[2015] KEELC 573 (KLR)
The court found that while the applicant's desire to relocate for the welfare of her children is understandable, the application was premature, particularly in respect to JM, who was about to attain the age of majority and thus become capable of making his own decisions regarding the trust property. The court also...
Source-derived case information.
- Citation
- [2015] KEELC 573 (KLR)
- Parties
- Applicant: Mary Wanjira
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 47 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion
- Outcome
- application dismissed
- Judges
- BN Olao
- Legal Topics
- Trusts Over Land, Guardianship of Minors, Land Exchange, Tenancy for Life, Registration of Land, Child Welfare
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Wanjira
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion
Legal Issues
- 1 Whether the applicant should be appointed as guardian of her minor children JM and DW.
- 2 Whether the trust and tenancy for life over L.R No. INOI/KARIKO/3322 should be terminated to facilitate a land exchange.
- 3 Whether the court should direct the Land Registrar to register the exchanged land in the names of the minors.
Ratio Decidendi
The court found that while the applicant's desire to relocate for the welfare of her children is understandable, the application was premature, particularly in respect to JM, who was about to attain the age of majority and thus become capable of making his own decisions regarding the trust property. The court also noted the absence of any proposal or assurance as to how the Ksh. 500,000/= compensation would be managed for the benefit of the minors. Given these factors, the court determined that it would not be in the best interests of the minors, especially JM, to grant the orders sought at this time. The application was therefore dismissed, with the court suggesting that the applicant...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 24th November 2014 is dismissed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT AT KERUGOYA
MISC APPLICATION NO. 47 OF 2014
MARY WANJIRA …………………………………. APPLICANT
RULING
This is in respect to the applicant’s Notice of Motion dated 24th November 2014 in which the applicant seeks the following orders-:
That she be appointed as guardian of JM and DW her minor children
That this Court do terminate the trust and tenancy for life granted to the applicant in respect to L.R No. INOI/KARIKO/3322 to enable her make an exchange with land parcel No. KARIKO/THAITA/1952
That upon that exchange, the Land Registrar Kirinyaga do register INOI/THAITA/1952 in the names of the two minors.
The genesis of this application is that the applicant who is the mother of the two minors namely JM and DW is the registered proprietor of the parcel of land No. INOI/KARIKO/3322 which she holds in trust for the two minors. Following the death of her husband, the applicant has been involved in inheritance battles with her relatives which only came to an end in July 2014. Since the environment is hostile to her and the minors, she has decided to relocate to another parcel of land belonging to one EPHANTUS MUCHIRI KAGWI who will give his land parcel No. INOI/THAITA/1952 and an additional Ksh. 500,000/= as compensation in exchange for land parcel No. INOI/KARIKO/3322.
I have considered the application and the annextures attached to it being the birth certificates of the minors, the certificate of search in respect of parcel No. INOI/KARIKO/3322 and the Land Exchange Agreement between the applicant and the said EPHANTUS MUCHIRI KAGWI in respect of the two parcel of land.
It would seem from the applicant’s affidavit that since the demise of her late husband in 1983 after which the parcel No. INOI/KARIKO/3322 was registered in her names, she has not had peace with her in-laws. That is unfortunate indeed and I agree with her that she needs to bring up the children in a friendly environment.
Having said so, I notice from the birth certificate of JM (annexture MWG 2A) that he was born on 7th May 2007. That means that he will be 18 years old in two (2) months and cease being a child. He will then be in a position to make decisions for himself including entering into agreements. Since the applicant has persevered her in-laws’ hostility for this long, surely she can wait for another two months for JM to become of age.
Further, there is no mention of how she proposes to use the Ksh. 500,000/= that EPHANTUS MUCHIRI KAGWI will give her in exchange for the parcel No. INOI/KARIKO/3322. Will it be invested for the benefit of the minors?
Much as I sympathize with the applicant, I feel she can wait for a few months at least in the case of JM before making a decision over the land transfer.
In the circumstances, I would dismiss the Notice of Motion dated 24th November 2014.
B.N. OLAO
JUDGE
13TH MARCH, 2015
17/3/2015
Before
B.N. Olao – Judge
Gichia – CC
Mr. Njoroge for Ngangah for Applicant – present
COURT: Ruling delivered this 17th day of March 2015 in open Court.
Mr. Njoroge for Ngangah for Applicant present.
B.N. OLAO
JUDGE
17TH MARCH, 2015