Introduction
1. The matter before the court arises out of a dispute between the descendants of Sheikh Ali Bin Salim over the running of a school created under a trust known as Sheikh Ali Bin Salim School Trust. The trust is also called Malindi School Trust. The intention of the settlor, then the Liwali (governor) of Mombasa, was to establish and endow a school at Malindi to encourage the education of Arab and Swahili children. The deed of trust was dated 18th July 1921 and was registered at the Mombasa Lands Registry on 28th September 1921 in volume LT – 28, and M – 1 Folio 418/4, 316/10, 327/3, 462/3, 126/10, 323/2 and 321/3, Files 805, 158, 159, 164, 231, 65, 162 and 161.
2. Pursuant to the objects of the trust, a school was established and endowed as Sir Ali Bin Salim Primary School. The school is now managed by the Government of Kenya and provides free basic education for hundreds of less privileged children in Malindi.
3. The plaintiff and the defendant agree that the trust created by their great-grandfather was a public charity trust and that the trust deed provides for the manner in which the trustees would be appointed, leave to hold office or be replaced. They further agree that the objects of the trust subsist. What is in contention is whether the sole surviving trustee has neglected his duties or is otherwise incapable of running the affairs of the trust on account of his residence in the Sultanate of Oman and of the alleged blindness and physical and intellectual incapacity. Further, it is urged that he failed to tender accounts and to account for the trust's funds, contrary to his fiduciary duties.
4. Seeking to have the court remove the defendant as the trustee of the subject trust, the plaintiffs filed the present action. They seek to be appointed as trustees in his place. They contend that the trust's charitable purposes will be better preserved that way. In support of their case, they allege that the defendant was unaware of the loss of some of the trust land and of the suit they filed with the assistance of the Muslims for Human Rights.
5. Naturally, the defendant denies that that is the case. He denied that the plaintiffs have locus standi to bring the instant originating summons and averred that the plaintiffs regard the trust as part of their great-grandfather’s estate, liable for distribution in succession proceedings, which is, in fact, not the case. The defendant filed a preliminary objection, which my brother Judge dismissed with costs, regarding the plaintiffs' standing.
Suit by the Plaintiffs
6. The suit was commenced by way of the originating summons. The prayers sought are:
i Whether the applicants, Soud Salim Soud and Abdullah Saud Al– Busaidi, should be appointed as new trustees in substitution for or in addition to the existing trustee of the Sheikh Ali Bin Salim School Trust, alias Malindi School Trust, pursuant to sections 37 and 42 of the Trustees Act, Cap 167 of the Laws of Kenya;
ii Whether the Respondent Col. Sulaiman Mohamed Al-Busaidi should be discharged and or removed as trustee of the Sheikh Ali Bin Salim School Trust, alias Malindi School Trust, for being in continued breach of Section 37(1) of the Trustees Act, Cap 167 of the Laws of Kenya; and
iii Whether the honourable court should decline the original signed trust deed lost and, in its place, declare the unsigned copy of the trust deed as a valid instrument for all interests and purposes of this suit.
7. The plaintiffs urged that the defendant lacked capacity to act as a trustee on account of his physical infirmity, that he had neglected his duties and failed to provide much-needed auxiliary support services for the school, “thereby endangering the objective of the trust and the properties”. They stated that the defendant was unaware of the existence of Malindi ELC Petition No. E016 of 2021; Board of Management of Sir Ali Bin Salim Primary School v Rabai Mining Ltd; and Muslims for Human Rights, National Museums of Kenya, and the Attorney General. It was urged that, as the defendant was not fit and was incapable of acting as a trustee, this honourable court ought to make necessary orders appointing the plaintiffs as trustees in addition to and or in substitution of the Respondent.
8. Various documents were attached, including the unsigned Trust Deed/indenture dated 18th July 1921, correspondence with the office of the Attorney General in 1921 regarding the “Arab School in Malindi”, and letters counsel for the plaintiffs exchanged with the defendant’s counsel.
Response by the Defendant
9. In opposition, the defendant filed a replying affidavit sworn on 2nd December 2022, in which he denied that the plaintiffs have the standing to challenge his standing as the trustee. He averred that the plaintiffs had not appreciated that the Trust was separate from the estate of Sheikh Ali Bin Salim, and that what they were seeking was to wind up the Trust and have the property distributed to the beneficiaries of the estate of Sheikh Ali Bin Salim.
