Ogutu (Suing as a personal representative of the Estate of Vitalis Ogutu Aroka-Deceased) v Homabay County Government

in the petition is Kshs. 20,293, 000/= which is beyond the pecuniary jurisdiction of the magistrate’s court. That this is an old matter which need to be heard without delay. 3. The respondent through the rm of Aluoch Odera and Nyauke Advocates opposed the application by the grounds of opposition dated December 16, 2023 thus; a. The application is an abuse of the court process. b. The applicant does not have the legal capacity to make such application. c. The application is thus defective. 4. The application was heard by way of written submissions pursuant to this court’s orders of March 7, 2023. 5. Consequently, learned counsel for the applicant led submissions dated March 16, 2023 and stated that the magistrate’s court has no pecuniary jurisdiction to hear the matter. That after the original petitioner died, the current applicant obtained Ad Litem in Homa Bay CM’s Court Succession Cause No. E8 of 2020 to proceed with the matter. Counsel implored the court to dismiss the grounds of opposition and stated that they are a distraction and only meant to delay the proceedings of the case thus, the prayers in the application be granted. 6. The respondent led no submissions in this application. 7. I have carefully considered the application, grounds of opposition and the applicant’s submissions in entirety. Therefore, twin issues arise for determination namely; a. The Chief Magistrate’s court pecuniary jurisdiction over this matter in dispute and b. Legal capacity of the applicant in the matter. 8. In respect of the rst issue, the applicant stated at ground 3 of the application that the total value of the subject property land reference number Kanyamwa/Kayambo/Kwamo/136 is Kshs.20,293,000/ = which is way beyond the jurisdiction of the chief magistrate’s court. The same is shown in the inspection and valuation report dated 7th July 2010 marked as “P.W.O 1” as per paragraphs 7 of the applicant’s supporting adavit and annexed to the said adavit. 9. It is trite law that jurisdiction of a court ows from either the Constitution or statute or both; see Samuel Kamau Macharia and 2 others-vs-Kenya Commercial Bank Ltd and 2 others (2012) eKLR. 10. It must be borne in mind that pursuant to section 7 of the Magistrates’ Court Act, 2015 and section 26 (4) of the Environment and Land Court Act, 2015 (2011), Homa Bay Chief Magistrate’s court has jurisdiction to hear and determine such matters; see also Joseph Madegwa-vs-Gaylord Avedi (2015) eKLR. 11. Besides, the said court is devoid of pecuniary jurisdiction over the matter in light of the value of the subject property as revealed at paragraph 8 herein above. Moreover, under section 13 (1) and (3) of the Environment and Land Court Act, 2015 (2011), this court is seized of the original and appellate jurisdiction over the matter pursuant to article 162 (2) (b) of the Constitution of Kenya, 2010 and the decision in the case of Republic-vs-Karisa Chengo and 2 others (2017) eKLR. 12. As regards the second issue, the respondent alleged that the applicant lacks legal capacity to initiate this application. However, the applicant stated at paragraph 4 of his adavit in support of the application that he obtained a limited grant Ad Litem in respect of the estate of the deceased original petitioner in https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18238/eng@2023-06-06 2

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Homa Bay Chief Magistrate’s court Succession Cause number E8 of 2020 to proceed with the petition. The said grant is indicated in the attachment to the applicant’s submissions. 13. Also, this court is guided by the denition of the term “legal representative” under section 2 of the Civil Procedure Act chapter 21 Laws of Kenya. Further, I subscribe to the decision in the case of Trouistik Union International and another-vs-Jane Mbeyu and another (1993) eKLR, where the Court of Appeal held that the estate of the deceased person is vested in the legal representative. So, in view of the grant Ad Litem issued to the applicant as stated in paragraph 12 above, he has the legal capacity to commence this application. 14. In the result, this application is meritorious. The same, be and is hereby allowed in terms of prayers 2, 3 and 4 on it’s face and as captured in paragraph 1(b), (c) and (d) hereinabove. 15. It is so ordered. DATED AND DELIVERED AT HOMA BAY THIS 6TH DAY JUNE 2023. G. M. A ONG’ONDO JUDGE PRESENT a. Mr. B Ochieng instructed by Mr J Osoro learned counsel for the applicant b. Mr. S.Nyauke, learned counsel for the respondent c. Okello, court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18238/eng@2023-06-06 3

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