[2021] KEELC 819 (KLR)
The court declined to grant the applicant authority to sell the land parcel held in trust for a minor, primarily because the minor co-proprietor, JM, was due to attain the age of majority within five months. The judge found it prudent to defer any decision regarding the sale until JM could participate in the...
Source-derived case information.
- Citation
- [2021] KEELC 819 (KLR)
- Parties
- Applicant: Bnalialka Wepukhulu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 8 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Legal Topics
- Trusteeship of Land, Sale of Land by Trustee, Minor Beneficiaries, Judicial Authority to Sell Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bnalialka Wepukhulu
Applicant
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicant, as trustee and co-proprietor, should be granted authority to sell land parcel NDIVISI/MUCHI/xxxx held in trust for a minor.
- 2 Whether it is prudent to grant leave to dispose of trust property shortly before the minor attains majority.
- 3 Whether the applicant's prior agreement to purchase another property using proceeds from the intended sale is proper.
Ratio Decidendi
The court declined to grant the applicant authority to sell the land parcel held in trust for a minor, primarily because the minor co-proprietor, JM, was due to attain the age of majority within five months. The judge found it prudent to defer any decision regarding the sale until JM could participate in the decision as an adult. The court also expressed concern that the applicant had already entered into a purchase agreement for another property using anticipated proceeds from the sale, which was deemed improper for a trustee acting without prior court approval. The application was therefore dismissed, with the court emphasizing the need to protect the interests of the minor and to avoid...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 16th August 2021 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA
ELC MISCELLENEOUS APPLICATION NO. 8 OF 2021
IN THE MATTER OF
SECTIONS 13, 17 AND 56 OF THE TRUSTEES ACT CAP 167 LAWS OF KENYA
AND
IN THE MATTER OF LAND PARCEL NO. NDIVISI/MUCHI/2603
AND
IN THE MATTER OF JM ............... MINOR
AND
IN THE MATTER OF LEAVE AND AUTHORITY TO SELL
BNALIAKA WEPUKHULU............... EX PARTE APPLICANT
R U L I N G
What calls for my determination is the Ex – parte Applicant’s Notice of Motion dated 16th August 2021 brought vide Order 37 Rule 1(1) of the Civil Procedure Ruleand Sections 1A, 1B, 3 and 3A of the Civil Procedure Rules seeking the following orders: -
1. Spent
2. That the Ex – parte Applicant be granted Authority as the proprietor and also the proprietor in trust for JM (a minor) to dispose off the land parcel NO NDIVISI/MUCHI/xxxx.
3. Any other orders that this Court may deem expedient to grant.
4. That costs of this application be in the cause.
The gist of the application as can be gleaned from the supporting affidavit and the annextures thereto is that the Ex – parte Applicant and the minor JM and another minor GM (now deceased) are the proprietors of the land parcel NO NDIVISI/MUCHI/xxxxas per the annexed copy of the title deed. The Ex – parte Applicant is now widowed her late husband JOHN WEPULHULU MUKELASIOhaving passed away in 2013 leaving her with the following children namely JMW, EN, YM, EW and the deceased. That the said children are minors attending various schools and since the Ex – parte Applicant has no steady income, she needs to dispose off the land parcel NO NDIVISI/MUCHI/xxxxto enable her meet the needs of the children and also acquire another property hence this application.
I have considered the application, the supporting affidavit and the annextures thereto.
There is no doubt in my mind that the Ex – parte Applicant is a widow and has children to take care of. It is also clear that the land parcel NO NDIVISI/ MUCHI/xxxxis registered in the names of the Ex – parte Applicant and her two children JM and GM (now deceased). I am also satisfied from the annextures herein that JM, EWand EN are in school and so their fees and other requirements must be met.
What has caused me some disquiet and makes me hesitant to grant the orders sought are the following three (3) concerns.
Firstly, the Ex – parte Applicant’s late husband passed away in 2013 some eight (8) years ago. She has managed to take care of her children including taking them to school since then. JM the only surviving co – proprietor will be attaining the age of majority in the next five (5) months having been born on 5th March 2003. I think it is only prudent that the Ex – parte Applicant waits just a little longer.
Secondly, as stated above, JM was born on 5th March 2003. He will attain the age of majority in the next five (5) months and will be in a position to make his own decision with respect to the land parcel NO NDIVISI/ MUCHI/xxxx. No prejudice will be caused to the Ex – parte Applicant if she waits a little longer.
Lastly, I notice from the annextures that the Ex – parte Applicant has already entered into an agreement with one JEFFERSON M. BARASA to purchase his land being plot NOxxxxEAST BUKUSU/NORTH SANG’ALO using the proceeds to be obtained from the sale of the land parcel NO NDIVISI/MUCHI/xxxx. It is improper for her to be entering into such transactions with respect to the land parcel NO NDIVISI/MUCHI/xxxxwhen she is only a trustee. I caution her about making any such further transactions.
My view of the matter is that the Ex – parte Applicant can wait for a further five (5) months for JM to attain the age of majority before a decision can be made on the land parcel NO NDIVISI/MUCHI/xxxx.
The up – shot of the above is that the Notice of Motion dated 16th August 2021 is dismissed with no orders as to costs.
BOAZ N. OLAO.
J U D G E
28th October 2021.
Ruling dated, signed and delivered in Open Court at BUNGOMA this 28th day of October 2021.
Mr Athung’a present for Applicant
Applicant present
Joy - Court Assistant
BOAZ N. OLAO.
J U D G E
28th October 2021.