In re Estate of Fred Kesekwa Keya (Deceased) (Miscellaneous Application E319 of 2025) [2025] KEHC 15957 (KLR) (Family) (7 November 2025) (Ruling) Neutral citation: [2025] KEHC 15957 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) FAMILY MISCELLANEOUS APPLICATION E319 OF 2025 H NAMISI, J NOVEMBER 7, 2025 IN THE MATTER OF THE ESTATE OF FRED KESEKWA KEYA (DECEASED) IN THE MATTER OF JULIET NAVIOLA KESEKWA ............................................................... APPLICANT RULING 1. The Applicant has filed Notice of Motion dated 10 July 2025 seeking the following orders: i. That Succession Cause No. E326 of 2025 filed at the Magistrates Court at Nairobi be transferred to the Magistrate’s Court at Kakamega for hearing and disposal; ii. That the costs of the Application be in the cause. 2. The Application, which is brought under section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules and section 18 (1)(a) of the Civil Procedure Act, is premised on the grounds that the case was filed in Nairobi in error since the Deceased lived and died in Kakamega. The properties in the estate are also situated in Kakamega. 3. The Application is supported by an Affidavit sworn by Simeo M. V. Keyonzo, Advocate. 4. The law relating to transfer of suits is contained in Section 18 of the Civil Procedure Act. Section 18(1) (b)(ii) which gives the Court discretionary powers as follows: “ (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage— a. … https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15957/eng@2025-11-07 1
page 1 of 2
b. 5. withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter— i. try or dispose of the same; or ii. transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or While exercising its discretion set out in Section 18, the Court will be mindful of the balance of convenience, questions of expense, interests of justice and possibilities of undue hardship that may be occasioned to the parties. These principles were set out in the case of Kageny v Musiramo & Another [1968] EA 43 as follows: “ It is a well-established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make a strong case to the satisfaction of the Court that the application ought to be granted. There are also authorities stating that the principle matters to be taken into consideration are balance of convenience, questions of expense, interests of justice and possibilities of undue hardship; and if the Court is left in doubt as to whether under all circumstances it is proper to order a transfer, the application must be refused.” 6. In the present case, the Court with geographical jurisdiction is one located in Kakamega County, where the Deceased resided and died. Further, the assets of the estate are located in the same county. 7. I, therefore, allow the Application and make the following orders: i. Succession Cause No. E326 of 2025 filed at the Magistrates Court at Nairobi be transferred to the Magistrate’s Court at Kakamega for hearing and disposal; ii. The costs of the Application shall be in the cause. DATED AND DELIVERED AT NAIROBI THIS 7 DAY OF NOVEMBER 2025 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For Applicant: Mr. Keyonzo Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15957/eng@2025-11-07 2
page 2 of 2