The High Court does not have jurisdiction in probate proceedings to entertain a suit or application relating to declaration of trust
Summary Significance: The instant ruling was on a challenge to the court’s jurisdiction to determine a claim based on trust. The court held that the mandate of the probate court was limited to distribution of the assets, and where a dispute arose on ownership of any asset, then the same should be placed in another forum, and not the succession cause, for litigation and determination. The court further held that section 47 of the Law of Succession Act did not confer jurisdiction to handle disputes and applications that were not provided for under the Law of Succession Act. The court further held that it did not have jurisdiction in the probate proceedings to entertain a suit or application relating to declaration of trust.

In re Estate of Atibu Oronje Asioma (Deceased) (Succession Cause 312 of 2008) [2022] KEHC 11046 (KLR) (22 July 2022) (Ruling)
Neutral citation: [2022] KEHC 11046 (KLR)

High Court at Kakamega
WM Musyoka, J
July 22, 2022
Reported by Kakai Toili
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Jurisdiction - jurisdiction of the High Court - jurisdiction of the High Court in probate proceedings - nature of the jurisdiction of the High Court under the Law of Succession Act - factors to consider in probate and administration matters - whether a probate court could determine a dispute on the ownership of assets of a deceased person - whether the High Court had jurisdiction in probate proceedings to entertain a suit or application relating to declaration of trust - Constitution of Kenya, 2010, article 162(2); Law of Succession Act, Cap 160, section 47; Land Registration Act, 2012, sections 2 and 101; Land Act, 2012, sections 2 and 150; Probate and Administration Rules, 1980, rules 41(3) and 73.
Statutes - interpretation of statutes - interpretation of the Law of Succession Act - nature of creditors in the context of the Law of Succession Act - what was the nature of the concept of continuing trust in the context of the Law of Succession Act - Law of Succession Act, Cap 160, sections 3, 35(1)(b)(2), 36(1)(c)(3), 37, 41, 75A, 82, 83(g)(i) and 84

Brief facts:
The applicants filed summons for revocation of grant and their case was that the deceased was registered as purchaser of the suit properties in trust for them. Regarding one of the suit properties (suit property A), the applicants stated that it belonged to a settler farmer who had employed the deceased. The applicants claimed that they got together to buy that land from the settler, and fronted the deceased to lead them to buy the land. They further claimed that they raised the purchase money and the deceased entered into a sale agreement with the settler farmer and that the land was registered in his name. The other suit property (suit property B) was land that the deceased bought and settled on after he sold his portion.
The instant preliminary objection was to effect that the court lacked jurisdiction to determine a claim based on trust, hence the same should be determined in a separate forum. The preliminary objection was at the behest of the administrator of the deceased’s estate.

Issues:
  1. Whether the High Court had jurisdiction in probate proceedings to entertain a suit or application relating to declaration of trust.
  2. Whether a probate court could determine a dispute on the ownership of assets of a deceased person.
  3. What were the factors to consider in probate and administration matters ?
  4. What was the nature of the jurisdiction of the High Court under the Law of Succession Act ?
  5. What was the nature of creditors in the context of the Law of Succession Act?
  6. What was the nature of the concept of continuing trust in the context of the Law of Succession Act?
Relevant provisions of the law
Law of Succession Act, Cap 160
Section 84 - Personal representatives to act as trustees in certain cases
Where the administration of the estate of a deceased person involves any continuing trusts, whether by way of life interest or for minor beneficiaries or otherwise, the personal representatives shall, unless other trustees have been appointed by a will for the purpose of the trust, be the trustees thereof:
Provided that, where valid polygamous marriages of the deceased person have resulted in the creation of more than one house, the court may at the time of confirmation of the grant, appoint separate trustees of the property passing to each or any of those houses as provided by section 40.

Probate and Administration Rules, 1980
Rule 41 - Hearing of application for confirmation
(3) Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.

