In Re T W M, D M & K M [2014] KEHC 2119 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

MISC. APP. NO. 126 OF 2014.

IN THE MATTER OF THE LAND ACT 2012.

AND

IN THE MATTER OF THE LAND REGISTRATION ACT 2012

AND

IN THE MATTER OF THE ENVIRONMENT & LAND COURT ACT, 2011

AND

IN THE MATTER OF THE LAND CONTROL ACT CAP 302 LAWS OF KENYA.

AND

IN THE MATTER OF L.R.NOS. [PARTICULARS WITHHELD] IN THE NAMES OF T W M, D M, K M, D M (MINOR) & D K (MINOR).

AND

IN THE MATTER OF CHARGE OVER L.R.NOS. [PARTICULARS WITHHELD]

AND

IN THE MATTER OF T W M & K M W-

BORROWERS.

AND

AND IN THE MATTER OF AN APPLICATION

BY T W M, D M  & K M ……….. APPLICANTS.

R U L I N G.

This  ruling relates to the exparte  application  through  the notice of motion  dated 14th October, 2014 filed by T W M, D M and K  M , thereafter  referred  to as 1st and 3rd Applicants through  M/S. Maloba & co. Advocates . The application is based on the following five grounds on the face of the application:

‘’a) L.R.NO. [ particulars withheld]  registered in joint names of 1st Applicant and 2nd (two)  minors, namely D M and D K.

b) The 1st Applicant is the biological parent /mother of the  minor children.

c) The applicant wish to use titles to the above land parcels  as collateral to obtain a loan of Kshs.7,000,000/= from the   Kenya Women Micro Finance Bank Limited  to boost their    business which business they use to sustain their family.

d) Due to the age of the children, they cannot give consent   to charge as required by the law hence the need to seek   for leave from this court.

e) The applicants will properly apply the money.’’

The application is also supported by the supporting and further affidavits of T W M sworn on 14th and 22nd October, 2014 respectively in which she among others depones to the following;

That the  deponent  and K M W  who are husband and wife,  are the parents to the 2nd and 3rd Applicants and the two minors  namely,  D M  and D K.

That Land parcels [particulars withheld] were transferred by K M W to the Applicants and the two minors in the year 2010.

That the deponent and K M W are desirous of borrowing Kshs.7,000,000/= from Kenya Women Micro Finance Bank Limited.

That the deponent and her husband desires to charge the three parcels of land as collateral for the loan in (c) above  and have obtained the  consent of the 2nd and 3rd Applicants who are of majority age.

That the applicants pray for this court to give the consent on behalf of the two minors to charge the three properties.

That the 1st Applicant and her husband as the borrowers have under taken to ‘’apply the loan wisely for the benefit of our business and our children as a whole.’’

The application is indicated to be brought under sections 3A of the Civil Procedure Act, 13 of the Environment and Land Court Act, 2011, 47 of the Land Registration Act 2012 and sections 78 and 80 of the Land Act 2012.

The court has carefully considered the grounds on the application, submission by counsel, contents of the supporting and further affidavits and find as follows:

That none of the sections of the law upon which this application is brought, confers upon this court the power to give consent on behalf of minors to the charging of the immovable properties registered in their names as collateral for loans. The provision of section 3A of the Civil Procedure Act restates the inherent powers of the court for the ends of justice and to prevent abuse  of courts process while section 78  and 80  of the Land Act  deals with the application  of Part VII of the Act to the charges and the matters that must be set out in a charge among others. The provisions of section 13 of the Environment and Land Court  Act set out the jurisdiction of this court is  pursuant  to Article  162 (2) (b) of the Constitution. The powers set out under section 13 above does not include giving consent to charge on behalf of minors.  The provision of section 47 of the Land Registration Act deals with the Registration of minors in land.  It states as follows;

‘’Minors.

47. 1) The name of a person under the age of  eighteen years may be entered in the   register to enable the minor’s  interest  to be held  in trust and shall be registered  under the names of the guardian either on first registration or as a transferee or on   transmission.

2) Nothing in this section enables a person under eighteen and if the Registrar years of age to deal with land or any interest in land by virtue of such registration and if the Registrar knows a child has been registered, the Registrar shall enter a restriction accordingly.

3) If a disposition by a minor whose minority   has not been disclosed to the Registrar has  been registered, that disposition may not be set aside only on the grounds of  minority.’’

That the transfer of the three suit land to the minors and the three others can only be taken as a gift by K M W who is their father and husband.  The provisions of section 48 and 49 of the Land Registration Act provide on how land interests in land registered in the names of persons with legal incapacity like two minors herein can be dealt with.

That as the titles of the minors to the suit lands is not though a guardian, any person wishing to have a dealing over the minors interest would need to make an application in the appropriate court to be appointed as such first and thereafter have such appointment registered in the title.  The Applicants herein are not registered on the three titles as trustees of the minors

That had the registration of the minors  with the three  parcels of land been through  an order of the court, like through Probate proceedings, then the court would  have retained jurisdiction  to have a say on the disposition of the properties as provided  for example under  section 37 of the Law of Succession Act Chapter  160 of Laws  of Kenya.

That from the foregoing, the court finds no merit in the exparte application and the same is dismissed.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 30TH DAY OF OCTOBER, 2014.

IN THE PRESENCE OF;- NONE.

JUDGE.