10. Col. Sulaiman denied that he was ill, blind, or otherwise incapable of managing the trust. He prayed that the originating summons be dismissed.
11. His counsel filed a preliminary objection dated 26th May 2023 in which he sought to strike out the originating summons. Upon consideration, Magare J dismissed the same with costs of Kes 50,000/-. His reasons, as can be discerned from the ruling, were that the question as to whether the plaintiffs had locus standing could not be determined without the evidence, as the standing flowed from the question as to whether they were beneficiaries or trustees, “in the manner stipulated under Section 57 of the Trustees Act.”
The direction of the court
12. On 18th January 2024, the court identified the agreed facts as being that the trust is a public charitable trust and that Col. Sulaiman is a trustee. The issues were identified as being:-
i The capacity of the applicant;
ii Whether the trustee breached the trust;
iii Whether the reliefs sought could issue; and
iv Power of the court in removing and appointing the trustees.
13. The matter was heard by way of viva voce evidence.
Evidence of the Plaintiffs
14. The 1st plaintiff, Soud Salim Soud, testified on 23rd September 2024. He produced exhibits in support of their case and was cross-examined by Mr Omondi. He reiterated that the defendant was infirm, that he had failed to act with diligence as a trustee and that he should be removed. He prayed that he and his co-plaintiff be appointed in his place. In his view, the school wasn’t doing well.
Evidence of the Defendant
15. On his part, the defendant denied that he was infirm. He testified that the school was still serving the community in Malindi well. He stated, in particular, that he was happy with the school's status. He denied having deviated from the trust or its purposes. While admitting that the school property had been taken over by the Government of Kenya, he stated that it happened when he wasn’t a trustee. He was categorical that he wouldn’t seek its recovery from the government. He, however, stated that he was in the process of recovering other trust properties that had been encroached upon or taken over.
Written submissions of the parties
16. After the conclusion of the hearing, the court asked the parties to file written submissions. I will briefly set out their respective arguments below.
Submissions of the Plaintiffs
17. The submissions of the plaintiffs are dated 22nd October 2025. Their counsel identified the sole issue for determination as being whether the applicants should be appointed as trustees.
18. It was contended that the defendant had failed to carry out the trust duties. Counsel urged that attempts by the plaintiffs to reach out to him had failed. Counsel urged that the mere fact that the government had taken over the school did not divest the trustee of the duty to act.
19. The plaintiff’s counsel submitted that the court could act where the trustee had failed. Reference was made to sections 37 and 57 of the Trustee Act. It was urged that it is expedient for this court to appoint new trustees.
Submissions of the Defendant
20. The submissions of the defendant’s counsel are dated 8th October 2025. It was submitted that there were 2 issues:
a. Whether the plaintiffs have locus standi to institute the suit; and
b. Whether the plaintiffs have proved their case on the merits.
21. On the first issue, it was urged that the plaintiffs were not trustees under the indenture, nor the beneficiaries of the subject trust, nor were they personal representatives of the trustees, nor did they have any rights over the trust property.
22. On standing, it was urged that they lacked standing. Reference was made to the case of Akokor & another v Kitelapong & 2 others [2022] KEELC 2825 (KLR). It was urged that under section 37 of the Trustee Act, the power to appoint a new trustee lay with the continuing trustees, in their stead, persons nominated in their place to carry out such act, the surviving or continuing trustees, and the court. Counsel contended that they did not qualify under any of the above.
23. On the merits, it was denied that the suit had any merit. Counsel urged that there was no proof of the alleged incapacity and that the whims or inconvenience felt by the plaintiffs was insufficient cause to remove the defendant.
24. It was urged that even where the trust failed, the trust property would not revert to the estate of the settlor, but would be channelled to other charitable purposes. In support of this, the court was referred to the leading books on the law of Equity and Trust: Snell’s Equity and the Law of Trust.
25. The defendant prayed that the suit be dismissed with costs as the same was an abuse of the court process.
Analysis and Determination
26. I have considered the originating summons, the response thereof, the evidence tendered, as well as the written submissions of the parties. I agree that there are 2 issues:
i Whether the plaintiffs have standing to bring the claim now before the court; and
ii If the answer to the above question is in the affirmative, whether there is sufficient evidence to justify the removal of the defendant.
27. As already indicated, the trust is a public charitable trust. The law applicable to such a trust is the Trustee Act. Section 57 of the said Act states that:
“(1) An order under this Act for the appointment of a new trustee, or concerning any interest in land, stock or thing in action subject to a trust, may be made on the application of any person beneficially interested in the land, stock or thing in action, whether under disability or not, or on the application of any person duly appointed trustee thereof.
