[2004] KEHC 2317 (KLR)
The court found that the applicant's request to appoint a co-trustee was reasonable and just, given her advanced age and ill health, and that no prejudice would be caused to other beneficiaries. The court exercised its discretion to review its previous order and directed that the 1.5 acres of land allocated for...
Source-derived case information.
- Citation
- [2004] KEHC 2317 (KLR)
- Parties
- Applicant: Tabitha Mbaire Njoroge; Respondent: Peninah Waweru Gaitho; Respondent: James Waweru Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1053 of 1996
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Distribution Order
- Outcome
- application granted
- Legal Topics
- Trusteeship of Estate, Distribution of Estate, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Mbaire Njoroge
Applicant
Peninah Waweru Gaitho
Respondent
James Waweru Njoroge
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Distribution Order
Legal Issues
- 1 Whether the court should review its previous order to appoint an additional trustee for the benefit of a beneficiary of unsound mind.
- 2 Whether the applicant's advanced age and health justify the appointment of a co-trustee.
Ratio Decidendi
The court found that the applicant's request to appoint a co-trustee was reasonable and just, given her advanced age and ill health, and that no prejudice would be caused to other beneficiaries. The court exercised its discretion to review its previous order and directed that the 1.5 acres of land allocated for Michael Mwaura be registered jointly in the names of Tabitha Mbaire Njoroge and James Waweru Njoroge to hold in trust for Michael Mwaura. The decision was grounded in the need to ensure proper management of the trust property for the benefit of a vulnerable beneficiary and to relieve the applicant of sole responsibility due to her circumstances.
Court Disposition
application granted
Orders
- The 1.5 acres of land shall be registered in the joint names of Tabitha Mbaire Njoroge and James Waweru Njoroge to hold in trust for Michael Mwaura.
- No order as to costs.
Full Case Text
Judgment text and source record
5 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBISUCCESSION CAUSE NO.1053 OF 1996 IN THE MATTER OF THE ESTATE OF NJOROGE MURAGU – (DECEASED) RULING On 24th October, 2003 this court (Waweru J.) ordered redistribution of the Deceased’s estate as set out in paragraph 2 of the said order. In sub-paragraph (iv) of that paragraph 1. 5 acres of land was allocated to MICHAEL MWAURA, a son of the Deceased of unsound mind, the same to be registered in the name of his mother, TABITHA MBAIRE NJOROGE, to hold the same in trust for him. Tabitha has now come back to court by notice of motion dated 28th November 2003 seeking a review of the above-stated portion of the order so that instead of herself, another son of hers, JAMES WAWERU NJOROGE may be registered proprietor of the 1. 5 acres in trust for the said Michael Mwaura, or in the alternative both herself and James Waweru Njoroge be so registered. The application is brought under Order 44, rules 1 and 2 of the Civil Procedure Rules and also under Section 3A of the Civil Procedure Act, Cap.21.
Although the application is opposed by PENINAH WAWERU GAITHO, one of several other beneficiaries, it was conceded by her learned counsel during arguments that she will not be directly prejudiced by the order sought. It was also conceded that it was within the court’s unfettered discretion to appoint whomever it deems fit to act as the trustee of Michael. During the hearing of the application that resulted in the orders of 24th October, 2003 it was common ground that it is Tabitha and James Waweru Njoroge who jointly take care of Michael.
I have considered this matter. I cannot see any harm that may be done to anyone by granting the order sought. Tabitha wants to divest herself of the sole responsibility of managing Michael’s trust because she is old (being over 86 years old) and ailing and without the necessary energy. Her prayer is therefore reasonable and just in the circumstances. I will grant the application and order that instead of TABITHA MBAIRE NJOROGE alone, the 1. 5 acres of land shall be registered in her joint name with JAMES WAWERU NJOROGE to hold the same in trust for MICHAEL MWAURA. It is so ordered. There will be no order as to the costs of this application.
DATED AND SIGNED AT NAIROBI THIS 17 TH DAY OF FEBRUARY, 2004. H.P.G. WAWERU JUDGE