In re L M M And F M M (Minors) (through their grandfather and next friend H N R) [2018] KEELC 143 (KLR)
The bottom line
#A Kenyan court approved a grandfather's plan to exchange land held in trust for his young grandchildren, confirming minors must hold land through a trustee.
What this practically means
#Executive summary
#Key legal issues
#Whether the court may sanction an exchange of land held in trust for minors under section 56 of the Trustee Act
Yes; the court may confer the necessary power where the transaction is expedient but cannot be effected for want of power, and an exchange is such a disposition.
The court found that minors are entitled to own property but cannot hold it directly, only through a trustee. Since the Applicant proposed to exchange a parcel held in trust for minors for another parcel to be held on the same trust, that exchange constitutes a disposition of an interest in land which required the court's sanction under section 56 of the Trustee Act. Section 27 of the Land Act confirms a child can hold title through a trustee.
Whether the proposed exchange is beneficial to the minors
Yes; the court was satisfied the exchange would be beneficial and in the minors' best interest.
The Applicant, the minors' grandfather, had held the original parcel in trust for the minors since the death of their father. He wished to give them a parcel that would otherwise have gone to their father. The court accepted the Applicant's reasons and was satisfied he would look after the minors' best interests, having held the parcel in trust since their father's demise.
Legal principles established
#- Minors cannot hold land directly but must hold it through a trustee
- An exchange is a disposition of an interest in land requiring the court's sanction under section 56 of the Trustee Act
Court orders
#- 1.The amended originating summons filed on 13th June 2018 is allowed as prayed
- 2.An order allowing the Applicant to execute a deed of exchange in favour of HNR to hold on behalf of LMM and FMM (minors), jointly, and HNR to hold on his behalf in respect of land parcel numbers Nthawa/Siakago/[…] and Nthawa/Gitubiri/[…]
- 3.A trust created in the name of HNR to hold on behalf of LMM and FMM (minors) jointly over land parcel number Nthawa/Gitiburi/[…]
- 4.The trust existing over land parcel number Nthawa/Siakago/[…] in the name of HNR on behalf of LMM and FMM (minors) jointly terminated
- 5.Land parcel number Nthawa/Siakago/[…] registered in the name of HNR as sole proprietor
- Jurisdiction invoked
- Section 56 of the Trustee Act (Cap 167); section 27 of the Land Act No. 6 of 2012; Order 37 Rule 1(f) of the Civil Procedure Rules, 2010; sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re L M M And F M M (Minors) (through their grandfather and next friend H N R) [2018] KEELC 143 (KLR)", Case Analysis (2018). Amended Originating Summons filed 13th June 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/143/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.