Held:
  1. Jurisdiction was a preliminary issue that should be raised at the earliest opportunity, for a court should entertain a matter only where it had jurisdiction, where it had none it should down its tools. To the extent that it raised an issue of jurisdiction, it was a proper preliminary objection.
  2. The probate court was constituted for one sole purpose, distribution of the property of a dead person. The law which governed that area of distribution of assets of a dead person was the Law of Succession Act, cap 160, Laws of Kenya. The preamble stated that it was an Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons, and for purpose connected therewith and incidental thereto.
  3. The central areas of concern in probate and administration were the dead person and his property. With regard to the dead person, what was of importance would be whether there was proof of his death; and, once that was established, the next consideration would be determination of the individuals entitled to the property. If he died testate, having left a valid will, it would be the individuals named as beneficiaries in the will; if he died intestate, without a will, it would be the persons entitled under the applicable law of intestacy. With respect to property, there was only one critical consideration, whether he owned any property. Modern property was subject to registration and whether a person owned a piece of property was evidenced by documents of registration or ownership.
  4. The probate court only distributed assets that were undisputedly owned by the deceased. Assets that were unencumbered or the subject of ownership disputes were not undisputedly owned by the deceased, and were not available for distribution by the court until the encumbrances were removed or the ownership disputes resolved. Property available for distribution was defined in section 3 of Law of Succession Act as the free propriety of the deceased.
  5. The design of the Law of Succession Act was that the mandate of the probate court was limited to distribution of the assets, and where a dispute arose on ownership of any asset, then the same should be placed in another forum, and not the succession cause, for litigation and determination. That was the spirit of rule 41(3) of the Probate and Administration Rules.
  6. There was ample case law to the effect that succession proceedings were not appropriate for determining disputes between the estate and third parties over title to or ownership of assets placed before the court for distribution.
  7. Besides the provisions of the Law of Succession Act and the Probate and Administration Rules, the applicants had to also contend with the Constitution of Kenya, 2010 (Constitution), so far as the jurisdiction of the High Court was concerned, with respect to disputes over title to land and trusts over land related to title to the land.
  8. Article 162(2) of the Constitution envisaged a court with jurisdiction to handle disputes relating to title or ownership of land. Under article 165(5) of the Constitution, it was asserted, in no uncertain terms, that the High Court should not exercise jurisdiction over the matters to be placed under the court contemplated by article, 162(2). The court envisaged in article 162(2) was subsequently established under the Environment and Land Court Act, No 9 of 2011, to handle the disputes stated in article 162(2). The Land Registration Act No 3 of 2012 and the Land Act No 6 of 2012 identified the Environment and Land Court as the court for the purposes of disputes relating to matters touching on land, including registration, which was at the core of the instant application. Those provisions were in sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act.
  9. Section 47 of the Law of Succession Act merely stated that the High Court had jurisdiction to deal with applications and determine disputes that arose over matters that were governed by the Law of Succession Act, and pronounce decrees and make orders as could be expedient, in the context of the provisions of the Law of Succession Act. It did not confer jurisdiction to handle disputes and applications that were not provided for under the Law of Succession Act.
  10. Inherent power was not saved under section 47 of the Law of Succession Act, but under rule 73 of the Probate and Administration Rules. The High Court could only exercise jurisdiction, according to section 47, with respect to the matters covered by or provided for under the Act. It said no more than that. The Law of Succession Act was divided into 8 parts, and the High Court was limited to handling applications that arose with respect to the matters that were governed in those 8 parts.
  11. The jurisdiction of the High Court came out clearly when juxtaposed against that of the Magistrates Courts as set out in section 48(1) of the Law of Succession Act. The jurisdiction of the Magistrate’s Court was not as wide as that of the High Court. It was limited.
  12. Creditors, in the context of the Law of Succession Act, were the individuals and entities that the estate was indebted to, and who had been acknowledged as such by the personal representatives. It also included individuals and entities holding valid court decrees against the estate. Individuals and entities whose claims against the estate had not been acknowledged by the person representation, and who did not hold any valid court decrees were not creditors of the estate, but mere claimants. Their claims were yet to be proved or established against the estate. The place to establish or prove those claims was not within the succession cause, but in separate proceedings.
  13. Section 82 of Law of Succession Act did not talk about trusts in general, but a continuing trust. The concept “ continuing trust ” was not interpreted in section 3 of Law of Succession Act. In the context of the Law of Succession Act it arose in two situations;
    1. with regard to the life interest enjoyed by surviving spouses, under Part V of the Law of Succession Act as stated in sections 35(1)(b)(2), 36(1)(c)(3) and 37. A continuing trust arose where a spouse survived the deceased, and, at distribution in intestacy, the property should devolve to the surviving spouse in the first instance, and, upon determination of the life interest, to the children or other persons beneficially entitled in intestacy. Such a surviving, spouse held such property, during their lifetime, in trust for the eventual beneficiaries, be they children or others. It was a trust that continued during the lifetime of the surviving spouse;
    2. with regard to the interests of minor survivors or beneficiaries, that was to say the interests of those beneficiaries or survivors who were below the age of majority, section 41 of the Law of Succession Act provided that the interests of such minors was held in trust, during their minority, until they attained the age of maturity, when it should be conveyed or transmitted or transferred to them. The trust, in such case, would be continuing during their minority.
  14. The term “continuing trust” was used expressly in sections 75A, 83(g)(i) and 84 of the Law of Succession Act, but it was the provision in section 84 which clearly brought out what “continuing trust” meant in the context of the Law of Succession Act, that was to say the life interest enjoyed by a surviving spouse and the trust held on behalf of a minor.
  15. Trust as used in the Law of Succession Act, particularly in Part VII, was limited to continuing trusts and other trusts in favour of beneficiaries or creditors. It was not used in the context that the applicants were using it in their application dated October 2, 2018. The applicants had not established any trust, and the administrator therein could not be deemed to be a trustee on their behalf. They had to establish that trust against him, in proceedings commenced elsewhere, but not in those succession proceedings. The court did not have jurisdiction in the probate proceedings to entertain a suit or application relating to declaration of trust.
Preliminary objection upheld; each party to bear their own costs.
Orders:
  1. Summons for revocation of grant dated October 2, 2018 struck out.
  2. Leave of 28 days to move the Court of Appeal appropriately, for whoever would feel aggrieved granted.


