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ELCDismissedOriginating Summons dated 28/02/2025· [2025] KEELC 4318 (KLR)

AW & another v AW & another (As Trustees of AKM & WM) (Environment & Land Case E034 of 2025) [2025] KEELC 4318 (KLR)

Environment and Land Court
10 June 2025
AKA. Y. Koross
1,358 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Machakos court refused to let a family sell inherited land for children's school fees because they hadn't formally transferred the title into their names first.

What this practically means

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Executive summary

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The applicants, the mother and uncle of two minors (AKM and WM), brought an ex parte originating summons seeking the court's authority to sell and transfer land reference no. 12715/xxxx (Original No. 12715/xxxx/21), registered in the name of the late Jackson N. Musomba, and to apply the proceeds to costs of sale, the children's school and university fees, and investment of the balance for their education. The applicants held a confirmed grant of letters of administration (Nairobi High Court Succession Cause No. 2180 of 2015, confirmed 19/06/2019) and a further rectified grant dated 14/02/2022 directing them to hold the suit property in trust for themselves and the children. The matter was canvassed by written submissions, and the court framed a single issue: whether it should approve the sale. Restating Sections 13, 17 and 56 of the Trustee Act and Order 37 Rule 1 of the Civil Procedure Rules, the court found that the copy title still showed registration in the deceased's name. Read with Section 61(2)(a) of the Land Registration Act, the applicants, as personal representatives, were required first to perfect the trust registration by transfer by transmission before moving the court. Having failed to prove such perfection, the application was premature. Although the court sympathised with the children and observed that the case would otherwise have been straightforward, it dismissed the originating summons with the applicants bearing their own costs.

Key legal issues

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Whether the court should approve the sale of the suit property to meet the children's education expenses

Holding

The originating summons was dismissed because the applicants had not perfected registration of the trust; the title remains in the deceased's name.

Reasoning

The court restated the framework in Sections 13, 17 and 56 of the Trustee Act and Order 37 Rule 1 of the Civil Procedure Rules. It observed that although the confirmed and further rectified grants direct the applicants to hold the property in trust, the copy title still shows registration in the deceased's name. Read with Section 61(2)(a) of the Land Registration Act, the applicants as personal representatives had to perfect the trust by transfer by transmission first. Absent proof of such perfection, the application was premature.

p. 3

Legal principles established

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  • Trustees/personal representatives required to hold property in trust must perfect the registration of the trust by transfer by transmission before approaching the court for leave to sell, under Section 61(2)(a) of the Land Registration Act
  • Under Section 56 of the Trustee Act the court may confer on trustees a power of disposition the trust instrument or law does not provide, where the transaction is expedient

Court orders

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  1. 1.The OS dated 28/02/2025 is dismissed
  2. 2.The applicants to bear their own costs
Jurisdiction invoked
Sections 13, 17 and 56 of the Trustee Act; Order 37 Rule 1 of the Civil Procedure Rules

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, "AW & another v AW & another (As Trustees of AKM & WM) (Environment & Land Case E034 of 2025) [2025] KEELC 4318 (KLR)", Case Analysis (2025). Originating Summons dated 28/02/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4318/eng@2025-06-10

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