In re Estate of Christopher Nathaniel Waudo Siganga (Deceased) [2017] KEHC 9827 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKIAMEGA

SUCCESSION CAUSE NO.654 OF 2009

IN THE MATTER OF THE ESTATE OF CHRISTOPHER NATHANIEL  WAUDO SIGANGA – DECEASED

AND

EMMY NAWANJAYA SIGANGA.........................PETITIONER/APLICANT

VERSUS

ELIUD LUSINDE SINGANGA..................1ST OBJECTOR/RESPONDENT

DAVE LUNGAHO SINGANGA................ 2ND OBJECTOR/RESPONDENT

RULING

1. The petitioner has filed an application dated 22nd May 2017 seeking for orders that

1. Spent

2. That the honourable court be pleased to remove the properties known as Motor Vehicle Registration No.KAL 882D, Toyota Hilux, and plot No. Navakholo Market from the schedule of assets herein.

3. That this honourable court be pleased to order and compel the 2nd objector, Dave Lungano Siganga to surrender motor vehicle Registration No. KAL 882D, Toyota Hilux, to the petitioner/applicant, Emmy Nawanjaya Siganga, who is the duly registered owner.

2. The grounds in support of the application are that the petitioner erroneously listed the aforestated property as part of the estate of the deceased when they infact belonged to the petitioner.  The application was supported by the affidavit of the petitioner where she depones that the motor vehicle was bequeathed to her by her father, the deceased, before the deceased died.  That the motor vehicle is registered in her name as shown by a photocopy of the log book attached to the application.  She stated that the 2nd objector has impounded the vehicle and has refused to release it to her.  She further deponed that the subject plot was registered in her name until when she transferred it to one Isaac Simiyu.

3. The respondents have not responded to the application despite being given time on the 19th May 2017 to do so.  The court had also directed that the application be disposed of by way of written submissions but the advocates for the respondents did not file any.

4. The advocates for the petitioner Kutto & Kaira Nabasenge Advocates submitted that the subject property does not form the free property of the deceased and as such cannot be subject of distribution by this court.  The advocates relied on the case of Romana Chepkemboi Yego & Another vs Jane Wanjiruy Njuguna & Another (2017) eKLR on the definition as to what constitutes a deceased’s property.

5. I have perused the court file and considered the affidavits and depositions before court.  The deceased herein died on the 17th March, 2009.  The photocopy of the log book attached herein indicates that the subject motor vehicle was registered in the name of the petitioner on 19th February 1999.  That was more than 10 years before the death of the deceased.  This evidence has not been controverted.  The registration of a motor vehicle in the name of a person is prima facie evidence of proof of ownership of the vehicle.  It is therefore my considered view that the subject motor vehicle belonged to the petitioner way before the deceased died.  The motor vehicle does not form part of the estate of the deceased.

6. When the petitioner filed this petition she did file with her depositions a letter dated 14th April 2008 from the County clerk, County Council of Kakamega addressed to “To whom it may concern.”  The letter states that:-

“This is to confirm to you that Plot No.4 on Navakholo market belongs to Mr Nathaniel Siganga and he has all the rights to carry out any business on the plot.

Kindly accord him any necessary assistance.

7. The petitioner has not filed any documents to show that at the time that the deceased died in March 2009, the plot had changed ownership to her.  When the petitioner filed the succession cause in the same year, 2009, she indicated that the plot formed part of the estate of the deceased.  There is no evidence to the contrary.  It is therefore my view that the plot forms part of the estate of the deceased.

8. In the foregoing the motor vehicle Reg No. KAL 882D Toyota Hilux was erroneously listed as part of the estate of the deceased and should be struck out from the schedule of assets of the deceased’s estate.  The motor vehicle belongs to the petitioner.  On the other hand there is no evidence that plot No.4 Navakholo market belonged to the petitioner at the time of the death of the deceased.  The prayer to remove the plot from the list of the schedule of assets of the property of the deceased is declined.  Prayers 2 and 3 of the notice of motion dated 22nd May, 2017 in respect to the motor vehicle are allowed while prayer 2 in respect to plot No.4 Navakholo market is declined.

Costs in the cause.

Delivered, dated and signed at Kakamega this 12th day of October, 2017.

J. NJAGI

JUDGE

In the presence of:

None........................................................for petitioner/applicant

None........................................................for objectors/respondents

George.....................................................court assistant

Petitioner  .............................................. absent

Respondents............................................absent