[2009] KEHC 4183 (KLR)
The court found that the application was straightforward and unopposed, with the only surviving family member of the settlor consenting to the applicant's appointment and the proposed transfer. The property in question was in a dilapidated state and unable to fulfill the charitable purposes of the wakf. The...
Source-derived case information.
- Citation
- [2009] KEHC 4183 (KLR)
- Parties
- Applicant: Sultan Pyarali Molu; Respondent: Sadak Haji Jivraj (deceased)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 308 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Originating Summons for Appointment of Trustee and Property Transfer
- Outcome
- application allowed
- Legal Topics
- Wakf Trusteeship, Appointment of Trustee, Transfer of Trust Property, Charitable Trusts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sultan Pyarali Molu
Applicant
Sadak Haji Jivraj (deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Originating Summons for Appointment of Trustee and Property Transfer
Legal Issues
- 1 Whether the applicant should be appointed as trustee of the wakf of Haji Jivraj Meghji.
- 2 Whether the applicant should be allowed to transfer the wakf property to the registered trustees of the Federation of the Khoja Shia Itnasheri Jamaats of Africa as per the wishes of the legatee.
Ratio Decidendi
The court found that the application was straightforward and unopposed, with the only surviving family member of the settlor consenting to the applicant's appointment and the proposed transfer. The property in question was in a dilapidated state and unable to fulfill the charitable purposes of the wakf. The registered trustees of the Federation of the Khoja Shia Itnasheri Jamaats of Africa were willing and able to enhance the property for the benefit of the intended beneficiaries. The court exercised its discretion to appoint the applicant as trustee and to allow the transfer of the property, finding that these orders would best serve the interests of justice and the intentions of the...
Court Disposition
application allowed
Orders
- The applicant, Sultan Pyarali Molu, is appointed as trustee of the wakf of Haji Jivraj Meghji.
- The applicant is authorized to transfer Plot No. Mombasa/Block XXIV/69 to the registered trustees of the Federation of the Khoja Shia Itnasheri Jamaats of Africa as per the wishes of the legatee.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Miscellaneous Civil Suit 308 of 2009
IN THE MATTER OF: THE WAKF OF HAJI JIVRAJ MEGHJI
-AND-
IN THE MATTER OF: AN APPLICATION BY SULTAN PYARALI
MOLU for his appointment as
TRUSTEE OF the WAKF in respect of
Plot No. MOMBASA/BLOCK XXIV 69 in
place of SADAK HAJI JIVRAJ now
deceased
RULING
The applicant moved to Court by virtue of Order XXXVIrules 1 (g) and 2 (c) of the Civil Procedure Rules, and s. 3A of the Civil Procedure Act (Cap. 21, Laws of Kenya). He was seeking orders that (i) he be appointed as the trustee of the wakf of Haji Jivraj Meghji; (ii) he be allowed to transfer the named property of the wakf, Plot No. Mombasa/Block XXIV/69 to the registered trustees of the Federation of the Khoja Shia Itnasheri Jamaats of Africa as per the wishes of the legatee.
In the applicant’s supporting affidavit he depones that the wakf was created by the late Haji Jivraj Meghji who died on 23rd June, 1928, for the advancement of religion and education, and for the relief of poverty among the Shia Itnasheri Mohamedan Community; that Kassamali Haji Jivraj Meghji the son of the said Haji Jivraj Meghji who was also the administrator of his estate, by deed dated 6th February, 1929 did consecrate the said wakf; that the said Kassamali Haji Jivraj Meghji, the last trustee of the said wakf, approached the Supreme Council of the Khoja Shia Itnasheri in 1992 to take over the administration of the wakf; that the house standing on the wakf property is now dilapidated, is dangerous, and cannot raise sufficient funds for the maintenance of the property; that the registered trustees of the Federation of the Khoja Shia Itnasheri Jimaats of Africa is desirous of constructing a modern building on the wakf property for the purpose of enhancing the purposes of the said wakf as perthe will of the settlor; that the only surviving member of the family of the late Haji Jivraj Meghji is Anwarali Mohamed Jaffer Kassamali; that the said Anwarali Mohamed Jaffer Kassamali is not interested in being appointed a trustee of the wakf and is agreeable to the applicant’s proposed appointment and to the transfer of the property as proposed in the application; and that the interest of justice would best be served by allowing the application herein.
The foregoing depositions were presented in Court, on behalf of the applicant, by learned counsel Mr. Kiarie Kariuki. The intent of the application is, in my opinion, straightforward, and it presents no difficulty.
Consequently, I allow the prayers contained in the Originating Summons of 25th June, 2009. Costs shall be in the cause.
DATED and DELIVERED at MOMBASA this 26th day of November, 2009.
J. B. OJWANG
JUDGE
Coram: Ojwang, J.
Court Clerk: Ibrahim
For the Applicant: Mr. Kiarie Kariuki