REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

MISC. APPLICATION No. 18 OF 2019

IN THE MATTER OF THE ESTATE OF TRUFENA MWAVAGA

AND

IN THE MATTER OF MISC. APPLICATION No. 3 OF 2017

AND

IN THE MATTER OF HAMISI SRM SUCCESSION CAUSE No 66 OF 2016

B E T W E E N:

DAVID KHASIEVERA ANUSU............................................................1^ST APPLICANT

MARY AMUGOTSO KHASIEVERA.................................................2^ND APPLICANT

DORIS JESANG......................................................................................3^RD APPLICANT

VERSUS

EVANS KHASIEVERA ANUSU................................................................RESPONDENT

R U L I N G

1. The Court has before it an Application dated 6^th November 2019 and filed on 8^th November 2019 brought “under Section 18 of the Civil Procedure Act 2010 and all enabling Provisions of the Law”, seeking the following Orders:

“1. THAT this Honourable Court be pleased to transfer KAKAMEGA MISC. APPLICATION NO. 3 of 2017 to KAKAMEGA HIGH COURT, FAMILY AND PROBATE DIVISION for amendment of orders issues on 14^th March 2017 by Honourable Justice J. Njagi.

2. THAT costs of this application be provided for.”.

2. The Application is supported by the Affidavit of the Applicant,  Musa M’Mbwana Nandwa and the Grounds which appear on the face of the Application.  They are:

a) THAT this Honourable Court issued orders on 14^th March 2017 vide KAKAMEGA HC. MISC. APPLICATION NO. 3 OF 2017.

b) THAT the above matter was thereafter transferred to Hamisi Senior Resident magistrate’s Court for consolidation with Hamisi Succession Cause No. 66 of 2016 and determination of the same.

c) THAT there is a typographical error on the extracted orders issued at paragraph (c) by indicating LAND PARCEL NO. BUTSOTSO/SHIKOTI/650 instead of LAND PARCEL NO. BUTSOTSO/SHIKOTI/6650.

d) THAT error has caused Land Parcel No. LAND PARCEL NO. BUTSOTSO/SHIKOTI/650 to be restricted which parcel does not comprise deceased’s estate.

e) THAT it is therefore prudent that this KAKAMEGA HC. MISC. APPLICATION NO. 3 OF 2017 which was transferred to Hamisi Senior Resident Magistrate’s Court be transferred to Kakamega High Court Family and Probate Division for amendment of the Orders issued on 14^th March 2017.

3. In his Supporting Affidavit the Applicant asserts that he is an Advocate of the High Court with conduct of this Matter.  He sets out clearly that he has read and understood the Order of the Court made in Kakamega High Court Misc. No. 3 of 2017.  He says:

1. “THAT I am An Advocate of the Honourable High Court of Kenya having conduct of this matter for and on behalf of the applicants.

2. THAT I know of my own knowledge that KAKAMEGA HC. MISC. APPL. NO. 3 OF 2017 was entertained by KAKAMEGA HIGH COURT FAMILY & PROBATE DIVISION where orders were made that the same be transferred and entertained by subordinate Court with pecuniary jurisdiction to entertain it.

3. THAT I know of my own knowledge that before transferring KAKAMEGA HC. MISC. APPL. NO. 3 OF 2017 to Hamisi Senior Resident Magistrate’s Court, this Honourable Court issued orders on 14^th March 2017.

4. The Supporting Affidavit goes on the set out the arguments why the File which has been transferred to the Lower Court should be returned to the High Court.  It should be noted that the Application is not made in the file containing the Order, namely Misc App 3 of 2017  but is made by opening an entirely new file namely Misc Succession 18 of 2019.  The Affidavit goes on to explain the Application, it states:

4. THAT the said order has typographical error on the extracted orders issued at paragraph (c) by indicating LAND PARCEL NO. BUTSOTSO/SHIKOTI/650 instead of LAND PARCEL NO. BUTSOTSO/SHIKOTI/6650 (annexed hereto and marked MMN-1 is a copy of the Order).

