Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Originating Summons E004 of 2023· [2023] KEELC 21721 (KLR)

In re Trusteeship for JMG & SMG (Minors)

Environment and Land Court of Kenya
23 November 2023
LGL. N. Gacheru
3,186 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court allowed a mother to sell land she holds in trust for her minor children because the sale clearly benefits them.

What this practically means

#

Executive summary

#
NNM, the ex parte applicant, brought an Originating Summons under Order 37 Rule 1(f) of the Civil Procedure Rules and Sections 13, 17 and 56 of the Trustees Act seeking leave to sell and transfer two land parcels, L.R. Loc.10/Wanjengi/1520 and 1521, registered in her name in trust for her two minor children, JMG and SMG. She explained that after her husband KGM died in 2016 and succession proceedings in Murang'a CM's Succession Cause No. 3 of 2019 concluded with a confirmed grant in June 2021, her late husband's relatives became hostile, preventing her from cultivating or utilising the trust parcels. She had agreed to sell the two parcels to Crane Hardware Ltd for Kshs 1,500,000 and to purchase a larger 1.736 hectare parcel at Euasonyiro-Suguroi Block IX/9X6 from Nickson Wanjohi Kamore. She lives with the minors on her own property in Muthaiga North, Nairobi, so the sale would not leave them destitute, and the beneficiaries raised no objection. Relying on Order 37 Rule 1(f) and Section 56(1) and (3) of the Trustees Act, Gacheru J held the court has discretionary power to authorise dealings with trust property for the beneficiaries' benefit, found the proposed investments prudent and in the minors' interests, and allowed the summons entirely with costs in the cause, directing the Applicant to deposit a copy of the new title in court once the purchase is finalised.

Key legal issues

#
01

Jurisdiction to approve sale of trust property

Holding

The court has jurisdiction under Order 37 Rule 1(f) of the Civil Procedure Rules and Sections 13, 17 and 56(1) and (3) of the Trustees Act to authorise a trustee's sale of land held in trust

Reasoning

Order 37 Rule 1(f) permits trustees to take out an originating summons for approval of a sale. Section 56(1) of the Trustees Act empowers the court to confer on trustees the necessary power to effect a transaction that is expedient but cannot be effected for want of power, and Section 56(3) allows a trustee to make such an application.

p. 5
02

Whether the sale is in the best interests of the minor beneficiaries

Holding

The proposed sale is prudent and in the interests of the beneficiaries; the summons is merited

Reasoning

The Applicant demonstrated she holds the two parcels in trust for her minor children, has a plausible reason to sell (hostility from relatives preventing utilisation), is purchasing a larger parcel, and owns a home in Muthaiga North where she lives with the minors, so the sale will not leave them destitute. The beneficiaries were informed and raised no objection.

p. 4

Legal principles established

#
  • The court has discretionary power under Section 56 of the Trustees Act to allow a trustee to deal with trust property in a manner beneficial to the beneficiaries

Court orders

#
  1. 1.The Originating Summons is allowed entirely with costs in the cause
  2. 2.Leave granted to the Applicant to sell and transfer the two parcels of land held in trust for the minors
  3. 3.The Applicant is directed to deposit a copy of the title for the purchased property, Euasonyiro-Suguroi Block IX/9X6, in Court after the transaction is finalised

Authorities

#

Legislation

  • Trustees Act, Cap 167 Laws of KenyaSections 4(1), 13, 17, 56(1), 56(3), 59
  • Land Act, 2012Section 27
  • Civil Procedure RulesOrder 37 Rules 1(f), 3, 4, 14

Cases cited (2)

  • DKK vs DKK (as Trustee of SBN)
    2021 eKLR

    Court may authorise sale of trust property under Sections 17(1) and 56 of the Trustees Act where the need to sell is satisfactorily explained

  • Re-Eunice Wanjeri Njenga
    ELC Misc Civil Suit No. 62 of 2013 (2013) eKLR

    General duties of trustees and the court's power under Sections 56 and 59 of the Trustees Act to authorise dealings and order costs from sale proceeds

Jurisdiction invoked
Order 37 Rule 1(f) of the Civil Procedure Rules and Sections 13, 17 and 56 of the Trustees Act, Cap 167

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "In re Trusteeship for JMG & SMG (Minors)", Case Analysis (2023). ELC Originating Summons E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21721/eng@2023-11-23

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