[2016] KEHC 6527 (KLR)

[2016] KEHC 6527 (KLR)

The court found that Muguga/Kanyariri/196 was registered in the deceased's name as trustee for her children, not as her absolute property. Under section 3(1) of the Law of Succession Act, only 'free property'—property over which the deceased had absolute ownership and power of disposition—can be disposed of by will. Property held in trust does not qualify as free property, as the trustee holds it for the benefit of others and cannot deal with it as their own. The court determined that the deceased's interest in the property terminated upon her death, and the property reverted to the beneficiaries of the trust, namely the children of the marriage. There was no error apparent on the face of...

Citation
[2016] KEHC 6527 (KLR)
Parties
Applicant: Job Waweru Karioki; Respondent: Humphrey Kinyanjui Kariuki
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
12 February 2016
Case Number
Succession Cause 2299 of 2012
Procedural Posture
Succession Cause / Ruling on Application for Review and Declaration Regarding Trust Property
Outcome
Application partially allowed; review of orders refused, declaration granted.
Judges
DN Musyoka
Legal Topics
Testate Succession, Trust Property, Matrimonial Property, Distribution of Estate, Capacity of Trustee, Confirmation of Grant
Source Language
English
Family and Children Land and Property Testate Succession Trust Property Matrimonial Property Distribution of Estate Capacity of Trustee Confirmation of Grant

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Parties

Job Waweru Karioki

Applicant

Humphrey Kinyanjui Kariuki

Respondent

Procedural Posture

Succession Cause / Ruling on Application for Review and Declaration Regarding Trust Property

Legal Issues

  1. 1 Whether the deceased, registered as trustee for her children, could dispose of Muguga/Kanyariri/196 by will.
  2. 2 Whether the orders made on 16th May 2013 should be reviewed or set aside due to non-disclosure of trust status.
  3. 3 Whether the property Muguga/Kanyariri/196 forms part of the free property of the deceased's estate.

Ratio Decidendi

The court found that Muguga/Kanyariri/196 was registered in the deceased's name as trustee for her children, not as her absolute property. Under section 3(1) of the Law of Succession Act, only 'free property'—property over which the deceased had absolute ownership and power of disposition—can be disposed of by will. Property held in trust does not qualify as free property, as the trustee holds it for the benefit of others and cannot deal with it as their own. The court determined that the deceased's interest in the property terminated upon her death, and the property reverted to the beneficiaries of the trust, namely the children of the marriage. There was no error apparent on the face of...

Court Disposition

Application partially allowed; review of orders refused, declaration granted.

Orders

  • Prayer 1 of the application dated 26th March 2015 is dismissed.
  • Prayer 2 of the application dated 26th March 2015 is granted.