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ELCStruck OutNot stated in judgment (Notice of motion dated 7/10/2021)· [2022] KEELC 3667 (KLR)

In re PMK (Minor) (Miscellaneous Application E039 of 2021) [2022] KEELC 3667 (KLR)

Environment and Land Court
5 May 2022
JKJ G Kemei
756 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Thika struck out an application to sell land held in trust for a minor because it was filed by notice of motion instead of an originating summons.

What this practically means

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Executive summary

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MWM, on her own behalf and on behalf of four co-applicants including PMK, a minor, filed a notice of motion dated 7/10/2021 seeking leave to sell land parcel Chania/Gituamba/T.XXX, which she holds in trust for the minor. She deposed that the family's residence on Chania/Kanyoni/XXX had been compulsorily acquired by the Government and compensated, and that compensation monies had been used to purchase Chania/Mataara/XXXX, held in trust for herself and the minor. She sought to sell the suit land to raise money to relocate and construct a house on the newly acquired parcel, relying on sections 13, 17 and 56 of the Trustees Act, section 3A of the Civil Procedure Act, and the cases of In the Matter of GW & Another (Minors) (2016) eKLR and Re Eunice Wanjeri Njenga (2013) eKLR. The court identified competency as a threshold matter, holding that Order 37 rule 1 of the Civil Procedure Rules, 2010 requires applications of this nature - including approval of a sale or other transaction affecting trust property - to be commenced by originating summons returnable before a judge in chambers. Because the applicants had used a notice of motion instead, the court found the application incompetent, declined to consider its merits, and struck it out with no orders as to costs. Judgment was delivered virtually at Thika on 5 May 2022 by J G Kemei, Judge.

Key legal issues

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01

Competency of the application

Holding

The application was incompetent because it was brought by notice of motion instead of the originating summons required by Order 37 rule 1

Reasoning

Order 37 rule 1 governs applications by trustees and persons interested in trusts for relief such as the approval of a sale, purchase, compromise or other transaction, and prescribes originating summons returnable before a judge in chambers as the correct mode of commencement. The applicants' use of a notice of motion was contrary to that provision, rendering the application incompetent without the court needing to consider its merits.

p. 3
02

Merits of the application to sell land held in trust for a minor

Holding

Not determined, as the application failed on competency

Reasoning

The court stated that the main issue was whether the application was merited but, having found the application procedurally incompetent at the threshold, struck it out without engaging with the merits of the proposed sale of the minor's land or the Trustees Act provisions relied upon.

p. 2

Legal principles established

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  • Applications for the approval of a sale or other transaction affecting trust property, including land held in trust for a minor, must be commenced by originating summons under Order 37 rule 1 of the Civil Procedure Rules, not by notice of motion

Court orders

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  1. 1.The notice of motion dated 7/10/2021 is struck off with no orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 rule 1
  • Trustees Actsections 13, 17 and 56
  • Civil Procedure Actsection 3A

Cases cited (2)

  • In the Matter of GW & Another (Minors)
    (2016) eKLR
  • Re Eunice Wanjeri Njenga
    (2013) eKLR
Jurisdiction invoked
Order 37 rule 1 of the Civil Procedure Rules, 2010; sections 13, 17 and 56 of the Trustees Act; section 3A of the Civil Procedure 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 PMK (Minor) (Miscellaneous Application E039 of 2021) [2022] KEELC 3667 (KLR)", Case Analysis (2022). Not stated in judgment (Notice of motion dated 7/10/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3667/eng@2022-05-05

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