In re CBD & another (Minors) (Environment and Land Miscellaneous Application E008 of 2024) [2024] KEELC 4547 (KLR)

Environment and Land Court

6 June 2024

ECE.C. CHERONO

1,335 words in judgment

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The bottom line

Kenya's Environment and Land Court confirmed that selling land co-owned with your children requires court approval, which was granted here for the minors' benefit.

What this practically means

Executive summary

RBW, the ex-parte applicant, filed an Originating Summons dated 9th May 2024 under Section 56(1) and (3) of the Trustees Act and Order 37 Rule 1(f) of the Civil Procedure Rules seeking leave to sell land parcel E.Bukusu/S.Kanduyi/XXXX, registered in her joint names with her two minor children CBD and TAHD. She deposed that she bought the land in 2020, and had entered a sale agreement for Kshs 1,750,000, receiving a Kshs 100,000 deposit, and intended to use the proceeds to develop another parcel in Kajiado/Kisaju by constructing income-generating rental houses for the welfare of the minors and herself. Her spouse, FDO, swore a further affidavit giving full spousal consent to the transaction. The court framed a single issue: whether it had jurisdiction to give consent, and if so, whether the requisite grounds were established. Relying on Section 27 of the Land Act and Sections 25, 47, 91(2) and 93 of the Land Registration Act, the judge held that minors registered as co-proprietors acquire proprietors' rights but cannot transact or give consent, and that joint registration without indicated shares is deemed tenancy in common in equal shares. Satisfied that the sale was in the minors' best interest, the court on 6th June 2024 allowed the Originating Summons as prayed, granting the applicant leave to sell the suit land.

Key legal issues

Jurisdiction to grant leave to dispose of minors' interest in land

Holding

The court has jurisdiction under the Trustees Act and civil procedure provisions to give consent for sale of land in which minors hold an interest

Reasoning

Section 47 of the Land Registration Act bars minors from dealing with land, and minors registered as joint proprietors cannot transact or consent. The court, exercising its protective jurisdiction over minors' property under the Trustees Act, may authorise disposal where it serves the minors' best interests. The applicant, having acquired the land and included the minors voluntarily, sought leave to sell to develop other property for their welfare, and her spouse consented.

p. 3

Nature of minors' co-proprietorship

Holding

Registration as joint tenants without indicated shares is deemed tenancy in common in equal shares

Reasoning

The applicant and the two minors were registered as joint proprietors without indication of shares. Under section 91(2) of the Land Registration Act, such registration is deemed tenancy in common in equal shares, and as tenants in common they may have the land partitioned under section 93 of the same Act. This framing informed the court's satisfaction that the sale would be in the minors' best interest.

p. 3

Legal principles established

Minors registered as proprietors of land hold the rights of a proprietor upon registration and cannot deal with or dispose of land; a disposition of a minor's interest requires court leave
A child is capable of holding title to land through a trustee and is in the same position as an adult regarding liability and litigation to the land

Court orders

1.The Originating Summons application dated 9th May 2024 is allowed as prayed
2.The applicant be granted leave to sell land Title No. E.Bukusu/S.Kanduyi/XXXX
3.Such other orders as the court deems fit and just

Authorities

Legislation

Trustees ActSection 56(1) and (3)
Civil Procedure RulesOrder 37 Rule 1(f)
Civil Procedure ActSections 1A, 1B and 3A
Land ActSection 27
Land Registration ActSections 25, 47, 91(2), 93
Matrimonial Property ActSections 6 and 7

Jurisdiction invoked: Section 56(1) and (3) of the Trustees Act, Order 37 Rule 1(f) of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re CBD & another (Minors) (Environment and Land Miscellaneous Application E008 of 2024) [2024] KEELC 4547 (KLR)", Case Analysis (2024). Originating Summons dated 9th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4547/eng@2024-06-06

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