In re Estate of the Late Chemisto Sawe Suter (Miscellaneous Succession Cause E005 of 2021) [2024] KEHC 16334 (KLR) (20 December 2024) (Ruling)
Neutral citation:
[2024] KEHC 16334 (KLR)
Republic of Kenya
Miscellaneous Succession Cause E005 of 2021
JRA Wananda, J
December 20, 2024
IN THE MATTER OF THE ESTATE OF THE LATE CHEMISTO SAWE SUTER
In the matter of
Jane Jepkosgei Chepkiyeng
Applicant
Ruling
1.As was stated in the case The Owners of Motor Vessel "Lilian S" vs. Caltex Oil (K) Ltd [1989] KLR 1, it would be an act in vain for a Court to hear and determine a matter if it lacks the jurisdiction to do so. In the said case, the Court of Appeal guided as follows:
2.Similarly, in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held as follows:
3.Coming back to this matter, the Application before Court for determination is the Summons dated 1/03/2021 and filed on 10/03/2021 through Messrs Ledisha J.K. Kitttony & Co. Advocates. It seeks prayers as follows:i.The Grant of Letters of Administration made to Jackson Kimutai Suter on the 6th October 2017 by the Eld CMCC No. P/A 226 of 2017 be revoked and/or annulled.ii.The costs of this Application be provided for.
4.The Application is expressed to be brought under Rule 44 of the Probate and Administration Rules and is premised on the grounds stated on the face thereof. It is then supported by the Affidavit sworn by the Applicant, Jane Jepkosgei Chepkiyeng.
5.In the Affidavit, the Applicant deponed that she is the daughter-in-law of the deceased, Chemisto Sawe Suter, by virtue of her marriage to the late Wilson Cheruiyot Chemisto, one of the sons of the deceased. She deponed that a Grant of Letters of Administration over the estate of the deceased was made to the Petitioner-Administrator herein, Jackson Kimutai Suter, on 6/10/2017 and confirmed on 29/05/2018 and that the same was obtained by making of false statement and/or concealment of material facts from the Court. She urged that the Petitioner misrepresented to the Court that the deceased was survived by only one son and thus excluding the Applicant’s husband, that she came to learn that the Petitioner had obtained the Grant when she was served with the Application for Confirmation of the Grant. She deponed further that she never executed any consent to authorize the Petition and that the Petitioner has fraudulently proceeded to dispose of the parcel of land known as Irong Korkitony/85 owned by the deceased, to a stranger, in total disregard to the Applicant’s husband’s share.
6.As it will be noted above, the Application does not, on the face of it, disclose the identity of the Respondent. However, from the grounds thereof and the contents of the said Affidavit, it is clear that the said Chemisto Sawe Suter, referred to as the Petitioner-Administrator, is the person targeted herein. For this reason, I will refer to the said Chemisto Sawe Suter as the Respondent.
7.When the Respondent was served, through Messrs Bundotich Korir & Co., he filed a Notice of Preliminary Objection dated 7/07/2021. The basis of the Objection was stated to be simply that the Application is incompetent, incurably defective and defective, among other similarly ambiguous and generalized descriptions. The Respondent then also failed to file Submissions when directed to do so. Under these circumstances, the Court was left with no material to discern or unravel the nature of the Preliminary Objection preferred by the Applicant, and on this ground, vide my Ruling dated 12/04/2024, I dismissed the Preliminary Objection and directed that the substantive Application be set down for hearing.
8.I note that subsequently, the Applicant filed the Application dated 30/04/2024 seeking leave to introduce further documents said to have been inadvertently omitted in her initial Affidavit. I notice further that the Application was placed before the duty Judge, my brother Nyakundi J, on 8/05/2024, and who granted the same as prayed.
9.On the part of the Respondent, since I have still not come across any Replying Affidavit from him in opposition to the Application, I presume that he filed none.
Hearing of the Application
10.It was then agreed that the Application be canvassed by way of written Submissions. The Applicant filed her Submissions on 19/07/2024 while the Respondent filed on 20/07/2024.