5. THAT the error has caused Land Parcel No. LAND PARCEL NO. BUTSOTSO/SHIKOTI/650 to be restricted which parcel does not form part of the deceased’s estate (annexed hereto and marked MMN-2 (a) and 2 (b) are copies of the official searches).

6. THAT it will be in the interest of justice if KAKAMEGA HC. MISC. APPLICATION NO. 3 OF 2017 file be transferred back to the High Court, Family and Probate Division for amendment of the Orders issued on 14^th March 2017 and to enable Land Registrar lift restriction from Land Parcel No. BUTSOTSO/SHIKOTI/650.

5. Exhibited to the Affidavit as MMN-1 is an Order made by Justice Njagi on 14^th March 2017 in relation to the Application dated 2^nd March 2017.

6. The Respondent, EVANS KHASIEVERA ANUSU has filed a Replying Affidavit.  The Deponent is opposing the Application on points of law as advised by his Client.  He would also like to cross-examine the Deponent of the Supporting Affidavit   At paragraph 2 he states; “THAT the subject application has been brought to my attention by my Lawyer who has advised me that according to the law, all Probate and Administration matters are governed by the Law of Succession Act Cap 160 Laws of Kenya and the Probate and Administration Rules and that by chosing to bring the application pursuant to Section 18 of the CPA 2010, the Applicants have chosen to abuse the process of the Court and by this conduct, have denied the Court the legal authority to exercise the discretion sought in their favour which cannot be exercised on the basis of wrong provisions of the law.”.  He also raises a further point of law in relation to the Advocate with conduct swearing an affidavit within the litigation.  He repeats that the matter “…was transferred to Hamisi Principal Magistrate Court for determination and since Court has all the powers granted by the High Court in its order of transfer to dispose of any pending issue and therefore it is not called for to delay the hearing before Hamisi Court on the basis of this application which is obviously aimed at obstructing justice.”.  The Respondent believes that the application raises highly contentious issues.

7. The answer to this Application lies in the history of this litigation.  The original or first file was opened by a Petition for Letters of Administration for the Estate of Tufena Mwavanga (Deceased).  The Petitioner was the First Respondent to this Application.  The Applicants were named as beneficiaries.  By reason of an Application filed in a different High Court File, namely, Succession Cause No. 3 of 2017.  That Application was brought to prevent the Respondent from alleged intermeddling in the Estate.  There was also an application for revocation of the Letters of Administration granted to Evans Khasievera Anusu. On 14^th March 2017 Hon Mr Justice Njagi made an order of inhibition/restriction against the listed properties.  Those were:

(a) TIRIKI/CHEPTULU/886

(b) TIRIKI/CHEPTULU/764

(c) BUTSOTSO/SHIKOTI/650

(d) BUTSOTSO/SHIKOTI/17198

That order was made in March 2017.  The Summons for revocation of Grant were then filed by the Respondent herein on 17^th May 2017.  For reasons that are unclear the matter proceeded in the High Court instead of the original Court being Hamisi SRM’s Court.  That resulted in a Preliminary Objection and a Response (25^th May 2017), to the effect that the High Court lacked jurisdiction to hear the matter since Section 23 of the Magistrate’s Court Act 2015 which removed the jurisdiction from the High Court to the Magistrates’ Court.  Sections 23 and  of the Magistrate’s Court provide:

“23. The Law of Succession Act is amended by repealing section 48(1) and substituting therefor the following new subsection –

(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.

24. Section 49 of the Law of Succession Act is amended –

(a) By deleting the words “Resident Magistrate” and substituting therefore the words “Magistrate’s Court”; and

(b) By deleting the words “one hundred thousand shillings” and substituting therefor the words “the pecuniary limits set out in section 7(1) of the Magistrates’ Courts Act, 2015.

