Summary

The appellant filed a Primary Court probate cause seeking appointment as administrator of a deceased estate. A relative complained to the District Court that the appellant's Primary Court application lacked a death certificate, contained allegedly inauthentic clan minutes and village officer letter, omitted an affidavit as to the deceased's domicile, and lacked surety bonds. The District Court, in revision, quashed the Primary Court proceedings citing section 33(1) of the Probate and Administration of Estates Act Cap 352. On review the High Court held that Cap 352 does not apply to Primary Court probate matters; such matters are governed by the 5th Schedule to the Magistrates' Courts Act Cap 11. The High Court further found that the alleged defects should have been raised and adjudicated in the Primary Court rather than by District Court revision. The District Court's decision was therefore a nullity; it was nullified and the record was remitted to the Primary Court to continue the proceedings. Each party was ordered to bear its own costs. Issues Whether the District Court correctly applied the Probate and Administration of Estates Act Cap 352 to proceedings originating in the Primary Court? Whether the District Court properly exercised its revisional jurisdiction in quashing Primary Court probate proceedings for defects that should have been raised before the Primary Court? Whether the Primary Court probate proceedings were properly nullified for lack of documents (death certificate, clan minutes, affidavit of domicile, surety bonds) without recourse to the Primary Court's procedure? Held The High Court held that the District Court erred in law by applying the Probate and Administration of Estates Act Cap 352 to probate matters originating in the Primary Court, because Cap 352 does not govern Primary Court proceedings. The correct law for Primary Court probate and administration matters is the 5th Schedule to the Magistrates' Courts Act, Cap 11. The High Court held that the objections raised by the respondent regarding defects in the appellant's probate application (absence of death certificate, allegedly inauthentic clan minutes, lack of affidavit as to domicile, and absence of surety bonds) were matters that ought to have been raised and determined by the Primary Court during the hearing or by way of objection, not by the District Court in revision. Accordingly, the High Court found the District Court's revisional order to be a nullity because it was based on an inapplicable statute, and the High Court nullified that order and remitted the Primary Court record for the proceedings to continue from where they had ended. Order The decision of the District Court is nullified. The nullified proceedings of the Primary Court are to be restored and the record remitted to the Primary Court so that proceedings may continue from where they ended. Each party shall bear its own costs.

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