Jonathan Kimencho Lagat & 4 others v Ngeny & 1 other

[b] THAT Succession Cause No. 135 of 2022: In the Matter of the Estate of Kiplagat Kimgea alias Kiplagat arap Ngeny, (Deceased) filed at the Principal Magistrate’s Court at Kabiyet be transferred to this Court for hearing and determination. [c] THAT the costs of the application be in the cause. [d] Any other relief that the Court may deem fit to grant. [2] The application was premised on the ground that the deceased died intestate on the 14th November 1998 at Moi Teaching and Referral Hospital; and that the respondents thereafter petitioned for Grant of Letters of Administration and estimated the value of the estate at Kshs. 6,000,000/=. The applicants further averred that upon valuation of the estate, it was ascertained that its value is at least Kshs. 54,200,000/= and therefore is beyond the pecuniary jurisdiction of the Magistrate’s Court. [3] The application was supported by the affidavit of Thomas Kigen, the Advocate seized of the conduct of the matter on behalf of the applicants. He reiterated the grounds aforestated and added that Grant of Letters of Administration Intestate was issued to the respondents on 14th November 2022; and that the valuation was only done in October 2024 when it was ascertained that the correct value is Kshs. 54,200,000/=. He annexed a copy of the Valuation Report dated 30th October 2024 to his affidavit as Annexure “TK-3” and averred that since the pecuniary jurisdiction 2|Page HCFMISC. E015 OF 2025 RULING

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of the Magistrate’s Court is limited to Kshs. 20,000,000/= it has become necessary to transfer the cause to the High Court for hearing and determination. [4] The two respondents opposed the application. They relied on the Replying Affidavit sworn by Cheptalam Taplelei Ngeny, the 1st respondent herein. She averred that when they petitioned for Grant of Letters of Administration, they honestly believed that the property was valued at Kshs. 6,000,000/= based on the reigning sale price at the time. She further averred that she had seen the Valuation Report relied on by the applicants and verily believed that it does not reflect the true and accurate value of the estate of the deceased. Accordingly, the 1 st respondent urged the Court to find that the application is misconceived, fatally defective and an abuse of the process of the court process in so far as it is merely intended to delay the conclusion of this matter. [5] Directions were given herein on 6 th October 2025 for the disposal of the application by way of written submissions. While the applicants complied and filed written submissions dated 8 th October 2025, the respondents did not. The applicants proposed the following issues for determination: [a] Whether the suit is deserving of transfer to the High Court. [b] Who is to bear the costs of the application. [6] The applicants relied on Section 18 of the Civil Procedure Act and submitted that the Court has the jurisdiction to order for 3|Page HCFMISC. E015 OF 2025 RULING

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the transfer of the suit from the Magistrate’s Court to the High Court. They acknowledged that an order for transfer cannot be made unless the suit sought to be transferred was filed in a court with jurisdiction to handle it in the first place. They relied on Trinity Transporters & Logistics Ltd v Makenga & 2 others (Civil Appeal E672 of 2023) [2014] KEHC 15840 (KLR) (Civ) (17 December 2024) (Ruling) and Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR) to buttress their arguments. [7] The applicants urged the Court to find that, as at the time the suit was filed before the Magistrate’s Court, it had jurisdiction to entertain the same, granted that the value of the estate was then estimate at Kshs. 6,000,000/=. They further submitted that upon coming on record, they caused the estate assets to be valued by M/s Megand Valuers Limited and vide their Valuation Report dated 30th October 2024, they formed the expert opinion that the estate assets were worth Kshs. 54,200,000/=; and therefore it has become necessary to have the matter transferred to the High Court. [8] At paragraph 20 of their submissions, the applicants urged the Court to bear in mind that the respondents acted in good faith in filing the succession cause before the Magistrate’s Court based on their estimation of the value of the estate at the time. They also pointed out that the estate property appreciated in value over time, between the date of filing of the cause and the time of 4|Page HCFMISC. E015 OF 2025 RULING

