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ELCAllowedOriginating Summons dated 21/03/2025· [2025] KEELC 8655 (KLR)

In re JKG (Minor) (Miscellaneous Application E009 of 2025) [2025] KEELC 8655 (KLR)

Environment and Land Court
10 December 2025
MOMOGENI
1,859 words in judgment
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The bottom line

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What this practically means

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Executive summary

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HKN, a widow and co-trustee with her sister RWG of land held in trust for two minors, BNK and JKG, under a Certificate of Confirmation of Grant in Succession Cause No. E3888 of 2022, filed an Originating Summons seeking leave to sell the trust property, Nguirubi/Ndiuni/1XXX1, to fund valuation and transfer costs, school fees for the minor at St. XXXX Academy, and investment of the balance in a call account for the minor's future education. She also sought lifting of a restriction on the property. The application was brought under Article 53(2) of the Constitution, the Children's Act, Order 37 of the Civil Procedure Rules and various provisions of the Trustee Act. The sole issue identified by the court was whether it had jurisdiction to authorise the sale of trust land held for minors. The court held that the Originating Summons is the proper instrument for trustees seeking authority to deal with trust property where the power was not conferred by the trust instrument, and that Section 56 of the Trustee Act empowers the court to confer the necessary power on trustees. Noting that BNK had attained majority and consented, that the co-trustee RWG supported the application, and that the applicant was a widowed, unemployed sole breadwinner, the court found the sale was in the minors' best interest. The Originating Summons was allowed with authority granted to sell the property; proceeds were directed to valuation and transfer costs, school fees, and a jointly-held call account. Costs were in the cause.

Key legal issues

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01

Jurisdiction to authorise sale of trust land held for minors

Holding

The court has jurisdiction under Order 37 Rule 1 of the Civil Procedure Rules and Section 56 of the Trustee Act to confer on trustees the power to sell trust property where no such power exists in the trust instrument

Reasoning

The property was transferred to the applicants to hold in trust for minors under a confirmed grant in a succession cause. The originating summons is the proper instrument for trustees seeking court authorisation to deal with trust property where the power was not conferred by the trust instrument. Section 56(1) permits the court to confer the necessary power where the transaction is expedient, and Section 17 permits raising money by sale.

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02

Best interest of the minors as justification for sale

Holding

Sale of the trust property to fund the minors' education and related needs is in the best interest of the children and justifies the order

Reasoning

The applicant, a widowed and unemployed sole breadwinner, needs funds for the minors' education. The adult child BNK consented by affidavit, and the co-trustee RWG supported the application. The court found the purposes of the sale — education and incidental needs of the minors — aligned with the best-interest principle.

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Legal principles established

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  • Where a transaction concerning trust property is expedient but the trustees lack power under the trust instrument or law, the court may confer the necessary power on the trustees under Section 56(1) of the Trustee Act, on such terms and conditions as it thinks fit
  • An application under Section 56 of the Trustee Act may be made by the trustees or any person beneficially interested under the trust
  • A trustee may raise money required for purposes authorised by the trust by sale, conversion, calling in or mortgage of the trust property

Court orders

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  1. 1.Leave and authority granted to the Applicant and the joint Trustees HKN and RWG to sell parcel of land known as Nguirubi/Ndiuni/1XXX1 (the suit property)
  2. 2.Proceeds of sale to be applied to: costs incidental to valuation of the property; costs incidental to transfer of the suit property; payment of school fees for the minor at St. XXX Academy; investment of the balance in a call account held jointly by the joint Trustees for the minor's future education
  3. 3.Costs of the Application shall be in the cause
Jurisdiction invoked
Order 37 Rule 1 of the Civil Procedure Rules and Section 56 of the Trustee Act (Cap 167); application also cited Article 53(2) of the Constitution and Section 8(1)(a) of the Children's Act

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, "In re JKG (Minor) (Miscellaneous Application E009 of 2025) [2025] KEELC 8655 (KLR)", Case Analysis (2025). Originating Summons dated 21/03/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8655/eng@2025-12-10

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