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ELCPartially AllowedHCC (OS) dated November 29, 2022 (Embu)· [2023] KEELC 487 (KLR)

In re JNN (Applicant) (Environment and Land Miscellaneous Application E032 of 2022) [2023] KEELC 487 (KLR)

Environment and Land Court
26 January 2023
AKA.K. Kaniaru
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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An Embu court allowed a father to sell a quarter-acre of family trust land to pay his children's school fees, prioritising their education.

What this practically means

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Executive summary

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JNT, the registered proprietor of land parcel No Ngandori/Kirigi/xxxx held in trust for himself and his three minor children, moved the court by originating summons dated November 29, 2022, brought under rules 2, 3 and 4 of the Trustee Rules and Order 37 rule 1(f) of the Civil Procedure Rules. He sought leave to excise and sell a quarter-acre portion of the trust land, with proceeds applied to subdivision and transfer costs and to the school fees and education of his three school-going children, who had been sent home for non-payment of fees and barred from registering for examinations. The applicant, a single father and casual labourer formerly employed by a Chinese company that collapsed during the Covid-19 pandemic, filed a search certificate, birth certificates, a land control board letter of no objection, a sale agreement, school receipts and a head teacher's letter confirming one child's studentship and need. The application was canvassed by written submissions and was unopposed. The court traced the procedure under Order 37 rule 1, the trustee's power under section 17 of the Trustee Act and the court's power under section 56, and applied Article 53(2) of the Constitution and section 8(1)(a) of the Children's Act, No 29 of 2022. Finding the applicant responsible and free of ulterior motives, and education to be in the children's best interests, the court allowed the summons in terms of prayer 2 and made no order as to costs, the matter having been prosecuted exparte.

Key legal issues

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01

Procedure for approval of a transaction involving trust property

Holding

The proper route is an originating summons under Order 37 rule 1(f) of the Civil Procedure Rules, which permits approval of a sale, purchase, compromise or other transaction.

Reasoning

Order 37 rule 1 permits executors, administrators, trustees and persons interested under a deed or instrument to take out an originating summons returnable before a judge in chambers for determination of questions including approval of a sale or other transaction. The applicant correctly moved by originating summons seeking the court's approval of the intended sale of trust land.

p. 3
02

Court's power to authorise dealings in trust property

Holding

Section 56 of the Trustee Act empowers the court to authorise a trustee to deal in trust property and to direct the manner in which money raised may be expended.

Reasoning

Section 56 of the Trustee Act enables the court to authorise the trustee generally or for a specific purpose to deal in trust property, impose conditions, direct how money raised is expended, and to vary or rescind its orders. Applications may be made by trustees or persons beneficially interested under the trust.

p. 3
03

Best interests of the child

Holding

The summons was allowed because the applicant demonstrated that the sale was for the education of the minors, which is in their best interests.

Reasoning

Applying Article 53(2) of the Constitution and section 8(1)(a) of the Children's Act, No 29 of 2022, the court found the applicant a responsible father without ulterior motives, whose minors were in dire need of school fees which he could not afford. Educating the minors is one of their best interests, justifying approval of the sale.

p. 4

Legal principles established

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  • A trustee may be authorised by the court to raise money needed for a trust purpose by sale of part of the trust property under section 17 of the Trustee Act.
  • In every matter concerning a child, the child's best interests are of paramount importance.

Court orders

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  1. 1.Leave granted to the applicant to excise and sell a portion measuring 1/4 acre out of land parcel No Ngandori/Kirigi/xxxx, with the proceeds applied to the costs of subdivision and transfer and to the payment of school fees and education of the minors BK, EMN and JMN (prayer 2)
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 rule 1 (and rule 1(f))
  • Trustee Act (Cap 167)Section 17(1)
  • Trustee Act (Cap 167)Section 56
  • Trustee RulesRules 2, 3 and 4
  • Constitution of Kenya, 2010Article 53(2)
  • Children's Act, No 29 of 2022Section 8(1)(a)

Cases cited (2)

  • VB v VB (as trustees of CADP) HCC No 2 of 2019 (OS)
  • Manesseh Mwangi Elijah Kihara & 4 others, ELC Misc No 197 of 2015
Jurisdiction invoked
Order 37 rule 1(f) of the Civil Procedure Rules, 2010; rules 2, 3 and 4 of the Trustee Rules; sections 17 and 56 of the Trustee Act (Cap 167)

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 JNN (Applicant) (Environment and Land Miscellaneous Application E032 of 2022) [2023] KEELC 487 (KLR)", Case Analysis (2023). HCC (OS) dated November 29, 2022 (Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/487/eng@2023-01-26

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