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ELCPartially AllowedOriginating Summons dated 22nd July 2015· [2016] KEELC 1223 (KLR)

In the Matter of GW & another (Minors) [2016] KEELC 1223 (KLR)

High Court of Kenya
1 April 2016
MGMARY M. GITUMBI
2,018 words in judgment
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The bottom line

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A Kenyan court allowed trustees to sell land belonging to orphaned minors for their upkeep, but only for the parcel actually registered in their names.

What this practically means

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Executive summary

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The Applicants, legal guardians and trustees of two minors (G W and T W) who are beneficiaries of the estate of Grace Wairimu Kihara, brought an Originating Summons under Order 37 Rule 1(f) of the Civil Procedure Rules, 2010 and section 3A of the Civil Procedure Act seeking court approval to transfer and sell the minors' interest in two parcels of land: Dagoretti/Uthiru/T.359 and L.R. No. 13460/11 Lang'ata. The grant of letters of administration was confirmed on 11th March 2014. The minors' mother, Esther Wangari Kihara, died before the succession cause concluded, and the Legal Guardians, appointed in Nakuru Children Cause No. 9 of 2012, sought to sell the properties to establish a fund for the minors' schooling, medical expenses and general upkeep, the minors having been informed and raising no objection. Justice Mary M. Gitumbi framed a single issue: whether the court should approve the sale of the two parcels. On the first parcel, registered in the names of the Applicants/trustees, the court found the power of sale conferred by sections 13, 17 and 56 of the Trustees Act and held the proposed fund was in the minors' interest. However, the Certificate of Title for the second parcel showed registered proprietors other than the Applicants, so no sale order could issue in respect of it. The court allowed the Originating Summons in part, empowering the Applicants to sell Dagoretti/Uthiru/T.359 and directing that one-third of the proceeds be applied in establishing a fund for the minors' school fees, medical expenses and general upkeep.

Key legal issues

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Whether the court should approve the sale of trust land to realize the minors' share for their upkeep

Holding

The sale of Dagoretti/Uthiru/T.359 was approved, with one-third of proceeds directed to a fund for the minors; the second parcel was excluded as it was not registered in the Applicants' names

Reasoning

The Applicants were registered proprietors of the first parcel and thus trustees with power of sale under sections 13 and 17 of the Trustees Act. Section 56 empowers the court to authorize dealings with trust property where expedient. The plan to establish a fund for the minors' school fees and medical expenses was in their interest, and the minors, having been informed, raised no objection. The second parcel, registered in the names of third parties, could not be ordered sold.

p. 4

Legal principles established

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  • The court may, under section 56 of the Trustees Act, confer upon trustees the necessary power to effect a sale of trust property where no such power exists under the trust instrument or law, if the transaction is expedient
  • Trustees can only dispose of property registered in their names; no order for sale can be made over property not vested in them

Court orders

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  1. 1.That the Applicants be and are hereby permitted and empowered by the Court to sell the parcel of land known as Dagoretti/Uthiru/T.359
  2. 2.That the Applicants shall apply 1/3rd of the sale proceeds thereof in establishing a fund for the minors for use in paying their school fees, medical expenses and general upkeep

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rule 1 (f)
  • Civil Procedure Actsection 3A
  • Trustee Actsection 13
  • Trustee Actsection 17(1)
  • Trustee Actsection 56
  • Trustee Actsection 59
Jurisdiction invoked
Order 37 Rule 1(f) of the Civil Procedure Rules, 2010 and sections 3A of the Civil Procedure Act; sections 13, 17 and 56 of the Trustees Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In the Matter of GW & another (Minors) [2016] KEELC 1223 (KLR)", Case Analysis (2016). Originating Summons dated 22nd July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1223/eng@2016-04-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.