiction to determine the Succession cause herein, this court has already struck out the portions of the affidavit which were citing their main reasons for insisting on hearing in Kisii and revoked the grant. However, it is imperative that this court deals with the issue of Jurisdiction between Kisii and Nyamira High courts herein applicant said that the land parcel No. East /Kitutu /Bonyamondo 1/275 which is the only immovable asset of the deceased is located in Nyamira County, the chiefs letter dated 31.8.21 also indicates that deceased hailed from Manga Sub -county. The respondents prefer that the cause be heard in Kisii court. In the spirit of access to justice under Article 48 of the Constitution of Kenya, the judiciary aims to establish courts in all the 47 counties and all the sub -counties in Kenya. Nyamira is a county with a duly established High court and a sitting Judge who administratively and for good order has jurisdiction to deal with all matter emanating from Nyamira County. All matters from Nyamira county are currently filed in Nyamira court unless there are exceptional circumstances warranting a departure from that requirement. It is important that I state categorically that the estate of the deceased herein squarely falls within the jurisdiction of Nyamira High court.
On whether the suit can be transferred.
22. The grant and the sub sequential orders having been revoked for want of jurisdiction and so there remains nothing to be transferred. The prayer for transfer thus fails.
23. In the upshot I find that;
a. The proceedings in Kisii Chief Magistrates Court succession cause no. E591 of 2021 are hereby declared to be a nullity for want of pecuniary Jurisdiction.
b. The grant of letters of administration dated 23.6.23 issued to Omwansa Orina and Steve Nyabwari Mokaya and subsequently confirmed on 8.1.22 are hereby revoked.
c. Consequently, I order that the grants be recalled.
d. The estate of the deceased herein falls within the Jurisdiction of Nyamira Court.
e. This being a family matter each party will bear its own costs.
DELIVERED VIRTUALLY VIA TEAMS PLATFORM
Miss Maina for applicants
N/A for the objectors
Court Assistant - Oigo
1. ……………………………………..spent.
2. ……………………………………...spent.
3. That this Honourable court be pleased to order stay of proceedings in Kisii CMC Succession Cause No. E591v of 2021 -Estate of David Mokaya Bosire to the High Court at Nyamira for trial and disposal
4. That such directions and orders be given by this Court as will meet the ends of justice.
5. That costs of the application be provided for.
The application is based on the grounds on the face of it and the supporting affidavit of Prof. Rachel Kemunto Gesami, Dr. Jane Nyangau Omae, Josephine Nyaboke Mokaya and Pamela Monyenche Omweno (the 1st d to 4th applicants herein).
2. It is the applicant’s case is that the Estate of the deceased is comprised of land parcel No. East /Kitutu /Bonyamondo 1/275 (12.5 acres ) located at Manga within Nyamira County of which 5 acres has mature tea bushes and Kshs 1.2 Million held at Kenya Commercial bank account no. 149007217 that respondent secretly instituted the matter in the chief magistrate's court Kisii without involving herself and her sisters/co -applicants namely, Dr. Jane Nyangau Omae, Josephine Nyaboke Mokaya and Pamela Monyenche Omweno (the 2nd to 4th applicants herein ) as per annexed copy of petition for letters of administration’’(RKG -1’’). The same was followed by a grant of letters of administration issued on 23.6.2022 and confirmed on 8.12.22. (RKG -2 and RKG -3). Further that at the time of filling succession the petitioners / respondents declared the value of the estate at Kshs. 500,000/= yet the property is valued at Kshs 69,382/= (as per the valuation report RGK -4) which is beyond the jurisdiction of the chief magistrate’s court. Also that they were shocked to discover that the respondents forged their signatures in the consent filed in the lower court with a view to disinherit them. 3. They now seek transfer of this case to Nyamira High court for trial and disposal. They deponed that they are being prejudiced by the pendency of the matter in the lower court and that no prejudice would be occasioned by the respondents if the matter is transferred as prayed.
