Khadija Khamis Shafi & 2 others v Ali Mohamed Ali Darani

4. Ms Khadija deposed that they had made the application in the best interest of the estate as there was a danger that the estate would be wasted. 5. The respondent was served by substituted means, upon an application being made to the Court to allow the said action. 6. Upon being served, the respondent, through the form of HA Mwadzogo & Co Advocates, filed grounds of opposition dated 10th May 2024, vide which it was averred that the issue of the Wakf was before the Environment and Land Court, vide ELC Cause No 53 of 2018, and thus the proceedings herein were meant to defeat the cause of justice. It was also argued that the application contravened the provisions of the Waqf deed, which specified the criteria for appointing trustees. Lastly, it was contended that the respondent's alleged incapacity had not been substantiated. 7. The respondent also filed a replying affidavit sworn on 24th September 2024, vide which he deposed, inter alia, that he had the energy to continue administering the subject Waqf despite his age. Concerning the applicants, he deposed that they lack the requisite knowledge, skill, and experience to be appointed as trustees. He stated that the Waqf deed had a provision governing the appointment of new trustees whenever necessary. He therefore opposed the application. 8. Pursuant to the directions of the Court, the matter was heard by way of viva voce evidence. 9. The applicants called one witness, Khadija Abdulrahman Mwinzagu, alias Khadija Khamis Shafi. Ms Khadija testified that she resides in Kibokoni, Old Town, Mombasa. It was her evidence that she is the beneficiary of the Waqf of Kibibi Binti Mohamed. The Waqf was established in 1905. Ms Khadija relied on her supporting affidavit as her evidence in chief and produced the annexures attached thereto as exhibits. 10. When cross-examined by Mr Mwadzogo, she admitted that she could be older than the respondent. She prayed to be allowed to serve as a trustee alongside the respondent. She and the 2nd applicant live in Kenya, while the 3rd applicant lives in the United Kingdom. She testified that the respondent had attempted to have the Waqf dissolved, leading to the filing of 2 cases, which are pending before the Environment and Land Court. 11. She further stated during cross-examination that the Waqf didn’t provide for the manner of appointment of new trustees. 12. Although the respondent was given the opportunity to attend Court and present his evidence, he failed to do so. On 5th December 2024, Mr Hamisi Mwadzogo closed his case without calling the respondent to the stand. The inability was apparently caused by the respondent's admitted ill health. 13. The Court directed the parties to file written submissions. Both parties complied. I shall set out the submissions of the parties in the succeeding paragraphs of this judgment. 14. The submissions of the applicant are dated 30th January 2025. Through their advocate, AO Hamza & Co. Advocates, the applicants urged that the application should be allowed. 15. It was urged that the fact that the respondent was unable to give evidence, even virtually, corroborated the applicant's case that he was of advanced age and was therefore unable to run the Waqf solely. Counsel submitted that they were not seeking to remove the respondent as a trustee of the Waqf, but rather to add additional trustees, as the respondent had diminished capacity. Regarding the case allegedly pending in the Environment and Land Court, it was denied that its pendency precluded the appointment of new administrators. It was therefore prayed that the application be allowed as prayed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19537/eng@2025-04-08 2

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16. The submissions of the respondent, on the other hand, are dated 2nd January 2025. Vide the said submissions, the respondent urged that the Originating Summons be dismissed on the grounds that the applicants had not proved their case. Mr Mwadzogo learned that counsel for the respondent urged that the 1st applicant was of the same age as the respondent. He further submitted that it had not been proved that the Waqf had been mismanaged. 17. It was contended that the existence of ELC Cause No 53 of 2018; Khadija Shafi, another vs Ali Mohamed Ali Darani & 3 others wasn’t contended. The case in question addressed the issue of the Wakf. 18. I have considered the summons, the responses thereto, as well as the evidence presented to the Court and the parties' written submissions. What orders should be issued in this case? 19. I note that although the respondent was given an opportunity to present his evidence, he failed to attend Court physically or virtually. His attendance was of great importance, as the issue at stake is whether he can continue to be the sole trustee of the subject Waqf. 20. I have perused the Wakf Deed executed by Kibibi Binti Mohamed bin Sheikh El-Mombasiya on 13th June 1905. The Waqf is, as far as I can tell, a Waqf ahli, as the settlor, Ms Kibibi Binti Mohamed, made it for the benefit of her family, in perpetuity. The settlor appointed Rashid Bin Mwajabu as the trustee, but made no provision for the appointment of other trustees. The Waqf was, as already indicated, for the benefit of her descendants; those she beget with Mr Aziz Bin Juma. 21. It is clear to me that the respondent is of advanced age and is currently unwell. That fact was admitted during the trial. The applicants are of the same age as the respondent, although they appear, from what I could discern during the trial, to be in better health. Having said that, I note that what is sought is the appointment of additional trustees, not the replacement of the respondent. 22. The Waqf Act is silent on the appointment of trustees by the Court. In the circumstances, I take recourse in the Trustees Act. 23. Section 42 of the Trustees Act states that: “ Power of court to appoint new trustees (1) The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee. (2) In particular and without prejudice to the generality of the foregoing provision, the court may make an order appointing a new trustee in substitution for a trustee who is convicted of felony, or is a lunatic or a defective, or is a bankrupt, or is a corporation which is in liquidation or has been dissolved. (3) An order under this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19537/eng@2025-04-08 3

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(4) 24. Nothing in this section gives power to appoint an executor or administrator. On its part, Section 44 of the Trustees Act provides as follows: “ Powers of new trustee appointed by the court Every trustee appointed by a court of competent jurisdiction shall, as well before as after the trust property becomes by law, or by assurance, or otherwise, vested in him, have the same powers, authorities, and discretions, and may in all respects act, as if he had been originally appointed a trustee by the instrument, if any, creating the trust.” 25. In my view, it is expedient in the circumstances of this case to appoint the applicants as trustees of the subject Waqf. In the circumstances, I appoint them as the trustees of the Waqf of Kibibi Binti Mohamed Bin Sheikh El-Mombasiya, registered at the Land Registry at Mombasa as CR 2471/4, to be the trustees thereof together with the respondent. I order that pursuant to section 44 of the Trustees Act, the new trustees shall have the same powers, authorities, and discretions as the respondent. 26. The upshot of the foregoing is what 27. 1. I allow the Originating Summons dated 8th December 2023; and 2. I order that each party bear his/her/their own costs of the suit. It is so ordered. DATED AND SIGNED AT MOMBASA, THE 8TH DAY OF APRIL 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Mr Shee Ali, holding a brief for Mr Hamza, for the Applicants; No appearance for the Respondent; and Arthur - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19537/eng@2025-04-08 4

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