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ELCPartially AllowedOriginating Summons dated 18th June 2019 (arising from Kiambu CMC Succession Cause No. 212 of 2007)· [2019] KEELC 380 (KLR)

In re Pauline Wawira Mbogwah(Applicant) [2019] KEELC 380 (KLR)

Environment and Land Court (Trusts jurisdiction under the Trustees Act) / High Court of Kenya
18 December 2019
BEB M Eboso
882 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court said adult children must receive their inherited land shares directly, while a minor's share can only be sold under strict court safeguards.

What this practically means

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Executive summary

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Pauline Wawira Mbogwah, administrator of the estate of the late Moses Mbogwah Mainah and trustee of Land Reference Number 37/262/18, applied by originating summons under Sections 13, 17 and 56 of the Trustees Act for leave to sell sixteen residential apartments erected on the suit property and to execute the necessary instruments of disposal on behalf of her three children, the beneficiaries: Damaris Wangari (27), Faith Muthoni (24) and Rejoice Wambui (13, a minor). The property had devolved to the three children from the estate distributed in Kiambu CMC Succession Cause No. 212 of 2007 and was registered in the applicant's name as trustee. She explained that sale proceeds would serve the beneficiaries' best interests, particularly the minor's upkeep. The court declined leave in respect of the two adult beneficiaries, holding there was no reason their shares could not simply be conveyed into their own names so they could deal with them as they wished. Regarding the minor, the court noted the applicant had not disclosed the funds required for the minor's upkeep, the value of the trust property, or her investment plans for the proceeds; but because the other two beneficiaries supported liquidation, leave was granted to liquidate the minor's share subject to strict safeguards. The court ordered conveyance of the adult beneficiaries' shares, continued trusteeship over the minor's share, and permitted disposal on condition that 80% of the minor's share be deposited in an interest-earning account in her name, withdrawable only with leave of the court, with 20% applied solely to her upkeep. There was no order as to costs.

Key legal issues

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01

Whether leave should be granted to sell the adult beneficiaries' shares of the trust property

Holding

Leave declined; the applicant must convey the adult beneficiaries' shares to them directly.

Reasoning

Damaris Wangari (27) and Faith Muthoni (24) are adults capable of managing their own shares. No justification was offered for keeping their shares in the applicant's name or selling on their behalf. The appropriate course is conveyance of their respective shares so they may deal with them as they wish.

p. 1
02

Whether the minor beneficiary's (Rejoice Wambui's) share may be liquidated

Holding

Liquidation allowed subject to conditions protecting the minor's interest.

Reasoning

The applicant did not disclose the amount needed for the minor's upkeep, the value of the trust property, or her investment plans for the proceeds. However, since the other two beneficiaries supported liquidation of the trust property, the court allowed the minor's share to be liquidated too, subject to 80% of her share being deposited in a court-controlled interest-earning account.

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Legal principles established

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  • Adult beneficiaries should have their shares of trust property conveyed into their own names rather than have a trustee sell on their behalf
  • A trustee seeking to dispose of a minor's share must disclose the funds needed, the value of the trust property and the intended investment of sale proceeds; the court may permit disposal subject to safeguards protecting the minor's interest

Court orders

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  1. 1.The applicant, Pauline Wawira Mbogwah, shall forthwith convey to Damaris Wangari Mbogwah (also known as Damaris Wangari Mbugua) and Faith Muthoni Mbugwah (also known as Faith Muthoni Mbugua) their respective shares in Land Reference Number 37/262/18 (Original Number 37/262/6/1)
  2. 2.The share of Rejoice Wambui Mbogwah (also known as Rejoice Wambui Mbugua) shall continue to be held in the name of Pauline Wawira Mbogwah as her trustee
  3. 3.Upon conveyance of the shares, the suit property may be disposed of on condition that 80% of the share due to Rejoice Wambui Mbogwah be deposited in an interest-earning account opened in Rejoice Wambui's name by the applicant, and such money shall not be withdrawn by the applicant except with the leave of the court
  4. 4.The remainder (20%) of Rejoice Wambui's share shall be used by the applicant solely for the upkeep of Rejoice Wambui Mbogwah
  5. 5.There shall be no order as to costs

Authorities

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Legislation

  • Trustees ActSection 13
  • Trustees ActSection 17
  • Trustees ActSection 56
Jurisdiction invoked
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 re Pauline Wawira Mbogwah(Applicant) [2019] KEELC 380 (KLR)", Case Analysis (2019). Originating Summons dated 18th June 2019 (arising from Kiambu CMC Succession Cause No. 212 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/380/eng@2019-12-18

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