INTRODUCTION
Revocation of grant in the courts of law is not a new phenomenon. Revocation of grant is guided by section 76 of the Law of Succession Act Cap 160 Laws of Kenya.
In this article, we shall discuss the case of Musine v Osamo (Sued as co-administrator of the Estate of Stephen Osamo (Deceased) where it was held that the High Court can only revoke grants made by itself but not those made by the Chief Magistrate’s Court except by way of appeal.
In this case, the Applicant sought revocation of a grant made by the High Court after the succession proceedings were transferred to the Chief Magistrate’s Court.
The court found that the exclusive jurisdiction conferred on the High Court, to revoke all grants, regardless of the court that had made them was no longer the practice since 02/01/2016. The Chief Magistrate Courts could now revoke grants made by themselves. The court held that the High Court could only revoke grants made by itself, but not those made by magistrates. Furthermore, the High Court did not have original jurisdiction to revoke a grant that was pending before the lower court.
The case was in the High Court at Busia in HCSC No. 85 of 1999 namely; ‘‘In the Matter of the Estate of Stephen Osamo” which was later transferred to the Chief Magistrate’s Court in 2018, and became Busia CMCSC No. 503 of 2018.
ORDERS OF THE COURT
The Honourable Court made the following orders:-
- The matter of the estate of Stephen Osamo was being handled in the Chief Magistrate Court and all the applications including the revocation of grant were to be heard by the same court and not the High Court.
- The law, with respect to revocation of grant in succession causes pending before the Magistrate’s Courts, had changed. The Law of Succession Act was amended by the Magistrates’ Courts Act, No. 26 of 2015 giving Chief Magistrate Courts jurisdiction to revoke grants.
- Section 23 of the Magistrates’ Courts Act, 2015, amended section 48(1) of the Law of Succession Act, which had granted exclusive jurisdiction to the High Court to revoke grants made by the Magistrate’s Court, and extended that jurisdiction to the Magistrate’s Court. The High Court could only exercise its appellate jurisdiction, with respect to decisions by magistrates revoking grants made by them.
- Once a case has been transferred from the High Court to the Chief Magistrate Court the matter will have to be determined by the magistrate after a new case number has been issued. The High Court can only intervene by way of appeal.
- Once the case has been transferred to the Chief Magistrate Court, the orders made by the High Court Judge automatically become orders of the Chief Magistrate Court and any of the other magistrates in that court, and were available for review, setting aside, variation, or vacating as any order made thereafter by the magistrates who became seized of the matter including revocation of the grant made by the High Court. Therefore no confusion will arise.
- The court ordered the Chief Magistrate to reissue the grant and certificate of confirmation of grant. Subsequently, the Applicant to file for fresh summons for revocation of grant. The application was dismissed for being incompetent and lacking merit.
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