3. The applicants also filed a preliminary objection dated 31.1.24. saying that the replying affidavit filed by Peter Omwansa Orina dated 9.1.24 offends order 19 rules 3 of CPR as read with Rule 13 of the probate and administration rules in that it contains matters that are vexatious, scandalous, oppressive, argumentative and ought to strike out under order 19 rule 6 of the CPR for the reasons;
a. That paragraph 7 questions the capability of the High Court of Kenya at Nyamira
b. Paragraphs 7 & 8 accuse the 1st defendant of unethical conduct if interference with the judicial officers without any evidence.
c. The entire affidavit as drawn is scandalous as the language used in it is unethical antagonizing, abusive unprofessional and unfit for court pleadings.
4. The respondents filed replying affidavit of Peter Omwansa Orina (1st respondent), it is the case of respondents that the applicants have demonstrated extreme disrespect and disgrace to the family and to the male members of the family of the deceased and have chosen the path of confrontation and failed to consider that the certificate of confirmation of grant shows all family members save for two who were inadvertently left out. Further that the application is divisive and an abuse of the process of this court. Also that the valuation report is exaggerated for sinister reasons to oust the succession cause from the jurisdiction of the chief magistrate's court. Further that the Nyamira High court was not fit to hear the case as 1st applicant's husband is the Deputy Governor of Nyamira County.
5. It is also the case of respondents that the chief magistrates have countrywide Jurisdiction and such the choice of Nyamira High Court bespeaks volumes of ill intent on the part of the applicants. Also that the application is a delaying tactic and that the 2nd applicant has come to court with unclean hands as she failed to discharge a loan advanced to her on security of the estate of deceased. The respondents argued that the applicants are domineering and intend to control the estate of the deceased and that they frustrated the mediation process and are baying for their blood. The 1st respondent told this court that all his brothers who are in USA and 3 other sisters who are not parties to this application and wish to participate in these proceedings ought to be allowed to file affidavits in response.
Submissions
6. The applicant submitted that the issues for determination are;
i. Whether the replying affidavit sworn by Peter Omwansa dated 9.1.24 offends Order 19 Rule 3 of the Civil Procedure Rules as read with Rule 63 (1) of the Probate and Administration Rules.
ii. Whether the application dated 18.12.23 should be allowed as prayed.
7. Counsel cited the case of v Mukisa Biscuits manufacturing Ltd vs West End Distributors (1969) EA 696 where it was held that; “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
8. Also that the preliminary objection raises the issue of whether the replying affidavit of Peter Omwansa Orina transgress the requirements spelt out under Order 19 Rule 3 of the Civil Procedure Rules and is rightfully before court.
9. Rule “63 (1) of the probate and Administration provides that ‘’ Save as in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders 5 Rule 2 to 34and orders 11,16,19,26,40,45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.”
10. Further that the law applicable to affidavits is order 19 Rule 3 of the Civil Procedure Rules which provides that “an affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove.”
11. Also that order 19 Rule 6 allows the court to strike out from an affidavit any matter that is scandalous, irrelevant or oppressive. Counsel took issue with paragraph 7 and 8 of the said replying affidavit. Counsel continued to submit that the allegations of the said paragraphs are baseless and questions integrity of Nyamira High Court and cannot be let to remain in the affidavit.
12. Counsel also submitted that paragraphs 2, 9 and 12 of the affidavit are scandalous and has improper language. The case of Mbugua & Mbugua Advocate v Kenindia Assurance Co. Ltd (2014) eKR and Kiplagate Kotut v Rose Jebor KIpngok (2020) eKLR were paragraphs which were scandalous, oppressive and offensive to the adverse party were struck out.
13. On whether the application dated 18.12.23 should be allowed. Counsel submitted that they seek transfer of the matter to Nyamira High court for hearing and determination as the value of the subject matter exceeds the pecuniary jurisdiction of the Chief Magistrates. Also that the property which forms part of the estate herein is situated in Nyamira County.
