Janmohamed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v Lagat & 4 others; Tiony & another (Intended Interested Party)
The bottom line
#Supreme Court rejects power of attorney holders' bid to join ongoing case as interested parties.
What this practically means
#The Supreme Court of Kenya dismissed an application by two men who held a power of attorney from a person already involved in a court case. They wanted to become interested parties in the case, but the court said a power of attorney cannot be used to bring a new person into proceedings when the original party is already there. The applicants also failed to show any personal stake or loss they would suffer if left out. The application was thrown out with costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be admitted as interested parties in the petition
Key legal issues
#Whether the applicants, as holders of a Power of Attorney from a party already in the proceedings, can be joined as interested parties.
No, the Power of Attorney cannot be activated on behalf of the very person who is already a party.
The court found that Nathaniel K Lagat, the grantor of the Power of Attorney, was an active party in the proceedings before the trial court and Court of Appeal. The applicants sought to be joined on his behalf, but the court held that the Power of Attorney could not be used to introduce a new party when the principal was already represented. The applicants also failed to demonstrate any personal interest or stake in the matter distinct from that of Lagat.
Whether the applicants met the requirements for joinder as interested parties under rule 24 of the Supreme Court Rules 2020.
No, the applicants did not meet the requirements as they failed to demonstrate a personal interest or stake that is clearly identifiable and proximate, or the prejudice they would suffer if not joined.
The court applied the principles from the Mumo Matemu and Muruatetu cases, which require an interested party to show a personal interest or stake in the proceedings. The applicants merely held a Power of Attorney from a party already in the suit and did not show any independent interest or prejudice. Their arguments about fraud and ownership of a different property were not relevant to the petition before the court.
Legal principles established
#- A power of attorney cannot be used to join a new party when the principal is already a party to the case.
- An applicant for joinder must show a clear, personal, and proximate interest in the case.
- The applicant must also demonstrate the specific prejudice they would suffer if not joined.
- General allegations of fraud or ownership of different property do not meet the joinder test.
- The Supreme Court applies the Mumo Matemu and Muruatetu principles for joinder of interested parties.
Court orders
#- 1.The notice of motion dated January 17, 2023 and lodged on January 24, 2023, is hereby dismissed
- 2.The costs of this application shall be borne by the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No 254 of 2019
- Jurisdiction invoked
- rule 24 of the Supreme Court Rules 2020
Relief refused
#Leave to be admitted as interested parties
The applicants have not set out any personal interest or stake that is clearly identifiable and proximate, or the prejudice they are likely to suffer in case of non-joinder
Costs
The costs of this application shall be borne by the applicants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Power of Attorney cannot be activated on behalf of the very person, who has been and remains a party to these proceedings.
The applicants have not set out any personal interest or stake that is clearly identifiable and proximate, or the prejudice they are likely to suffer in case of non-joinder.
The notice of motion dated January 17, 2023 and lodged on January 24, 2023, is hereby dismissed;
The costs of this application shall be borne by the applicants.
Key timeline
#Practical implications
#Joinder via power of attorney blocked
Lawyers should not rely on a power of attorney to add a new party when the grantor is already a party. The Supreme Court made clear that the power of attorney cannot be 'activated' to introduce a distinct interest. Instead, advise clients to show their own independent stake or prejudice, as required under the Mumo Matemu and Muruatetu tests.
No backdoor entry into litigation
Businesses that hold a power of attorney for someone already in a case cannot use that document to join the litigation themselves. If you believe a court decision will affect your business, you must demonstrate a direct, personal interest—not just act on behalf of another party. The court will not allow a 'proxy' interested party.
Personal interest required for joinder
Individuals cannot become interested parties in a court case simply because they hold a power of attorney for someone else. You must show that you have a personal stake in the outcome—for example, that you own property or will suffer a specific loss. The court will not let you join just to argue about fraud or ownership of a different property.
Frequently asked questions
#Can a power of attorney holder be joined as an interested party in a Kenyan court case?+
No, the Supreme Court of Kenya has ruled that a power of attorney cannot be used to join a new party when the person who gave the power is already a party. The holder must show their own personal interest and prejudice, not just act on behalf of the principal.
What is the test for joinder as an interested party in the Supreme Court of Kenya?+
Under the Mumo Matemu and Muruatetu principles, an applicant must show a personal interest or stake that is clearly identifiable and proximate to the case. They must also demonstrate the specific prejudice they would suffer if not joined. General allegations are not enough.
What happens if you fail to show a personal interest in a joinder application in Kenya?+
The court will dismiss your application. In the Tiony Kimaiyo case, the Supreme Court rejected the joinder because the applicants only held a power of attorney and did not prove any independent interest or prejudice. They also had to pay the costs of the application.
Can you use a power of attorney to represent someone in a Kenyan court case?+
Yes, but only if the principal (the person who gave the power) is not already a party. The Supreme Court has clarified that the power of attorney cannot be activated on behalf of a person who is already a party to the proceedings. It cannot be used to create a new party.
Cite this brief
#Cite this brief
Caselaw, "Janmohamed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v Lagat & 4 others; Tiony & another (Intended Interested Party)", Case Analysis (2023). Petition 17 (E021) & 24 (E027) of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/64/eng@2023-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.