Kenya Law
Case Updates Issue 031/22-23
Case Summaries
JURISDICTION

The Supreme Court lacked the jurisdiction to determine an application for enlargement of time to comply with the directions in a matter it had already determined.

Summary Significance: Where the directions of the Supreme Court in determination of a matter did not require the parties to return to update the Supreme Court on whether there was any progress as regards compliance, the court would have finalised the proceedings and it did not have jurisdiction to further determine issues raised by the parties.


Shollei v Judicial Service Commission & another (Application 10 (E016)of2022) [2023]KESC8(KLR) (Civ) (17February2023) (Ruling)
Supreme Court of Kenya
PM Mwilu, DCJ and VP; SC Wanjala, NS Ndungu, I Lenaola and W Ouko, SCJJ
February 17, 2023
Reported by John Wainaina

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Jurisdiction – jurisdiction of the Supreme Court – functus officio – application to re-open a matter for directios where the court was fuctus officio - whether the Supreme Court having already made a determination on an issues before it, had the jurisdiction re-open deliberations on its directions.

Brief Facts
The applicant sought for the Supreme Court to enlarge time for compliance with Supreme Court orders which the court had issued after having conclusively determined the instant matter.

Issue:

  1. Whether the Supreme Court having already made a determination on an issues before it, had the jurisdiction re-open deliberations on its directions. Read More..

