In re HK As the Mother and Trustee of JK - Minor (Applicant) (Environment and Land Miscellaneous Application E009 of 2024) [2024] KEELC 3812 (KLR)
The bottom line
#A Kenyan court allowed a mother, as trustee, to sell a small part of family land to pay her minor daughter's school fees, prioritising the child's best interests.
What this practically means
#Executive summary
#Key legal issues
#Whether a trustee may dispose of part of land co-owned with a minor for the minor's education
The court permitted and empowered the applicant to subdivide and dispose of 0.046 ha and register the remaining portions as proposed, with proceeds applied to the minor's education and family sustenance
The land was registered in the names of the mother and minor following the death of the husband/father. The minor and her sister are entitled to constitutional rights to education, care and protection. The trustee under Section 56 of the Trustee Act may dispose of trust property to raise money for furtherance of the trust, and the court may allow, vary or issue orders in furtherance of trust property management once an application is made by the trustee or a beneficially interested person.
Consent of co-owners and beneficiaries to severance and disposal
The court noted the absence of evidence that the two elder sons consented to the severance and disposal, but proceeded to grant the application in the best interests of the minor
The applicant was given an opportunity to avail the two elder sons before the court to demonstrate their consent, but they did not appear even after an adjournment. Notwithstanding this evidentiary gap, the court invoked the best interests of the minor under the Constitution and the court's equitable duty to safeguard the rights of Joy Kanana and Mercy Kendi in permitting the disposal.
Legal principles established
#- Where a title deed does not specify the nature of co-proprietors' rights, the presumption is that the property is held in common in equal shares, each having an undivided share of the whole
- Dealings with co-owned property require written consent of co-owners, which shall not be unreasonably withheld under Section 91(5) of the Land Registration Act
- The court has power under Order 37 of the Civil Procedure Rules and Section 56 of the Trustee Act to approve a sale of trust property, and a trustee may dispose of trust property to raise money for furtherance of the trust
Court orders
#- 1.The applicant is permitted and empowered to subdivide and dispose of a portion of 0.046 ha of LR No Ntimbiri/Abonyai/568
- 2.The applicant may register the other portions under her name and that of the minor as well as the rest of the beneficiaries as proposed
- 3.The applicant is authorized to apply the proceeds of the sale to educate the minor and her sister, Mercy Kendi
- 4.Any balance of the proceeds of the sale shall be applied in the family business for the sustenance of the minor
- Jurisdiction invoked
- Sections 27 of the Land Act, Section 47 of the Land Registration Act and Section 56 of the Trustee Act; Order 37 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re HK As the Mother and Trustee of JK - Minor (Applicant) (Environment and Land Miscellaneous Application E009 of 2024) [2024] KEELC 3812 (KLR)", Case Analysis (2024). Not stated in judgment (application dated 28.2.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3812/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.