Probate business is divided into non-contentious (probate in common form) and contentious probate (probate in solemn form).
Non-contentious procedures, which are non-contentious while contentious probate refers to succession procedure, which is contentious i.e., dispute or objection to grant, reasonable provision etc. The LSA gives both original and appellate jurisdiction to the courts over probate matters. The Act confers original jurisdiction to the High Court, but the CJ has power to delagate such matters to resident magistrate’s courts and kadhis’s courts.
Under S 47, the High Court is vested with jurisdiction over probate and administration matters, specifically to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders, as it may consider expedient. This provision is reinforced by S 48 of the LSA, which provides that where there is a High Court, the resident magistrates shall have no jurisdiction, but the High Court shall have exclusive jurisdiction to make all grants of representation and determine all disputes under the LSA. S 11 of the Public Trustee Act also gives jurisdiction to the High Court regarding making of grants to the Public Trustee.
For judicial stations where there is no High Court, the Chief Justice may appoint a resident magistrate to represent the High Court (S 47 of the LSA). The resident magistrate so appointed exercises the same powers as the High Court, including the power, in cases of apparent urgency, to make grants limited to the collection of assets and payment of debts with respect to property within his jurisdiction.
The jurisdiction of the resident magistrate is, however, limited with respect to some matters (sections 48 and 49 of the LSA). The resident magistrate cannot entertain applications to revoke a grant and cannot make orders regarding estates whose gross value exceeds Kshs. 100 000.00. The resident magistrates have no jurisdiction in any place where there is a High Court. Unless appointed an RM cannot deal with P& A matters – you lose jurisdiction once you are transferred (If you had been appointed by CJ) - Reform suggestion: for RM pecuniary jurisdiction to be increased
The LSA confers jurisdiction on Kadhi’s courts regarding administration of the estate of a deceased Muslim. Under sections 2(3) and 48(2) of the LSA the substantive provisions of the Act do not apply to the estate of deceased Muslim Islamic law applies instead. However, section 2(4) of the Act applies Part VII of the Act, which is relates to the administration of estates, to the estate of a deceased Muslim and appears to grant to the kadhi the same jurisdiction as the resident magistrate.
The decision of the High Court on the appeal is final. S 50(2) of the Act provides similarly for appeals from the decision of a kadhi, but the decision of the HC on the appeal from the kadhi’s decision is not final as there is provision for a further appeal to the Court of Appeal in respect of any point of Islamic law. In such case an appeal to the Court of Appeal should be with the prior leave of the High Court. Where the High Court is exercising its original jurisdiction, the right of appeal is not stated. The Act is silent. Some decisions have held that there is no right of appeal to the Court of Appeal. Ang’awa J has held that a person seeking an appeal from the High Court should seek a review then appeal against the review if you are still aggrieved by decision after review.
The Court of Appeal, however, has held in Makhangu vs. Kibwana (1995-1998) 1 EA 175 that an appeal does lie to the Court of Appeal from a decision of the High Court in probate matters. According to the court, under S 47 of the LSA, the High Court has jurisdiction on hearing any application to pronounce decrees or orders. Any order or decree made under this section is appealable under S 66 of the Civil Procedure Act, either as a matter of right if it fell within the ambit of S 75 of the Civil Procedure Act or by leave of the court if it did not. This decision was based on the Court of Appeal’s earlier decision in Commissioner of Income Tax vs. Ramesh K. Menon (1982-1988) 1 KAR 695 The decision of the Court of Appeal in Makhangu vs. Kibwana was followed with approval by the Court of Appeal in Kaboi vs. Kaboi and others (2003) 2 EA 472 and with reservation by the High Court which holds a position, that holds that the LSA is a comprehensive code which depends on the provisions of the Civil Procedure Act to the extent the Civil Procedure Act is allowed by the LSA. The LSA does not provide for an appeal from the High Court to the Court of Appeal, and it does not say that the provisions of the Civil Procedure Act on appeals apply. Koome J apparently followed Makhangu vs. Kibwana reluctantly In the Matter of the Estate of Hezron Bernard Wamunga. She said in the ruling that the Law of Succession Act is a specialised piece of legislation complete with its own rules of procedure, and that the Act regulates all the proceedings and provides for procedures to be followed. Thus, there is no right of appeal.
Shah v Shah No.2/2002 2 KLR 607 – Onyancha J held that where any proceedings are covered by special legislation, the Civil Procedure Act and Rules do not apply unless covered by special legislation even if such legislation is silent and does not exclude the application of the CPC and CPA i.e. the LSA is a self-contained code covering both procedure and substance of the matter dealing with succession.
The High Court, in a number of decisions, has held that section 47 of the LSA and rule 73 of the P&A Rules, gives the High Court inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. In Re Estate of Kilungu (deceased) (2002) 2 KLR 136, Khamoni J, while saying that rule73 of the P &A Rules saves the court’s inherent powers in the same way as section 3A Civil Procedure Act, cautioned that rule 73 cannot be used to do what the LSA does not allow the court to do. He pointed out that rule 73, just like section 3A of the Civil Procedure Act, has to be used to do what is lawful only. In the context of the case rule 73 could not be invoked to apply Order XXXIX (TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS) of the Civil Procedure Rules in probate matters and he dismissed an application for an injunction.
The only provisions of the CPR imported to the LSA are Orders dealing with. service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. This is not to say that you cannot rely on the CPR provisions at all. The LSA does not provide a mechanism for enforcement of orders issued under the Act i.e. no equivalent of O 21 yet it has not been imported into succession proceedings. If a party wishes to obtain orders which are enforceable, they must bring proceedings under the CPR by filing an ordinary suit by way of plaint/summons e.g. if you want an injunction. You must file a formal suit and make application in the suit.
The Court of Appeal in Kangwana & Company Advocates vs. Solomon I. Kisili Nakuru CACA No. 41 of 1984, stated that actions against executors and administrators can be brought under Order XXX(RECOGNIZED AGENTS AND ADVOCATES), Order XXXVI( ORIGINATING SUMMONS) and Order IV(INSTITUTION OF SUIT AND ISSUE OF SUMMONS) rule 1 of the CPR. Probate proceedings are not suits in the ordinary meaning of civil suits. Therefore, orders and decrees of the probate courts are not enforceable under Cap 21. The only way of enforcing a probate courts orders is through contempt proceedings.
The High Court exercises supervisory jurisdiction over the resident magistrate in succession matters (S 49 of the LSA).