(2) An order under this Act concerning any interest in land, stock or thing in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the money secured by the mortgage.”
28. The said provision is clear that the application may only be made by a person beneficially interested in the land, stock or thing in action subject to the trust. It has been admitted that the applicants are not trustees; in fact, the defendant is the only trustee.
29. The effect of the foregoing is that, in my view, the plaintiffs lack standing. They are not “persons beneficially interested” in the land on which the school is erected, which would place them within the ambit of section 57 of the Trustee Act. The proper “interested persons’ would be those benefiting from the trust, i.e., the members of the local community in Malindi.
30. The only way they would be beneficially interested in the land is if the trust and the estate of Sheikh Ali Bin Salim were one and the same thing. Given that the trust is a public charitable trust, its property is not the property of Sir Ali Bin Salim's estate.
31. In the case of Akokor & another v Kitelapong & 2 others (Legal Representatives of The Estate of James Mariachi Kokita (Deceased)); Kokita & 3 others (Interested Parties) [2022] KEELC 2825 (KLR), the court stated that:
“The above provision is also rehashed in Rule 4 of the Trustees Rules. My interpretation of the above provision is that any order relating to an interest in land under the said Act can only be initiated by a person beneficially interested in the said land. The only other person authorized to apply for any orders under this Act is a person duly appointed trustee thereof.”
32. Since the plaintiffs have no standing, the suit fails in limine. That notwithstanding, I will consider the merit of the originating summons.
33. As the parties bringing the suit, they had the duty to prove their case by providing cogent evidence of the defendant’s incapacity. My view is that, quite apart from the allegations, no tangible evidence of incapacity was provided. The fact that the respondent wears glasses does not mean he is blind. There was no evidence of neglect in any other respect either. The defendant, in my view, properly explained that the school was taken over at a time when he wasn’t a trustee. That account is believable.
34. I am not persuaded that, even on the merits, the suit passes muster.
35. The upshot of the foregoing is that the suit is dismissed with costs to the defendant.
36. It is so ordered.
Dated and signed at Nairobi, this 19th day of June 2026.
1. The matter before the court arises out of a dispute between the descendants of Sheikh Ali Bin Salim over the running of a school created under a trust known as Sheikh Ali Bin Salim School Trust. The trust is also called Malindi School Trust. The intention of the settlor, then the Liwali (governor) of Mombasa, was to establish and endow a school at Malindi to encourage the education of Arab and Swahili children. The deed of trust was dated 18th July 1921 and was registered at the Mombasa Lands Registry on 28th September 1921 in volume LT – 28, and M – 1 Folio 418/4, 316/10, 327/3, 462/3, 126/10, 323/2 and 321/3, Files 805, 158, 159, 164, 231, 65, 162 and 161.
2. Pursuant to the objects of the trust, a school was established and endowed as Sir Ali Bin Salim Primary School. The school is now managed by the Government of Kenya and provides free basic education for hundreds of less privileged children in Malindi.
3. The plaintiff and the defendant agree that the trust created by their great-grandfather was a public charity trust and that the trust deed provides for the manner in which the trustees would be appointed, leave to hold office or be replaced. They further agree that the objects of the trust subsist. What is in contention is whether the sole surviving trustee has neglected his duties or is otherwise incapable of running the affairs of the trust on account of his residence in the Sultanate of Oman and of the alleged blindness and physical and intellectual incapacity. Further, it is urged that he failed to tender accounts and to account for the trust's funds, contrary to his fiduciary duties.
4. Seeking to have the court remove the defendant as the trustee of the subject trust, the plaintiffs filed the present action. They seek to be appointed as trustees in his place. They contend that the trust's charitable purposes will be better preserved that way. In support of their case, they allege that the defendant was unaware of the loss of some of the trust land and of the suit they filed with the assistance of the Muslims for Human Rights.
5. Naturally, the defendant denies that that is the case. He denied that the plaintiffs have locus standi to bring the instant originating summons and averred that the plaintiffs regard the trust as part of their great-grandfather’s estate, liable for distribution in succession proceedings, which is, in fact, not the case. The defendant filed a preliminary objection, which my brother Judge dismissed with costs, regarding the plaintiffs' standing.
