PUBLIC TRUSTEE vs PUBLIC TRUSTEE [1983] KECA 115 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let a child's guardian take over the child's inheritance, ruling the child's welfare outweighs a relative's investment ambitions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant should replace the Public Trustee as trustee of the infant Kerembogo's fund and be given access to the capital of Shs.130,756.40
- 2.Whether the High Court judge erred in dismissing the appellant's application for trusteeship
Key legal issues
#Whether the appellant should be appointed trustee in place of the Public Trustee over the infant's fund
The appeal was dismissed and the High Court ruling dismissing the application affirmed; the application lacked merit.
There was no dispute that the fund belongs to the child and is lawfully held by the Public Trustee, and the appellant is merely guardian and custodian. The appellant's stated motive of gaining higher income from the estate did not make the child's welfare paramount. Releasing the capital risked its loss through misfortune, leaving the child without a living or education. The appellant provided no evidence of investment qualifications, and the existing arrangement was working satisfactorily.
Whether the court needed to resolve questions of Luhya customary law and the validity of the child's parents' marriage
No; those issues were irrelevant because beneficial ownership of the fund by the child was undisputed.
The court narrowed the dispute: with the funds indisputably belonging to Kerembogo and held legally by the Public Trustee, and the appellant established as guardian and custodian, the customary-law and marriage questions fell away. The appeal could be disposed of without traversing all seven grounds of appeal, which were described as irrelevant.
Costs of the appeal
Appeal dismissed with costs payable by the appellant personally, not out of the trust or its income; the lower court's each-party-bears-own-costs order left undisturbed for want of a cross-appeal.
Potter JA considered the High Court judge generous in ordering each party to bear its own costs and would not have been so generous, but since there was no cross-appeal the order could not be disturbed. To protect the infant's fund, the appellant was to bear the appeal costs personally rather than have them met from the trust estate.
Legal principles established
#- In matters concerning the trust fund of an infant, the welfare of the minor is the paramount consideration, and the existing satisfactory arrangement with the Public Trustee should not be disturbed by releasing the capital to a relative without evidence of financial competence
- An applicant to replace a professional trustee of an infant's fund must demonstrate qualifications, experience or success as a financial investor; a bare self-description is insufficient
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to be paid by the appellant personally, not out of the trust administered by the Public Trustee or its income
- 3.The order of the High Court that each party bear its own costs left undisturbed as there was no cross-appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Chesoni Ag. J.A. wrote the first judgment. He traced the history: Moses Changara died in 1979 leaving an infant son whose mother abandoned him; the appellant obtained custody, care and control in August 1982, then applied to displace the Public Trustee as trustee of the infant's fund of Shs.130,756.40. He held that since the funds indisputably belong to the child and are lawfully held by the Public Trustee, there was no need to explore Luhya customary law or the validity of the parents' marriage. The appellant's motive of gaining a higher return exposed the risk that the capital could be lost, leaving the child without a source of living and education; the application was devoid of merit and the appeal should be dismissed. He agreed with the costs order proposed by Potter JA.
Such motive does not make the welfare of the minor Kerembogo of paramount importance and exposes the danger of inherent in granting the application.p. 2
Wrote the judgment
Potter JA wrote a separate judgment. He noted the appellant had sworn he could maintain the child, yet within four months complained that Shs.16,000 paid for maintenance was insufficient, while offering no evidence of qualification or experience as a financial investor beyond describing himself as a businessman. He declined to find the application lacking in bona fides but said it was difficult to envisage any reasonable judge granting it. On costs, he considered the learned judge generous in ordering each party to bear its own costs, but as there was no cross-appeal that order would not be disturbed. He dismissed the appeal with costs, payable by the appellant personally and not out of the trust or its income.
This appeal is dismissed with costs. The costs of this appeal will be paid by the appellant personally, and will not be paid out of the trust administered by the Public Trustee or of the income therefrom.p. 3
Wrote the judgment
Hancox JA concurred separately, agreeing with Chesoni JA's reasoning and conclusions that the appeal should be dismissed, and with the costs orders proposed by Potter JA.
I have read the judgment of Chesoni, J.A. in draft and I fully agree with his reasoning and conclusions and that this Appeal should be dismissed.p. 3
- On appeal from
- High Court of Kenya at Kakamega
- Misc Civil Case App. No. 52 of 1982
- Jurisdiction invoked
- First appeal to the Court of Appeal from the ruling of the High Court (appeal from the ruling of the High Court of Kenya at Kakamega dated 18th January, 1983)
Relief refused
#Reversal of the High Court ruling and release of the trust capital to the appellant as trustee
The appellant's motive of investing for gain did not make the minor's welfare paramount; releasing the capital risked its loss, leaving the child without a livelihood or education, and the appellant offered no evidence of financial expertise
Greater generosity on costs than the High Court's order
Potter JA would have made a different costs order but was constrained because there was no cross-appeal against the order that each party bear its own costs
Costs
Appeal dismissed with costs; the costs of the appeal to be paid by the appellant personally and not out of the trust administered by the Public Trustee or the income therefrom; the High Court order that each party (Philemon and the Public Trustee) bear its own costs undisturbed as there was no cross-appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This appeal is dismissed with costs. The costs of this appeal will be paid by the appellant personally, and will not be paid out of the trust administered by the Public Trustee or of the income therefrom. As Hancox, J.A. and Chesoni Ag. J.A. agree, it is so ordered.
It would be too risky to accede to Philimon's request. The learned Judge wisely dismissed the application. The application was devoid of merit.
Apart form describing himself as a businessman, the appellant provided no evidence of his qualifications, experience or success as a financial investor.
Such motive does not make the welfare of the minor Kerembogo of paramount importance and exposes the danger of inherent in granting the application.
I have read the judgment of Chesoni, J.A. in draft and I fully agree with his reasoning and conclusions and that this Appeal should be dismissed.
Issues in the judgment
#The coram lists four judges (Law, Potter & Hancox, JJ.A. & Chesoni, Ag, J.A.) but only three judgments appear in the text; no separate judgment by Law, JA is included
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PUBLIC TRUSTEE vs PUBLIC TRUSTEE [1983] KECA 115 (KLR)", Case Analysis (1983). Civil Appeal No. 30 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/115/eng@1983-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.