JOHN KABARI MUNIU AND ISAAC KARANJA MUNIU VS JANE WAMBUI MUNIU AND PAUL NJENGA MUNIU AND 1 Others

1. By Originating Summons dated 22nd November, 2024, the Applicants sought the following orders:

1. THAT the trust created vide a Rectified Certificate of Confirmation of a Grant issued to JOHN KABARI MUNIU and ISAAC KARANJA MUNIU on 6th December, 2022 be declared in favour of JANE WAMBUI MUNIU, PAUL NJENGA MUNIU and RACHEAL MUTHONI MUNIU as follows:

a. That land parcel no. NAKURU/RARE/GICHOBO/68 which was held in trust by ISAAC KARANJA MUNIU be sub-divided and distributed as follows:
i. JANE WAMBUI MUNIU of ID No. 1117261 to be given 2 ½ acres.
ii. PAUL NJENGA MUNIU of ID No. 8712536 to be given 3 acres.
iii. RACHEAL MUTHONI MUNIU of ID No. 23849490 to be given 2 ½ acres.
2. THAT the costs of this application be provided for.

APPLICANTS' SUBMISSIONS
2. Counsel for the Applicants filed submissions dated 28th January, 2025 and identified the following issues for determination:

a) What is the applicable law with respect to the Applicants’ claims?
b) Whether the 2nd Applicant holds the property known as NAKURU/RARE/GICHOBO/68 as trustee for JANE WAMBUI MUNIU, PAUL NJENGA MUNIU and RACHAEL MUTHONI MUNIU.
c) Whether the reliefs sought can be issued?

3. On the first issue, counsel relied on Order 37 Rule 1 of the Civil Procedure Rules and submitted that equitable principles relating to trust claims fall under this Rule. Counsel also submitted that a person claiming under trust may apply and  the same shall be determined upon examination of the issues and relied on the case of NWK vs JKM & Another [2013] eKLR.

4. On the second issue as to whether the 2nd Applicant holds the  suit property known as NAKURU/RARE/GICHOBO/68 as a trustee for JANE WAMBUI MUNIU, PAUL NJENGA MUNIU and RACHAEL MUTHONI MUNIU. Counsel submitted that the Applicants have exhibited a copy of the rectified certificate of confirmation of a grant dated 6th December, 2022 and a copy of a title issued in the name of the 2nd Applicant clearly showing that the 2nd Applicant has been registered as a trustee and  relied on Section 107, 108 and 109 of the Evidence Act.

5. Counsel submitted that the trust has been noted in the register as shown on the title deed issued in the name of the 2nd  Applicant.

6. On the third issue, counsel submitted that since a trust has already been created, the only way to have the beneficiaries’ shares transferred to them is by determining the existing trust in their favour. Counsel further  submitted that the intended beneficiaries are already in possession of the suit property and  urged the court to allow the originating summons as prayed.

ANALYSIS AND DETERMINATION
7. The issue for determination is whether the orders sought in the originating summons dated 22nd November, 2024 can be granted. The Originating summons has  been brought under the provisions of Order 37 Rule 1 of the Civil Procedure Rules which provides as follows:

a. any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or cestui que trust;

b. the ascertainment of any class of creditors, devisees, legatees, heirs, or others;

c. the furnishing of any particular accounts by the executors, administrators or trustees, and the vouching, when necessary, of such accounts;

d. the payment into court of any money in the hands of the executors, administrators or trustees;

e. directing the executors, administrators or trustees to do, or abstain from doing, any particular act in their character as executors, administrators or trustees;

f. the approval of a sale, purchase, compromise or other transaction;

g. the determination of any question arising directly out of the administration of the estate or trust.

8. From the title issued on 12th March 2024   and the rectified Certificate of Confirmation of grant dated 6th December 2022, it indicates that the 2nd Applicant holds the suit properties in trust for JANE WAMBUI MUNIU, PAUL NJENGA MUNIU and RACHAEL MUTHONI MUNIU, which fact is verifiable.

9. I have considered the pleadings, the submissions by counsel, the relevant documents attached, and find that  the Originating Summons has merit and is therefore allowed as prayed with no orders as to costs.