Loise Nyaguthii Maina v Rose Wairuri Kigo

jurisdiction of this court is circumscribed under Article 165(3) of the Constitution of Kenya, which posits as follows: (3) 7. Subject to clause (5), the High Court shall have(a) unlimited original jurisdiction in criminal and civil matters; (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144; On the jurisdiction of this court, I do no more than reproduce in detail the disposition by Musyoka J, in re Estate of Andashe Munyeti (Deceased) [2021] eKLR as follows: 5. After a grant is confirmed, and a certificate of confirmation of grant is processed and issued, the next step would be transmission of the property in accordance with the distribution in the certificate of confirmation of grant. Transmission is not a process under the Law of Succession Act, Cap 160, Laws of Kenya. The Law of Succession Act does not provide for it. Indeed, the term transmission is not even mentioned in the Act. It is a process which is provided for in the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. The process has nothing to do with the succession process. The effect of it is that once the court confirms a grant, and issues a certificate of confirmation of grant, its work would be over. The parties ought to move to the next step, of execution of the confirmation orders, which happens at the land registries and at the offices of other land authorities. The application that has been placed before me dwells on matters that have nothing to do with succession, but registration of land, and the parties are better of addressing the issues to the relevant land bodies. The promulgation of the Constitution, 2010, on 27th August 2010, had one critical consequence, the taking away of jurisdiction from the High Court, with respect to matters relating to land. That comes out very clearly from Articles 162(2) and 165(5) of the Constitution. Parliament passed a law that established the Environment and Land Court. The Land Registration Act and the Land Act, which govern transmission and land registration, carry provisions that make it clear that where disputes or questions or the need for certain actions arise, with respect to issues that are regulated or governed by the two statutes, such as transmission and land registration, then the court to address them is the Environment and Land Court and any subordinate court vested with jurisdiction. These provisions are in sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act. 8. Jurisdiction is everything and without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. 9. On 18.09.2025, this Court ordered that no transfer of the suit property was to be effected pending the determination of the matter. The Protestor has not demonstrated that the said order has been breached. Further, no application for contempt of court has been filed to substantiate the allegation that a transfer has been undertaken in contravention of the Court's order. In the absence of such evidence or proceedings, the court’s hands remain tied. 10. I find that this Court has already addressed the issue now raised by the Protestor by expressly prohibiting any transfer of the suit property. If the Protestor is of the view that the said prohibition https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12638/eng@2026-07-29 2

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has been violated, the proper course is not to seek cancellation of the alleged transfer, since the same is already unlawful. 11. As matters stand, any transfer effected without the sanction of the Court is of no legal consequence and is therefore null, void, and incapable of conferring any rights upon the purported transferee. An act undertaken in contravention of the law or a court order is a nullity from the outset and cannot create valid legal rights. In the case of Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, Lord Denning, delivering the opinion of the Privy Council at page 1172 (1) said; “ If an act is void, then it is in law a nullity. 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.” 12. Based on the above disposition, the court has no jurisdiction to entertain the application. The court had hitherto made a decision on all transfers related to the parcels where there was a life interest: a. Noting the petitioner's inability to continue to preserve the estate, the court suo motu terminates her as an administrator. The parties shall agree on alternative administrators, or the court shall appoint some who can conclude the estate and run the properties left in trust. b. The conservatory orders issued hitherto shall remain in force until the life interest is terminated or this court has given an express order. c. For the avoidance of doubt, the petitioner or the new administrators have no power to dispose of any of the deceased's assets that are subject to the life interest. 13. If there have been any purported transfers affecting the life interest, the administrators ought to move the appropriate court to set aside such transfers or, where the transfers were effected in defiance of existing court orders, institute contempt proceedings before this Court. The life tenant is still alive, and under the law, a life interest can only come to an end upon its lawful termination. There is therefore no legal basis upon which any valid transfer of the property could have been effected during the subsistence of the life interest. 14. Consequently, the issue raised can only properly be addressed within the context of an application for contempt of court, or such other appropriate proceedings challenging the legality of the impugned transfers in section 162(2)(b) of the Constitution: (2) 15. Parliament shall establish courts with the status of the High Court to hear and determine disputes relating toa. …….; and b. the environment and the use and occupation of, and title to, land. This leaves the issue of costs, which is generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say: “ It is our finding that the position in law if that costs are at the discretion of the court seized up of the matter, with the usual caveat being that such discretion should be exercised judiciously, meaning without caprice or whim and on sound reasoning; secondly that a court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12638/eng@2026-07-29 3

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can only withhold costs either partially or wholly from a successful party for good cause to be shown. 16. In the circumstances, this application is premature. It is hereby struck out. 17. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows: 18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciouslyexercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation. 22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 18. Given the circumstances of the matter, each party shall bear its costs. Determination 19. In the upshot, I make the following orders: a. The application dated 13.6.2025 is struck out. b. Each party shall bear its costs. c. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 29TH DAY OF JULY, THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. Ruling delivered through Microsoft Teams Online Platform. KIZITO MAGARE JUDGE In the presence of: Mr. Makura for the Applicant Mr. Kimotho for Mr. Okoth Ober for the 2nd Respondent Mr. Wainaina for the Petitioner/Respondent Court Assistant – Timothy https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12638/eng@2026-07-29 4

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