HANNAH WANJA v WAMBUI GACHINGU [2010] KEHC 3906 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

Succession Cause 326 of 2008

HANNAH WANJA……….……………………….APPLICANT

VERSUS

WAMBUI GACHINGU.……………………….RESPONDENT

RULING

A temporary grant of letters of administration intestate was granted to the applicant and two others in respect of the deceased person’s estate in this cause on 23rd October, 2008. The applicant now brings the instant application for an order that the petitioners be authorized to collect rent from three (3) shops comprised in L.R. No.453/2 Nakuru Municipality which was purchased and developed jointly by the deceased and his two brothers. The applicant further seeks that the respondent, Wambui Gachingu, the widow of one of the deceased person’s brothers be restrained from collecting rent from the said property.

In reply, the respondent has denied collecting rent from the property in question but admits collecting rent from her deceased husband’s property known as L.R. Nakuru Municipality Block 2/309.

I have considered the foregoing averments. The applicant has deposed that the suit property was purchased and developed jointlyby the deceased in this cause and his two brothers, Harun Gachingu and another whose name has not been disclosed. It is further deposed that two of the three brothers, the deceased herein and Harun Gachingu are now deceased and that the brother who is alive is in support of this application.

First and foremost, the basis of this claim is an indenture dated 10th September, 1969 made between Gachingu Kamau as the Vendor and the said Gachingu Kamau, Nganga son of Kamau and Kimani son of Kamau as the purchasers. It was in respect of a property described as follows:

“Plot Number Thirty-Three of Section Twenty –Two (Land Reference Number 453/2) in Nakuru Municipality”

at a consideration of Kshs.4,000/=.

First the indenture identifies three persons as the purchasers, namely Gachingu Kamau who incidentally is also the vendor, Nganga son of Kamau and Kimani son of Kamau. There is no evidence that Kimani son of Kamau is the same person as the deceased in this cause, John Kimani Mahugu. Secondly, an indenture per se cannot be proof of ownership of a property.

Thirdly, the third brother to the deceased who is alive and is said to be in support of this application has not sworn an affidavit to confirm that support.

The fourth point is that there is no evidence that the respondent is the legal representative of her late husband, Harun Gachungi, to qualify to be sued.

Finally, the respondent having asserted that she has never collected rent from No.453/2, it was incumbent upon the applicant to rebut this by presenting evidence that the respondent has indeed been collecting rent from the suit property or to link the two properties.

I may also add that the suit property has not been listed in the petition in this cause as the deceased person’s property.

For these reasons, the application fails and is dismissed with costs.

Dated, Signed and Delivered at Nakuru this 22nd day of January, 2010.

W. OUKO

JUDGE