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ELCAllowedExparte Originating Summons dated 2.11.2021· [2022] KEELC 1193 (KLR)

In re LKD [2022] KEELC 1193 (KLR)

Environment and Land Court
23 February 2022
CNC.K. NZILI
939 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 allowed a mother to sell a small portion of land held in trust for her child to pay school fees, subject to strict conditions.

What this practically means

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Executive summary

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The applicant, mother and trustee of minor LMM, brought an exparte originating summons dated 2.11.2021 under Article 53 of the Constitution and Order 37 of the Civil Procedure Rules seeking leave to excise and sell a portion of L.N. Abothuguchi/Kariene/5699, property left by her late husband and held in trust for the minor. She stated she was overwhelmed by school fees, a situation worsened by the Covid-19 pandemic, had identified a buyer, and intended to use the proceeds to develop the remaining property and meet the minor's educational needs. She testified and produced a title deed, search certificate, school fee structure and terminal reports. She did not comply with directions to file a further affidavit and submissions. The court framed two issues: whether the application was properly before it, and whether the applicant was entitled to the orders sought. Relying on Order 37 Rule 1, the Trustee Act (Sections 4, 11, 13, 17, 33, 34, 41, 56 and 59) and the Land Registration Act (Sections 24 and 25(2)), C.K. Nzili ELC J found the application properly before the court, the applicant having produced ownership documents, and held the proposal prudent and in the best interests of the minor. The originating summons was allowed with conditions on the use of proceeds and accounting to the court. No costs order was made.

Key legal issues

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01

Jurisdiction to approve sale of trust property held for a minor

Holding

The application was properly before the court, the applicant having produced documents of ownership

Reasoning

Order 37 Rule 1 permits a trustee to seek court approval for a sale or administration of trust property affecting a beneficiary. The applicant produced a title deed and search certificate showing she is the registered owner holding the property in trust for the minor. Sections 4, 11, 13, 17, 33, 34 and 41 of the Trustee Act empower a trustee to raise money by sale, and Section 56 vests authority in the court to approve. Ownership documents satisfied the court of its jurisdiction.

p. 2
02

Whether sale of a portion of the trust property serves the minor's best interests

Holding

The proposal was prudent and in the best interests of the minor, so the originating summons was merited

Reasoning

The applicant showed she was overwhelmed by school fees, worsened by the Covid-19 pandemic, and had identified a buyer. Disposing of a portion to develop the remainder and educate the minor aligned with Article 53 of the Constitution and the Children Act. The court held that trustee rights and duties exist to safeguard trust assets and prudently utilize proceeds, and found the proposal prudent and in the minor's best interests.

p. 2

Legal principles established

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  • A trustee may apply under Order 37 Rule 1 for determination of a question affecting the rights of a cestui que trust, including approval of a sale of trust property
  • Rights of a registered owner under Section 24 of the Land Registration Act are subject to the rights of a minor under Section 25(2)

Court orders

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  1. 1.The applicant is permitted to subdivide and sell a portion of not more than half a quarter of L.N. Abothuguchi/Kariene/5699
  2. 2.The applicant shall apply not more than half of the proceeds of the sale to improvements and investments on the remaining portion, payments of claims by and costs of the beneficiaries, and the legal costs of the sale and the originating summons
  3. 3.The applicant shall apply the remainder of the proceeds of sale to the payment of school fees of the minor
  4. 4.The applicant shall render true account and file with the court all sale agreements, valuation reports and transfers for the requisite approvals

Authorities

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Legislation

  • Constitution of KenyaArticle 53
  • Civil Procedure RulesOrder 37 Rules 1, 3; Rules 18, 19, 20
  • Trustee Act Cap 176 Laws of KenyaSections 4, 11, 13, 17, 33, 34, 41, 56, 59
  • Land Registration Act 2012Sections 24, 25(2)
  • Children Actnot specified

Cases cited (2)

  • In Re BMM
    [2016]
  • Re Eunice Wanjeri Njenga
    [2013] eKLR
Jurisdiction invoked
Article 53 of the Constitution and Order 37 of the Civil Procedure Rules; Trustee Act Cap 176

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 LKD [2022] KEELC 1193 (KLR)", Case Analysis (2022). Exparte Originating Summons dated 2.11.2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1193/eng@2022-02-23

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