14. On the issue of transfer of suits, they submitted that section 18 of the Civil Procedure Act provides for transfer of suis and that the locus classicus on his issue is the case of Kagenyi vs Musiramo and another (1968) EA 3 in which the court held that balance of convenience, questions of expense, interest as of justice and possibilities of undue hardship must be taken into consideration before making orders for transfer of suits. Also that in the case of Abraham Mwangi Wamigwi vs Simon Mbiriri Wanjiku & Another (2012) eKLR and in Wamathu Gichoya v Mary Wainoi Magu(2015) Justice Odunga held that the power to transfer a case to High court for hearing may only be exercised if the court before which it is filed is a court vested with competent jurisdiction to try and dispose the matter, in other words, if the suit filed is incompetent, the High Court lacks Jurisdiction to effect a transfer. Further that lack of jurisdiction can never be a ground for transfer of suit as was held in the Oceanic Towers Limited vs Husseini Builders Limited (2021) eKLR. Also the case of Boniface Waweru Mbiyu vs Mary Njeri & Another (2005) eKLR where it was held; “Whenever a matter is filed before a Court lacking jurisdiction, the professional error there committed is a fundamental one, which cannot be excused as an ordinary mistake by counsel and which should not be held to prejudice the client. As between the advocate and his or her client, such a professional error could very well lead to claims in tort. As for the Court, the matter thus filed is so defective as to be a nullity. It is incompetent and void in law; and therefore it is not a motion or suit that can be transferred to any other Court. It is the duty of the Court or tribunal before which such matter is first brought to declare its status as a nullity; and it follows that such matter has no capacity to be transferred to any other Court”.
15. On the preliminary objection counsel submitted that the same did not meet the threshold laid down in the Mukisa Biscuit Case (Supra) and that the applicants were granted leave to file a replying affidavit but proceeded to file a preliminary objection.
It was also submitted that the applicants are wealthy and able to access justice in any part of the Country without hardship, that the land is situated at the Nyamiras -Kisii Border and that Manga is nearer Kisiis than Nyamira. Also that the husband to 1st respondent is the Deputy Governor Nyamiras County and she could well have some influence and that the interest of Justice demands that the matter be finalized in Kisii.
16. Applicants also cited section 18 (1) of the Civil Procedure Act which provides that ‘’
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”
17. I have carefully considered the application, the supporting affidavits, the replying affidavit and the cited case law.
The issues for determination are as follows ;
a) Whether the language used paragraphs 7.8.9.and 12 of the supporting affidavit are scandalous, oppressive,
b) Whether the Kisii Chief Magistrates court has Pecuniary jurisdiction to hear and determine that application as land Parcel No. East /Kitutu /Bonyamondo 1/275 which is the subject matter of the succession cause in the lower court is situated at Manga which is in Nyamira county,
c) Whether Kisii High Court has territorial jurisdiction to hear and determine succession cause of the deceased herein.
d) Whether the suit should be transferred to Nyamira High court.
Language of the replying affidavit dated 9.1.24
18. The applicants objected to the language used in paragraphs 7 & 8 the said affidavit of Peter Omwansa Orina for being scandalous, antagonizing, abusive, unprofessional and unfit for court pleading and asked the court to strike it out. The respondents did not respond to this issue. I have seen the said affidavit paragraph 7 states “I verily aver that the High Court of Kenya at Nyamira is unsuitable to try this matter as my sister professor Racheal Gesami’s husband is the Deputy Governor and I know she will interference with determination of this matter and I verily aver that I know she will influence the decisions thereat.”
Paragraph 8 “I verily aver that the Chief Magistrates Court has country wide jurisdiction and that the choice of specifically the High court of Kenya at Nyamira by the applicants bespeaks volumes of their ill. Intent. Even before looking at the preliminary objection this court takes exception to the callous, scandalous and gender biased language used in the said replying affidavit especially paragraphs 2, 7 and 8 of the affidavit. Paragraph 7 which questions the integrity of the Judge sitting at Nyamira, paragraph 2 says that the applicants disrespect the “male” family members while the affidavit also indicates that some female members are also on their side. The Constitution of Kenya and the law of succession Act does not discriminate gender of children of a deceased. Paragraph 8 imputes ill intention on the part of applicants by seeking transfer of the case and yet no particulars have been given. I am more surprised as this affidavit was drawn by an advocate of the High court of Kenya and it borders on conduct unbecoming of an advocate. The foregoing paragraphs offend the provisions of order 19 Rule 3 of the Civil Procedure Rules. I proceed to strike out paragraph 2, 7 and 8 of the replying affidavit of Peter Omwansa Orina for being scandalous , abusive and gender biased .