Held:

  1. The Supreme Court was functus officio having rendered its judgment on February 17, 2022 whichinter alia, directed the 1strespondent/applicant to publish and publicize procedures for all its disciplinary and investigative processes, and that such publication be undertaken and effected through the Kenya Gazette, within 90 days from the date of the Judgment. The Supreme Court having made a determination on the issues before it could not re-open deliberation on its directions.
  2. A court was functus when it had performed all its duties in a particular case. The purpose of the doctrine was to provide finality. Once proceedings were finally concluded, the court could not review or alter its decision; any challenge to its ruling on adjudication had to be taken to a higher court if that right was available.
  3. The court had finalised the proceedings in the instant matter and did not have jurisdiction to further determine issues raised by the parties. The scope of the directions given by the court was specific to a period of ninety days. Further, the directions did not require the parties to return to update the Supreme Court on whether there was any progress as regards compliance. The determination by the court on the instant matter brought the whole matter to a final close. The parties were bound by court orders which required strict compliance.
  4. The draft manual attached to the 1strespondent/applicant’s notice of motion application is the requisite legal instrument anticipated under section 47 of theJudicial Service Actwhich empowered the 1strespondent to make regulations for the better carrying out of its purpose. The 1strespondent would be well advised to stand guided by the structure and format of the already published regulations provided for and gazetted in the third schedule of theJudicial Service Actand comply accordingly in form and content.

Application dismissed with no order as to costs.
CIVIL PRACTICE AND PROCEDURE

Principles to consider in determining an application for extension of time to lodge an appeal

Summary Significance: The application sought the extension of time to file an appeal. The court highlighted the principles to be considered in determining an application for extension of time .

Mwambora & 9 others v Spire Properties (K) Limited & 50 others (Petition (Application) 27 (E031)of2022) [2023]KESC12(KLR) (Civ) (17February2023) (Ruling)

Supreme Court of Kenya
PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, I Lenaola & W Ouko, SCJJ
February 17, 2023
Reported by Kakai Toili
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Civil Practice and Procedure - appeals - timelines for lodging appeals - extension of time - what were the principles to be considered in determining an application for extension of time to lodge an appeal.

Brief facts
The instant application sought among others the extension of time for lodging an appeal against the judgment and orders of the Court of Appeal delivered on July 29, 2022 in Mombasa Court of Appeal Civil Appeal No 135 of 2018 as consolidated with Civil Appeal No 139 of 2018 and that the petition of appeal and record of appeal, both dated September 13, 2022, filed as Supreme Court Petition No E031 of 2022, subsequent to the notice of appeal dated August 15, 2022 be deemed to have been filed in time.
The applicant averred that the delay in filing the notice of appeal was occasioned by the applicants’ counsel’s involvement in offering legal services with regard to election preparedness, election management, and election results transmission; that the counsel’s mistaken computation of time arose from the erroneous view that July had thirty (30) days as opposed to thirty-one (31) days; and that the apparent mistake only occurred to counsel once it was pointed out to him in the replying affidavit of the 1st respondent. The applicant submitted that the delay in filing the notice of appeal was due to the applicants’ counsel’s mistaken belief that the deadline for filing the notice of appeal was August 15, 2022 instead of August 12, 2022.

Issue:

  1. What were the principles to be considered in determining an application for extension of time to lodge an appeal ? Read More..

Held:

  1. According to rule 15(2) of the Supreme Court Rules, 2020, the court had unfettered discretion to extend time limited by the rules or by any of its decisions. Furthermore, rule 36(1) of the Rules stipulated that a person who intended to appeal to the court should file a notice of appeal within fourteen (14) days from the date of judgment or ruling which was the subject of the appeal.
  2. The principles to be considered in determining an application for extension of time were as follows;
    1. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
    2. a party seeking extension of time had the burden of laying a basis to the satisfaction of the court;
    3. whether the court should exercise the discretion to extend time was a consideration to be made on a case-to-case basis;
    4. whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
    5. whether there would be any prejudice suffered by the respondents if the extension was granted;
    6. whether the application had been brought without undue delay; and
    7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.
  3. From the record, the judgment of the Court of Appeal was delivered on July 29, 2022. Therefore, the applicants ought to have lodged the notice of appeal by August 12, 2022. The applicants had admitted that indeed they filed the notice three (3) days after the expiry of the stipulated time. The applicants had not satisfactorily explained the reasons for that delay and as a consequence, the application for extension of time was disallowed. There was no lawful or proper petition before the court and the preliminary objections could not also attract the court’s attention.

Application dismissed; petition of appeal struck out; applicants to bear the costs of the application.