Applicant’s Submissions
11.In her Submissions, Counsel for the Applicant urged that the Applicant has, in her Affidavit, exhibited documents demonstrating that her late husband is a brother to the Respondent (including a letter from the Chief), the altercations she has had with the Respondent over other parcels of land hence the reasons for the Respondent’s action of disinheriting the Applicant and that the Respondent has maliciously and fraudulently purported to dispose of the property known as Irong/Korkitony/85. She submitted that the Applicant’s late husband also left behind a daughter. In regard to revocation of the Grant, she cited Section 76 of the Law of Succession Act and several authorities. Counsel then recounted the matters already set out in the Applicant’s Affidavits and which, for this reason, I will not again recite.
Respondent’s Submissions
12.In his Submissions, Counsel for the Respondent submitted that before delving into the merits of the Application, the Court has to be satisfied whether the Application is competent and whether the Court is seized with jurisdiction to grant the orders sought. He cited the case of The Owners of Motor Vessel “S” (supra). He also submitted that the issue of jurisdiction can be raised at any stage of the proceedings and for this, he cited the case of Ali Oshan v Mrs Catherine Kaswii Nyiha and Others, Misc. Civil Application No. 525 of 2022. He then cited Section 48(1) of the Magistrate’s Court Act which, he submitted, was amended by the enactment of the Magistrate’s Court Act, No. 26 of 2015 and urged that Section 23 of the new Act repealed the said Section 48(1) and substituted it with a new sub-Section which accorded jurisdiction to Magistrates to deal with Applications under Section 76 of the Law of Succession Act for revocation or annulment of Grants. He cited various authorities.
13.According to Counsel therefore, the Applicant has not properly approached the Court as the orders sought are substantive in nature and cannot be granted through a Miscellaneous Application and that as such, the Court lacks jurisdiction to entertain the Application. According to him, the Applicant ought to have either applied for Review or for setting aside of the Magistrate’s orders by applying for the same before the same Magistrate who granted the orders. He cited Article 165(3)(c) and (e) on the jurisdiction of the High Court and submitted that where there is a clear procedure for redress for any particular grievance prescribed, that procedure should strictly be followed. He again cited several authorities.
Determination
14.The Grant of Letters of Administration and the Certificate of Confirmation of Grant that this High Court is being asked to revoke or annul were issued by the Magistrates in the year 2017 and 2018, respectively. In opposing the Application, the Respondent has taken the position that the Application is improperly before this Court by reason that it is the same Magistrate’s Court that issued the Grant and confirmed it that retains the jurisdiction to revoke or annul it. On her part, the Applicant legal team, in its wisdom, chose to totally steer clear of responding to this challenge.
15.On the issue of the High Court being asked to revoke a Grant issued by the Magistrate’s Court, I cite the following statements made by W. Musyoka J in the case of Re Estate of Charles Boi (Deceased) [2020] eKLR
16.Similarly, Mrima J in the case of Turfena Anyango Owuor & another v Mary Akinyi Dengo [2018] eKLR, stated as follows:
17.I fully share and associate myself with the above sentiments which have also been reiterated in numerous other authorities from the High Court. The instant Application seeks the revocation or annulment of a Grant of Letters of Administration issued by the Magistrate’s Court on 6/10/2017 and confirmed on 29/05/2018, long after the said amendments on jurisdiction of Magistrate’s Courts had already come into force in the year 2016. I therefore agree with the Respondent that the Application is improperly before this Court since Magistrate’s Courts now possess the jurisdiction to revoke or annul Grants issued by themselves. On this issue, the High Court would only retain Appellate jurisdiction.
Final Orders
18.The upshot of my above findings is that I rule and orders as follows:i.The Summons for Revocation/Annulment of Grant, dated 1/03/2021, and by extension, this entire Miscellaneous Cause is hereby struck out.ii.As the Respondent did not challenge the Application on merits, each party shall bear his/her own costs of the Application.
DELIVERED, DATED AND SIGNED AT ELDORET THIS 20TH DAY OF DECEMBER 2024……………..……..WANANDA J.R. ANUROJUDGEDelivered in the presence of:Ms. Kipseii for the ApplicantMr. Korir for the RespondentCourt Assistant: Brian Kimathi