Magistrates jurisdiction
19. On whether the chief magistrate has jurisdiction to deal with the succession matter herein. The Applicants argued that the value of the estate of the deceased was valued at Kshs 69,342,000/= as per the valuation report filed herein. The respondents disputed and sought leave to file a valuation report but same was not filed. The value of the property is thus not contested. Counsel for applicants cited Section 7 (1) of the Civil Procedure Act provides that; “A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—
(a) twenty million shillings, where the court is presided over by a chief magistrate; I have seen
Section 48(1) of the Law of succession Act provides that ;’’ –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, 2015.”
I have seen the P & A forms 5, 12 and 57 of the cause herein filed in the lower court and annexed to the affidavit of 1st applicants which indicates that the value of the estate is Kshs 500,000/=. It is therefore clear to me that the respondents were economical with the truth in the said succession cause and misled the Chief Magistrate to proceed with a case which was beyond her pecuniary jurisdiction which is is Kshs 20,000,000/=.
Are the proceedings before the Chief Magistrate proper?
20.. The proceedings before the Chief Magistrate in succession cause no. E591 of 2021 are thus a nullity. Section 76 of the Law of succession Act provides for revocation of grants to wit; A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a) that the proceedings to obtain the grant were defective in substance;
(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
It is trite law that jurisdiction is everything and without it the court must pen down as was held in the celebrated case of Lilian S vessel (Supra). I proceed to apply Section 76 of the law of succession Act suo moto and I revoke the grant of letters of administration dated 23.6.23 issued to peter Omwansa Orina and Steve Nyabwari Mokaya and the subsequently confirmed grant dated 8.1.22. I order that the said the grants be recalled.
Whether Kisii High Court has territorial jurisdiction to hear and determine succession cause of the deceased herein.
21. On whether Nyamira court has jurisdiction to determine the Succession cause herein, this court has already struck out the portions of the affidavit which were citing their main reasons for insisting on hearing in Kisii and revoked the grant. However, it is imperative that this court deals with the issue of Jurisdiction between Kisii and Nyamira High courts herein applicant said that the land parcel No. East /Kitutu /Bonyamondo 1/275 which is the only immovable asset of the deceased is located in Nyamira County, the chiefs letter dated 31.8.21 also indicates that deceased hailed from Manga Sub -county. The respondents prefer that the cause be heard in Kisii court. In the spirit of access to justice under Article 48 of the Constitution of Kenya, the judiciary aims to establish courts in all the 47 counties and all the sub -counties in Kenya. Nyamira is a county with a duly established High court and a sitting Judge who administratively and for good order has jurisdiction to deal with all matter emanating from Nyamira County. All matters from Nyamira county are currently filed in Nyamira court unless there are exceptional circumstances warranting a departure from that requirement. It is important that I state categorically that the estate of the deceased herein squarely falls within the jurisdiction of Nyamira High court.
On whether the suit can be transferred.
22. The grant and the sub sequential orders having been revoked for want of jurisdiction and so there remains nothing to be transferred. The prayer for transfer thus fails.
23. In the upshot I find that;
a. The proceedings in Kisii Chief Magistrates Court succession cause no. E591 of 2021 are hereby declared to be a nullity for want of pecuniary Jurisdiction.
b. The grant of letters of administration dated 23.6.23 issued to Omwansa Orina and Steve Nyabwari Mokaya and subsequently confirmed on 8.1.22 are hereby revoked.
c. Consequently, I order that the grants be recalled.
d. The estate of the deceased herein falls within the Jurisdiction of Nyamira Court.
e. This being a family matter each party will bear its own costs.
DELIVERED VIRTUALLY VIA TEAMS PLATFORM
Miss Maina for applicants
N/A for the objectors
Court Assistant - Oigo