MARY CHEPKAMOR FRANCIS, LEKAKENY NTIRRA & CATHERINE KORIKO v EVALINE ROSA [2009] KEHC 588 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT KISII

Succession Cause 474  of 2009

MARY CHEPKAMOR FRANCIS )

LEKAKENY NTIRRA          ) …... OBJECTORS/APPLICANTS

CATHERINE KORIKO        )

VERSUS

EVALINE ROSA …….……. PETITIONER/RESPONDENT

RULING

Section 48(1) of the Law of Succession Act limits the jurisdiction of a Resident Magistrate’s court to issue grants for letters of administration to estates whose gross value does not exceed Kshs. 100,000/=.

A grant issued by a court without jurisdiction is a null and void and of no legal consequence.  In MACFOY –VS- UNITED AFRICA LIMITED [1961] 3 ALL ER 1169, Lord Denning said at Pg. 1172:

“If an act is void, then it is in law a nullity

and not a mere irregularity.  It is not only

bad but incurably bad.  There is no need

for an order of the court to set it aside.

It is automatically null and void without

more ado, though it is sometimes

convenient to have the court declare it

to be so.  And every proceeding which

is founded on it is also bad and incurably

bad.  You cannot put something on nothing

and expect it to stay there.  It will

collapse.”

In Succession Cause No. 9 of 2005 in the Senior Resident Magistrate’s Court at Kilgoris, Evarline Rosa applied for letters of administration in respect of the estate of Kimayio Ole Ntira, hereinafter referred to as “the deceased.”In the affidavit in support of the petition, the petitioner said that she was a daughter of the deceased.  She had earlier obtained a letter from James Ole Kaipoi, the Chief, Oloibor-Soito Location, stating that she was a daughter of the deceased.

In her affidavit, the petitioner deposed that the estate of the deceased was valued at approximately Kshs. 300,000/=.  Despite that express disclosure, W.K. Chepseba, Senior Resident Magistrate, Kilgoris, went ahead to issue letters of administration to the petitioner.  The said court simply acted ultra vires its jurisdiction.

Thereafter the grant was confirmed and the petitioner proceeded to transfer to herself land parcel No. Transmara/Oloiborsoito/12 that was previously owned by the deceased.

On 17th August, 2009 the applicants herein applied for revocation or annulment of the said grant.  They also urged the court to annul the transfer and the title deed aforesaid on the ground that the grant was obtained fraudulently and by means of an untrue allegation that the petitioner was a daughter of the deceased whereas she was a grandchild.

The petitioner filed a replying affidavit and denied that she was the deceased’s grandchild, she reiterated that she was the only child of the deceased.

I have perused the written submissions filed by the advocates for the respective parties hereto.  Though the applicants did not raise the issue of jurisdiction of the Kilgoris Senior Resident Magistrate’s court, it is obvious that the court lacked jurisdiction to issue the grant in view of the disclosed value of the deceased’s estate.  The grant was a nullity and so was everything else that was done pursuant to the issuance of the same.

The application must be allowed for that reason alone.

The title deed that was obtained by the petitioner is also ordered cancelled.  The petitioner shall bear the costs of the application.

DATED, SIGNED AND DELIVERED AT KISII THIS 20TH DAY OF NOVEMBER, 2009.

D. MUSINGA

JUDGE.

20/11/2009

Before D. Musinga, J.

Mobisa – cc

Mr. Nyasimi for the Applicant

Mr. Oguttu for the Respondent

Court:  Ruling delivered in open court on 20th November, 2009.

D. MUSINGA

JUDGE.