Case ID:119167

Turfena Anyango Owuor & another v Mary Akinyi Dengo [2018] eKLR

Case Metadata

Case Number:

Miscellaneous Succession Application18 of 2018

Parties:

Turfena Anyango Owuor & Musa Ahmed Owuor v Mary Akinyi Dengo

Date Delivered:

12 Jul 2018

Case Class:

Civil

Court:

High Court at Migori

Case Action:

Ruling

Judge(s):

Antony Charo Mrima

Citation:

Turfena Anyango Owuor & another v Mary Akinyi Dengo [2018] eKLR

Advocates:

Mr. Kisera instructed by the firm of Messrs. Omonde Kisera & Co. Advocates for the Applicants.

Case History:

Application arising from High Court Misc. Succession Cause No. 36 of 2016 and Migori Senior Resident’s Magistrates’ Court Succession Cause No. 20 of 2002

Court Division:

Family

County:

Migori

Advocates:

Mr. Kisera instructed by the firm of Messrs. Omonde Kisera & Co. Advocates for the Applicants.

History Docket No:

Succession Cause 20 of 2002

Case Summary:

Magistrates Courts have jurisdiction to hear and determine applications for revocation or annulment of grants in succession matters, subject to their pecuniary jurisdiction.

Turfena Anyango Owuor & another v Mary Akinyi Dengo

Misc Succession Appln 18 of 2018

High Court at Migori

A C Mrima, J

July 12, 2018

Reported by Beryl A Ikamari

Jurisdiction

-jurisdiction of Magistrates Courts-applications for annulment or revocation of grants in succession matters-extent of the jurisdiction of Magistrates' Courts in succession matters-whether Magistrates Court could hear and determine applications for annulment or revocation of grants-Law of Succession Act (Cap 160), section 48(1); Magistrates' Courts Act (Cap 10), section 23; Probate and Administrations Rules, 1980, rule 44.

Brief facts

A grant of letters of administration was issued in Migori Senior Resident Magistrate’s Court Succession Cause No. 20 of 2002 and it was thereafter confirmed in the year 2004. In 2016, in Migori High Court Misc. Succession Cause No. 36 of 2016, two Interested Parties filed for a revocation of the grant. The High Court transferred the application for revocation to the Chief Magistrates’ Court at Migori for hearing and determination.

At the Chief Magistrates’ Court the Applicant's counsel stated that the Court lacked jurisdiction over revocation applications as they were the exclusive preserve of the High Court. The Court made an order for a new cause to be placed before the High Court in order to determine the issue on revocation. At the High Court the issue on the jurisdiction of the Magistrates' Courts to hear and determine applications on revocation of grants arose.

Issue

Whether Magistrates' Courts had jurisdiction to hear and determine applications for revocation or annulment of grant in succession matters.

Held

Initially section 48 of the Law of Succession Act provided for the jurisdiction of Magistrates' Courts in succession matters. The said section 48 provided that a Resident Magistrate had jurisdiction to entertain any application other than an application under section 76 of the Law of Succession Act. Section 76 of the Law of Succession Act dealt with revocation or annulment of grant.

In 2015 section 48(1) of the Law of Succession Act was amended by the enactment of the Magistrates’ Court Act. It expressly repealed section 48(1) of the Law of Succession Act and substituted it with a new provision. Section 23 of the Magistrates' Courts Act provided for the jurisdiction of Magistrates' Courts and its import was that Magistrates' Courts had jurisdiction to deal with an application for revocation or annulment of grant subject to the pecuniary jurisdiction of the Court.

The value of the estate as stated in Form P & A 5 was disclosed as Kshs. 200,000/=. Therefore, the application had to be determined at the Magistrates' Court.

Rule 44 of the Probate and Administration Rules, 1980 required applications seeking the revocation or annulment of grants to be exclusively filed in the High Court. The Probate and Administration Rules, 1980 entailed subsidiary legislation and they were incapable of overriding any provisions of statute. Hence, the position was that Magistrates' Courts had jurisdiction to deal with applications for revocation or annulment of grants subject to their pecuniary jurisdiction.

Orders:-

The application was to be heard and determined at the Migori Chief Magistrates’ Courts.

The High Court file was marked as closed.

Parties:

Owuor & another v Mary Akinyi Dengo [2018]KLR-HCK

Case Number:

Miscellanous Succession Application 18 of 2018

Cases

East Africa

Statutes

East Africa

1. Law of Succession (cap 160) Amended sections 23, 76 – (Interpreted)

2. Law of Succession Act (cap 160) section 48(1) – (Interpreted)

3. Magistrates’ Court Act, 2015 (Act No 26 of 2015) – In general- (Cited)

4. Probate and Administration Rules, 1980 (cap 160 Sub Leg) rule 44 – (Interpreted)

Advocates

1.

Mr Kisera Counsel for the Applicants

Extract:

Cases

East Africa

Statutes

East Africa

1. Law of Succession (cap 160) Amended sections 23, 76 – (Interpreted)

2. Law of Succession Act (cap 160) section 48(1) – (Interpreted)

3. Magistrates’ Court Act, 2015 (Act No 26 of 2015) – In general- (Cited)

4. Probate and Administration Rules, 1980 (cap 160 Sub Leg) rule 44 – (Interpreted)

Advocates

1.