Suit by the Plaintiffs
6. The suit was commenced by way of the originating summons. The prayers sought are:
i Whether the applicants, Soud Salim Soud and Abdullah Saud Al– Busaidi, should be appointed as new trustees in substitution for or in addition to the existing trustee of the Sheikh Ali Bin Salim School Trust, alias Malindi School Trust, pursuant to sections 37 and 42 of the Trustees Act, Cap 167 of the Laws of Kenya;
ii Whether the Respondent Col. Sulaiman Mohamed Al-Busaidi should be discharged and or removed as trustee of the Sheikh Ali Bin Salim School Trust, alias Malindi School Trust, for being in continued breach of Section 37(1) of the Trustees Act, Cap 167 of the Laws of Kenya; and
iii Whether the honourable court should decline the original signed trust deed lost and, in its place, declare the unsigned copy of the trust deed as a valid instrument for all interests and purposes of this suit.
7. The plaintiffs urged that the defendant lacked capacity to act as a trustee on account of his physical infirmity, that he had neglected his duties and failed to provide much-needed auxiliary support services for the school, “thereby endangering the objective of the trust and the properties”. They stated that the defendant was unaware of the existence of Malindi ELC Petition No. E016 of 2021; Board of Management of Sir Ali Bin Salim Primary School v Rabai Mining Ltd; and Muslims for Human Rights, National Museums of Kenya, and the Attorney General. It was urged that, as the defendant was not fit and was incapable of acting as a trustee, this honourable court ought to make necessary orders appointing the plaintiffs as trustees in addition to and or in substitution of the Respondent.
8. Various documents were attached, including the unsigned Trust Deed/indenture dated 18th July 1921, correspondence with the office of the Attorney General in 1921 regarding the “Arab School in Malindi”, and letters counsel for the plaintiffs exchanged with the defendant’s counsel.
Response by the Defendant
9. In opposition, the defendant filed a replying affidavit sworn on 2nd December 2022, in which he denied that the plaintiffs have the standing to challenge his standing as the trustee. He averred that the plaintiffs had not appreciated that the Trust was separate from the estate of Sheikh Ali Bin Salim, and that what they were seeking was to wind up the Trust and have the property distributed to the beneficiaries of the estate of Sheikh Ali Bin Salim.
10. Col. Sulaiman denied that he was ill, blind, or otherwise incapable of managing the trust. He prayed that the originating summons be dismissed.
11. His counsel filed a preliminary objection dated 26th May 2023 in which he sought to strike out the originating summons. Upon consideration, Magare J dismissed the same with costs of Kes 50,000/-. His reasons, as can be discerned from the ruling, were that the question as to whether the plaintiffs had locus standing could not be determined without the evidence, as the standing flowed from the question as to whether they were beneficiaries or trustees, “in the manner stipulated under Section 57 of the Trustees Act.”
The direction of the court
12. On 18th January 2024, the court identified the agreed facts as being that the trust is a public charitable trust and that Col. Sulaiman is a trustee. The issues were identified as being:-
i The capacity of the applicant;
ii Whether the trustee breached the trust;
iii Whether the reliefs sought could issue; and
iv Power of the court in removing and appointing the trustees.
13. The matter was heard by way of viva voce evidence.
Evidence of the Plaintiffs
14. The 1st plaintiff, Soud Salim Soud, testified on 23rd September 2024. He produced exhibits in support of their case and was cross-examined by Mr Omondi. He reiterated that the defendant was infirm, that he had failed to act with diligence as a trustee and that he should be removed. He prayed that he and his co-plaintiff be appointed in his place. In his view, the school wasn’t doing well.
Evidence of the Defendant
15. On his part, the defendant denied that he was infirm. He testified that the school was still serving the community in Malindi well. He stated, in particular, that he was happy with the school's status. He denied having deviated from the trust or its purposes. While admitting that the school property had been taken over by the Government of Kenya, he stated that it happened when he wasn’t a trustee. He was categorical that he wouldn’t seek its recovery from the government. He, however, stated that he was in the process of recovering other trust properties that had been encroached upon or taken over.
Written submissions of the parties
16. After the conclusion of the hearing, the court asked the parties to file written submissions. I will briefly set out their respective arguments below.
Submissions of the Plaintiffs
17. The submissions of the plaintiffs are dated 22nd October 2025. Their counsel identified the sole issue for determination as being whether the applicants should be appointed as trustees.
18. It was contended that the defendant had failed to carry out the trust duties. Counsel urged that attempts by the plaintiffs to reach out to him had failed. Counsel urged that the mere fact that the government had taken over the school did not divest the trustee of the duty to act.
