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ELCAllowedAmended Originating Summons dated 28/08/2024
Mwicigi & another (Both Suing as Legal Representatives of the Estate of Jane Gathoni Wang'ang'a alias Gathoni Wang'ang'a) v Chairman Kabete Land Board & another; Kihara (Interested Party) (Environment and Land Miscellaneous Application E009 of 2023) [2025] KEELC 8356 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#Jane Gathoni Mwicigi and Rose Njeri Kihara, sisters, filed an Amended Originating Summons under Order 31 and Order 37 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and the Trustees Act, seeking termination of a trust over parcel Kabete/Kanyariri/3762 held by their mother, Jemima Nini Kihara (the Interested Party), as trustee, together with orders compelling the Chairman of the Kabete Land Board to sign Land Board Consents and the Land Registrar Kiambu to effect sub-division, transfer or other dealings. The applicants are the administrator and a beneficiary of the estate of Jane Gathoni Wang'ang'a (deceased), whose estate appointed the Interested Party as trustee over the parcel, converted from the mother title Muguga/Kanyariri/152, to hold in trust for the beneficiaries. The title and official search confirm the holding in trust for the two Applicants in equal shares. The application was unopposed and supported by affidavits from all beneficiaries. Mogeni J framed a single issue: whether the Applicants deserved the reliefs sought. Applying the rule in Saunders v Vautier, the court held that beneficiaries who are all adults, of legal capacity, in agreement, and absolutely entitled may terminate a trust. Section 45(g) of the Trustees Act empowered the court to make a vesting order. Finding the trust document clear on equal apportionment and the application non-contentious, the court terminated the trust, ordered the 1st Respondent to sign Land Board Consents, directed the 2nd Respondent to effect dealings at the Applicants' and Interested Party's expense, and made no orders as to costs. Judgment delivered virtually at Thika on 1 December 2025.
Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicants are deserving of the reliefs sought in the Originating Summons application
Key legal issues
#01
Whether the trust over Kabete/Kanyariri/3762 should be terminated and the property vested in the beneficiaries
Holding
Yes; all beneficiaries are adults, in agreement, and absolutely entitled, and the trust document clearly directs equal shares, so the court operationalized the trust rather than create another.
Reasoning
The court applied the rule in Saunders v Vautier: all beneficiaries must agree, be of full age and capacity, and be absolutely entitled. Here the Applicants and Interested Party (the trustee, who is the Applicants' mother) all swore affidavits in support and there was no opposition. The official search and title confirmed the trustee held the land in trust for the Applicants in equal shares. Section 45(g) of the Trustees Act empowered a vesting order. The application was non-contentious and merited.
p. 4
Legal principles established
#- A beneficiary fully entitled to a trust may direct the trustee to transfer the trust property or terminate the trust, provided all beneficiaries are adults with legal capacity (rule in Saunders v Vautier).
- Where land is vested in a trustee and it appears expedient, the Court may make a vesting order under Section 45(g) of the Trustees Act.
Court orders
#- 1.The trust bestowed on the Interested Party is terminated and the property Kabete/Kanyariri/3762 is to be jointly owned with the 1st and 2nd Applicants as beneficiaries.
- 2.The 1st Respondent is ordered to sign Land Board Consents for sub-division, transfer, charge or any other dealings on Kabete/Kanyariri/3762 on behalf of the 1st and 2nd Applicants and the Interested Party.
- 3.The 2nd Respondent is directed to effect the sub-division, transfer or any other dealings on Kabete/Kanyariri/3762 in favour of the 1st and 2nd Applicants and the Interested Party, with the cost of the transactions borne by the Applicants and the Interested Party.
- 4.No orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
MO
majorityWrote the judgment
- Jurisdiction invoked
- Order 31 (Rules 1, 2) and Order 37 (Rules 1, 2, 3) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act (Cap 21), Sections 17, 18, 56 & 57 of the Trustees Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end I hold and find that the Amended Originating Summons Application dated 28/08/2024 is merited and I make the following disposal orders:
The trust bestowed on the Interested Party is hereby terminated and the property Kabete/ Kanyariri/3762 should now be jointly owned with the 1st and 2nd Applicants as beneficiaries.
a beneficiary who is fully entitled to a trust has the right to direct the Trustee to transfer the trust property to them or to terminate the trust.
I make no Orders as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwicigi & another (Both Suing as Legal Representatives of the Estate of Jane Gathoni Wang'ang'a alias Gathoni Wang'ang'a) v Chairman Kabete Land Board & another; Kihara (Interested Party) (Environment and Land Miscellaneous Application E009 of 2023) [2025] KEELC 8356 (KLR)", Case Analysis (2025). Amended Originating Summons dated 28/08/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8356/eng@2025-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.