Mr Kisera Counsel for the Applicants

History Advocates:

One party or some parties represented

History County:

Migori

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MIGORI

MISC. SUCCESSION APPLN. 18 OF 2018

1. TURFENA ANYANGO OWUOR

2. MUSA AHMED OWUOR..............................APPLICANTS

-VERSUS-

MARY AKINYI DENGO...........PETIOTIONER/RESPONDENT

(Application arising from High Court Misc. Succession Cause No. 36 of 2016 and

Migori Senior Resident’s Magistrates’ Court Succession Cause No. 20 of 2002)

RULING

1. This is a ruling on whether a Magistrate’s Court has jurisdiction to entertain an application for revocation or annulment of a grant it issued.

2. Before I deal with the issue there is need to set the record straight more so on the movement of the Court file from the lower court to this Court. In doing so I will briefly look at the background of the matter. The matter was initially instituted as

Migori Senior Resident Magistrate’s Court Succession Cause No. 20 of 2002

(hereinafter referred to as ‘

the Cause

’). A grant was issued and subsequently confirmed on 09/03/2004.

3. In 2016 two interested parties in the estate filed for revocation of the grant in

Migori High Court Misc. Succession Cause No. 36 of 2016

(hereinafter referred to as ‘

the application

’). On 02/11/2016 this Court transferred the application to the Chief Magistrate’s Court at Migori for hearing and determination. The application was erroneously registered as

Succession Cause No. 200 of 2016

at the Chief Magistrate’s Court at Migori (hereinafter referred to as ‘

the new Cause

’). I say so because the proceedings in the lower court in respect to the application ought to have been undertaken in the Cause which was already in existence and not in a fresh file.

4. That being so, the new Cause was placed before

Hon. R. Odenyo,

Senior Principle Magistrate on 09/04/2018 for hearing.

Mr. Kisera

Counsel appearing for the Applicants pointed out to the court that the court lacked jurisdiction over the matter since revocation applications were the exclusive preserve of the High Court. The court then made an order that the new Cause be placed before the High Court for a determination of the issue. The order of the court was complied with and the new Cause was placed before me where I gave a date for a ruling on the issue which ruling was to be delivered in a new High Court Miscellaneous file which was to be opened.

5. I must however point out that when the issue of jurisdiction was raised before the lower court, that court was duty-bound to hear the rival parties’ submissions and rule on the issue. Any dissatisfied party would then approach the High Court on appeal. It was therefore inappropriate for the court to forward the matter to the High Court for the said determination. When the matter was irregularly placed before me I had the option of referring it back to the lower court, but in view of the age of the matter I opted to settle the issue of jurisdiction hence this ruling.

6. Turning to the issue of the jurisdiction of the magistrates in succession matters, I believe the law as amended is so clear and settled. Initially the jurisdiction of the magistrates in succession matters was provided by

Section 48(1)

of the

Law of Succession Act, Cap. 160

of the Laws of Kenya (hereinafter referred to as

‘the Act’

). The said provision stated as follows: -

‘Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 of this Act,

a Resident Magistrate shall have jurisdiction to entertain any application other than an application under section 76 of this Act and to

determine any dispute under this Act and pronounce such decrees and make such orders therein as my be expedient in respect of any estate the gross value of which does not exceed one hundred thousand shillings:

Provided that for the purpose of this section in any place where both the High Court and a Resident Magistrate’s Court are available, the High Court shall have exclusive jurisdiction to make all grants of representation and determine all disputes under this Act.’ (emphasis added).

7. In 2015

Section 48(1)

of

the Act

was amended by the enactment of the

Magistrates’ Court Act, Act No. 26 of 2015

(hereinafter referred to as

‘the new Act’

).

Section 23

of

the new Act

repealed the said

Section 48(1)

of

the Act

and substituted it with the following new subsection: -

’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.’ (emphasis added).

8. The effect of the aforesaid amendment was to accord jurisdiction to the magistrates to deal with applications under

Section 76

of

the Act

which are for revocation or annulment of the grants issued by the magistrates’ courts. I, therefore hold that a Magistrates’ Court has jurisdiction to deal with an application for revocation or annulment of a grant it issued subject to the pecuniary jurisdiction of that court. Since the value of the estate in Form P & A 5 was disclosed as Kshs. 200,000/= the application must be determined by the lower court.

9. Before I come to the end of this ruling I must also clarify that

Rule 44

of the

Probate and Administration Rules, 1980

which requires applications seeking the revocation or annulment of grants to be exclusively filed in the High Court was not amended. However, given that the

Probate and Administration Rules, 1980

are subsidiary legislation they cannot override any of the provisions of

the Act

and as such the position remains that the Magistrates’ Court have jurisdiction to deal with applications for revocation or annulment of grants issued by those courts subject to their pecuniary jurisdiction.

10. Having said so, there is need for the Rules Committee to amend

Rule 44

of the

Probate and Administration Rules, 1980.

11. I hence order that the application be heard and determined at the Migori Chief Magistrates’ Courts and this file is hereby marked as closed.

Orders accordingly.

DELIVERED, DATED and SIGNED at MIGORI this 12

th

day of July 2018.

A. C. MRIMA

JUDGE

Ruling delivered in open court and in the presence of: -

Mr. Kisera

instructed by the firm of Messrs. Omonde Kisera & Co. Advocates for the Applicants

.

Mary Akinyi Dengo,

Petitioner in person.

Evelyne Nyauke –

Court Assistant