19. The plaintiff’s counsel submitted that the court could act where the trustee had failed. Reference was made to sections 37 and 57 of the Trustee Act. It was urged that it is expedient for this court to appoint new trustees.
Submissions of the Defendant
20. The submissions of the defendant’s counsel are dated 8th October 2025. It was submitted that there were 2 issues:
a. Whether the plaintiffs have locus standi to institute the suit; and
b. Whether the plaintiffs have proved their case on the merits.
21. On the first issue, it was urged that the plaintiffs were not trustees under the indenture, nor the beneficiaries of the subject trust, nor were they personal representatives of the trustees, nor did they have any rights over the trust property.
22. On standing, it was urged that they lacked standing. Reference was made to the case of Akokor & another v Kitelapong & 2 others [2022] KEELC 2825 (KLR). It was urged that under section 37 of the Trustee Act, the power to appoint a new trustee lay with the continuing trustees, in their stead, persons nominated in their place to carry out such act, the surviving or continuing trustees, and the court. Counsel contended that they did not qualify under any of the above.
23. On the merits, it was denied that the suit had any merit. Counsel urged that there was no proof of the alleged incapacity and that the whims or inconvenience felt by the plaintiffs was insufficient cause to remove the defendant.
24. It was urged that even where the trust failed, the trust property would not revert to the estate of the settlor, but would be channelled to other charitable purposes. In support of this, the court was referred to the leading books on the law of Equity and Trust: Snell’s Equity and the Law of Trust.
25. The defendant prayed that the suit be dismissed with costs as the same was an abuse of the court process.
Analysis and Determination
26. I have considered the originating summons, the response thereof, the evidence tendered, as well as the written submissions of the parties. I agree that there are 2 issues:
i Whether the plaintiffs have standing to bring the claim now before the court; and
ii If the answer to the above question is in the affirmative, whether there is sufficient evidence to justify the removal of the defendant.
27. As already indicated, the trust is a public charitable trust. The law applicable to such a trust is the Trustee Act. Section 57 of the said Act states that:
“(1) An order under this Act for the appointment of a new trustee, or concerning any interest in land, stock or thing in action subject to a trust, may be made on the application of any person beneficially interested in the land, stock or thing in action, whether under disability or not, or on the application of any person duly appointed trustee thereof.
(2) An order under this Act concerning any interest in land, stock or thing in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the money secured by the mortgage.”
28. The said provision is clear that the application may only be made by a person beneficially interested in the land, stock or thing in action subject to the trust. It has been admitted that the applicants are not trustees; in fact, the defendant is the only trustee.
29. The effect of the foregoing is that, in my view, the plaintiffs lack standing. They are not “persons beneficially interested” in the land on which the school is erected, which would place them within the ambit of section 57 of the Trustee Act. The proper “interested persons’ would be those benefiting from the trust, i.e., the members of the local community in Malindi.
30. The only way they would be beneficially interested in the land is if the trust and the estate of Sheikh Ali Bin Salim were one and the same thing. Given that the trust is a public charitable trust, its property is not the property of Sir Ali Bin Salim's estate.
31. In the case of Akokor & another v Kitelapong & 2 others (Legal Representatives of The Estate of James Mariachi Kokita (Deceased)); Kokita & 3 others (Interested Parties) [2022] KEELC 2825 (KLR), the court stated that:
“The above provision is also rehashed in Rule 4 of the Trustees Rules. My interpretation of the above provision is that any order relating to an interest in land under the said Act can only be initiated by a person beneficially interested in the said land. The only other person authorized to apply for any orders under this Act is a person duly appointed trustee thereof.”
32. Since the plaintiffs have no standing, the suit fails in limine. That notwithstanding, I will consider the merit of the originating summons.
33. As the parties bringing the suit, they had the duty to prove their case by providing cogent evidence of the defendant’s incapacity. My view is that, quite apart from the allegations, no tangible evidence of incapacity was provided. The fact that the respondent wears glasses does not mean he is blind. There was no evidence of neglect in any other respect either. The defendant, in my view, properly explained that the school was taken over at a time when he wasn’t a trustee. That account is believable.
34. I am not persuaded that, even on the merits, the suit passes muster.
35. The upshot of the foregoing is that the suit is dismissed with costs to the defendant.
36. It is so ordered.
Dated and signed at Nairobi, this 19th day of June 2026.