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ELCPartially AllowedELC Originating Summons dated December 19, 2022 (Embu)· [2023] KEELC 615 (KLR)

In re SNM (As Trustee of KM & DMN (Minors) (Miscellaneous Application E033 of 2022) [2023] KEELC 615 (KLR)

Environment and Land Court
25 January 2023
1,777 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a widowed mother, as trustee for her minor children, to sell family land to pay school fees and complete their house.

What this practically means

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Executive summary

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By originating summons dated December 19, 2022, Susan Njoki Mwangi, a widow and trustee of two parcels of land (Gaturi/Weru/13044 and Gaturi/Weru/13045) held for her two minor children, sought leave to sell and transfer the parcels so the proceeds could meet the children's educational needs and complete a stalled residential house. The application, anchored on Article 53 of the Constitution, Order 37 of the Civil Procedure Rules and Sections 2, 3 and 4 (as pleaded; the court considered Sections 13, 17 and 56) of the Trustee Act, was canvassed by written submissions and supported by title documents, school fee structures, photographs of the construction, and draft sale agreements. The court analysed the Trustee Act provisions conferring power on trustees to sell trust property and to raise capital money, and Section 56, which empowers the court to confer a missing power where a transaction is expedient. It held that the proper vehicle is an originating summons under Order 37 Rule 1(f). 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 loving, responsible mother with no ulterior motive, acting in the children's best interests. The originating summons was allowed in terms of prayer (ii); no order was made on costs because the application was uncontested. Judgment delivered at Embu on January 25, 2023.

Key legal issues

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01

Whether the court may authorise a trustee to sell trust property to meet the needs of minor beneficiaries

Holding

Yes. Sections 13, 17 and 56 of the Trustee Act empower trustees to sell trust property and empower the court to confer that power where the trust instrument is silent; the application lies by originating summons under Order 37 Rule 1(f).

Reasoning

The court examined Section 13, which confers on a trustee power to sell trust property; Section 17(1), enabling trustees to raise capital money by sale or mortgage for purposes authorised by the trust or by law; and Section 56, which allows the court to confer a missing power where the transaction is expedient. The proper procedural vehicle is an originating summons under Order 37 Rule 1, particularly sub-rule (f) covering approval of a sale. The applicant, a trustee for her children, followed this route.

p. 2
02

Whether the intended sale serves the best interests of the children

Holding

Yes. The applicant demonstrated that the sale proceeds would pay school fees and complete a house, with no ulterior motive; the application was allowed in terms of prayer (ii).

Reasoning

Guided by 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 loving and responsible widow and sole breadwinner who would not sell the properties if she had other means. She produced ownership documents, school fee structures, photographs of the stalled construction, and sale agreements. The court found she was acting in the children's best interests and not driven by any ulterior motive.

p. 4

Legal principles established

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  • A trustee who lacks power under the trust instrument or law may apply to the court under Section 56 of the Trustee Act for the court to confer the necessary power to deal with trust property where the transaction is expedient.
  • An application for the court's approval of a sale of trust property should be brought by way of originating summons under Order 37 Rule 1(f) of the Civil Procedure Rules.
  • In every matter concerning a child, the child's best interests are of paramount importance.

Court orders

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  1. 1.The originating summons is allowed in terms of prayer (ii): the applicant is granted leave to sell and transfer land parcels Nos. Gaturi/Weru/13044 and Gaturi/Weru/13045, with proceeds to be applied towards the educational needs of the minors and development and completion of a residential house
  2. 2.No order as to costs since the application was prosecuted exparte

Authorities

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Legislation

  • Constitution of KenyaArticle 53
  • Trustee Act (Cap 167, Laws of Kenya)Section 13
  • Trustee Act (Cap 167, Laws of Kenya)Section 17(1)
  • Trustee Act (Cap 167, Laws of Kenya)Section 56
  • Civil Procedure Rules, 2010Order 37 Rule 1
  • Children's ActSection 8(1)(a)

Cases cited (5)

  • VB v VB (as Trustee of CADP): HCC No 2 of 2019 (O.S.)
  • Malindi And Manesseh Mwangi Elijah Kihara & 4 Others
    ELC Misc Case No 197 of 2015, Milimani, Nairobi
  • RE Eunice Wanjeri Njenga
    [2013] eKLR
  • GW & Another (minor)
    2016 eKLR
  • Purity Ndegi Mugo
    ELC No E028 of 2022 (O.S.), Embu
Jurisdiction invoked
Article 53 of the Constitution of Kenya, Order 37 of the Civil Procedure Rules, Sections 13, 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 SNM (As Trustee of KM & DMN (Minors) (Miscellaneous Application E033 of 2022) [2023] KEELC 615 (KLR)", Case Analysis (2023). ELC Originating Summons dated December 19, 2022 (Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/615/eng@2023-01-25

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