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valuation. They therefore submitted that it is in the interest of justice that their application for transfer be allowed. [9] On costs, the applicants cited Section 27 of the Civil Procedure Act and submitted that there is no plausible reason why they should not be awarded costs should their application be allowed. [10] There is no doubt that the Court has jurisdiction to transfer a suit from the subordinate court to itself for hearing and determination. Section 18(1) of the Civil Procedure Act is explicit in this regard. It provides that: (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) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (b) 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 (iii) retransfer the same for trial or disposal to the court from which it was withdrawn. [11] Needless to mention that the above provision presupposes that the suit sought to be transferred was filed in a court competent to try it in the first instance. It is now trite that a suit filed in a court without jurisdiction is null and void, and therefore incapable of being transferred under Section 18 of the Civil Procedure Rules. Indeed, in Equity Bank Limited v Bruce 5|Page HCFMISC. E015 OF 2025 RULING

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Mutie Mutuku t/a Diani Tour & Travel (supra) the Court of Appeal held: “In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation.” [12] Similarly in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) the Court of Appeal held: “Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:“When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction. We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing. 20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity.” [13] The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports 6|Page HCFMISC. E015 OF 2025 RULING

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Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, thus: [154] However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.” [14] In this matter, the parties are in agreement that the subject suit was filed in a Court with jurisdiction to handle it, namely, the Magistrate’s Court. They are in agreement that the estate was then estimated to be worth Kshs. 6,000,000/= and was therefore within the pecuniary jurisdiction of the Magistrate’s Court. The point of departure is whether, within two years the estate had appreciated to the value of Kshs. 54,200,000/=. [15] The figure supplied by the applicants is supported by the Valuation Report dated 30th October 2024. The report was annexed to their Supporting Affidavit. It was prepared by Megand Valuers Limited and it gives the acreage of the asset, namely NANDI/CHEPTIL/28 AS 44.5 and indicated that it has a three bedroomed bungalow and other structures. The Court has no reason to doubt the veracity of the said report. Indeed, Section 48 (1) and (2) of the Evidence Act provides that: “(1) when the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible, if made by persons specially skilled in such foreign law, science or art on questions as to identify the genuineness of the handwriting or finger or other impressions. 7|Page HCFMISC. E015 OF 2025 RULING

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(2) such persons are called experts.” [16] In Mutonyi v Republic (Criminal Appeal No. 92 of 1981) expert evidence was defined as follows: “Expert evidence is evidence given by a person skilled and experienced in some professional or special sphere of knowledge of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurement and the like.” [17] Therefore, the respondents could only impugn the Valuation Report on the basis of a counter valuation report. An analogy can be drawn from Miscellaneous Application No. 427 of 2010 Ali Mohammed Sunkar v Diamond Trust Bank (K) Limited, in which a handwriting expert’s opinion was challenged. The Court held: “The Defendant’s attempts to resist the Plaintiff’s Application by challenging the handwriting experts report. The report can only be challenged by counter expert report, Elizabeth Hinga who is the head of Debt Recovery Unit cannot simply discredit the handwriting experts report without tabling another handwriting report. The Plaintiff has proved that he did not author the bank transfers by his own personal averment and also supported by expert evidence which the Defendant has failed to rebut. There is no issue to go for trial.” [18] In the result, and in the light of the foregoing, the application dated 4th June 2025 is hereby allowed and orders made in respect thereof as follows: [a] THAT Succession Cause No. 135 of 2022: In the Matter of the Estate of Kiplagat Kimgea alias Kiplagat arap Ngeny, (Deceased) filed at the Principal Magistrate’s Court at Kabiyet be and is hereby transferred to this Court for hearing and determination. [b] THAT the costs of the application be in the cause. 8|Page HCFMISC. E015 OF 2025 RULING

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It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 4TH DAY OF JUNE 2026 ………………………………………. HON. OLGA SEWE JUDGE 9|Page HCFMISC. E015 OF 2025 RULING

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