8. As a consequence, of those amendments the Magistrates’ Court had the necessary and requisite jurisdiction to hear and determine all aspects of this dispute.  However, for reasons that are not clear, in Misc Succession Application No. 3of 2017 the Lower Court File (Succession Cause No. 66 of 2016) was called for by an Order made on 22^nd October 2018.

9. However, on 2^nd May 2019 on the Learned Presiding Judge Hon Mr Justice Musyoka Ordered as follows:

“1. That he magistrate’s court now has jurisdiction to revoke grants that it has power to make.

2. THAT I hereby direct that the application herein dated 2.3.2017 be heard by the Principal Magistrate’s court at Hamisi in Hamisi SRMCSC NO. 66 OF 2016.

3. THAT I further direct that the Misc File Kakamega HC Misc Cause No. 3 of 2017 be consolidated with Hamisi SRMCSC NO 66 OF 2016, HAMISI SRMSC to be the lead file.  Both files be returned to the Court in Hamisi.  The Files were duly sent to Hamisi.

10. Thereafter, the Application now before the Court was filed on 8^th February 2018 for amendment (review) of an order made almost 12 months earlier.  In the circumstances, when the Application came before the Court as currently constituted, it was clear that this was a dispute with a history and as a consequence the Lower Court File (Success Cause 66 of 2016) had to be called for from Hamisi again.  The Files were received on 17^th February 2021.  It was only then, that it became clear that the Succession File (P&A 66 of 2016) and the Misc Application File (No. 3 of 2017)  had been consolidated and returned to the Principal Magistrate’s Court in Hamisi for the Principal Magistrate to hear and determine.

(e) In the meantime, in the Succession File there was an application for discharge of the Order of the Order of 14^th March 2017 because the reference to BUTSOTSO/SHIKOTI/650 should have been reference to BUTSOTSO/SHIKOTI/6650 and the owner of BUTSOTSO/SHIKOTI/650 was prejudiced by the Order.  There is an extant application to that effect in the Hamisi File, filed on 19^th July 2019 by a ISAAC MURASI ANDALA for the removal of the Caution.  By reason of Section 23  of the  Magistrates’ Court Act No. 26 of 2015 the Hamisi Magistrate Court was both seized of the matter and also having the appropriate jurisdiction to hear and determine it.

11. In the circumstances, the Application before the High Court is both superfluous and an abuse of the process of the Court.  This Court does not have jurisdiction to make any orders.  It is also clear that when the Order for restriction was granted this Court did not have jurisdiction to make that Order, it is therefore extrapolated that this Court does not have jurisdiction to review and/or amend that Order.  From the foregoing, it is clear the Parties were aware of the issue as long ago as 2017 and then again on 2^nd May 2019.  In Misc 3 of 2017 Hon Mr Justice Musyoka Ruled that the Magistrate’s Court now has jurisdiction to revoke grant that it has power to make.  It therefore follows that the Magistrates’ Court has the requisite jurisdiction to hear and determine all issues that were hitherto the preserve of the High Court including reviewing and amending Orders.

12. For those reasons, it is Ordered and Directed that:

(1) Application is dismissed.

(2) Each Party to pay his/her own costs

(3) This File shall be consolidated with Hamisi Senior Resident Magistrate’s Court Succession Cause No. 66 of 2016 and Misc Succession Application No. 3 of 2017.  SRMCSC No. 66 of 2016 shall be the lead file.

(4) The Head of Station at Hamisi SRM’s Court is directed to take conduct of this File and continue as such until final resolution and determination of the dispute.

(5) No further applications shall be made to the High Court in relation to the Estate of TRUFENA MWAVAGA (DECD).

Order accordingly,

FARAH S. AMIN

JUDGE

DELIVERED SIGNED AND DATED, THIS THE 22^ND DAY OF MARCH 2022 AT KAKAMEGA HIGH COURT AND VIRTUALLY

In the Presence of:

Court Administrator:  Clement Okoit

Applicant:  Ms Eroba

Respondent.