Mayfair Holdings Ltd v Ahmed
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Compulsory registration of the power of attorney under the Registration of Documents Act
Registration was not compulsory because the power of attorney was registrable under the Registered Land Act and thus fell within the proviso to section 4; the two-month period in section 9 was inapplicable and the document was admissible in evidence.
The court construed 'registrable' as 'capable of being registered'. A document qualifying for registration under the Registered Land Act is exempted from compulsory registration under the Registration of Documents Act. Failure to comply with a condition of the Registered Land Act does not make the document compulsorily registrable under cap 285, nor inadmissible under section 18.
Verification of a foreign power of attorney under the Registered Land Act
A power of attorney executed in England required verification by a notary public under section 110; it was not verified, so an instrument of disposition executed under it would not have been accepted by the Registrar and the agreement was unenforceable.
Section 114(1) requires a power of attorney to be executed and verified in accordance with sections 109 and 110 before an instrument executed by an agent is accepted. The Fourth Schedule to the Rules prescribes a notary public for instruments executed abroad. Non-registration under section 116(1) or the Registration of Documents Act was immaterial; the verification defect struck at the root of the agreement.
Agency and authority of the agent to bind the principal
Whether Shakeel had authority to bind his father was a question of fact within the law of principal and agent; procedural recognition as agent under Order 3 rule 2 is distinct from substantive agency. On the facts, the transaction was not final and binding because all parties knew the 1984 power did not confer unconditional authority.
The court distinguished recognised agency for procedural purposes from substantive agency. The handing back of the deposit cheque, the preparation of forms for a fresh power of attorney under Kenyan law which the father refused to sign, and the retention of the cheque showed the parties knew the 1984 power was insufficient; it would be unjust to hold the principal to a bargain his mind was never directed to.
Payment of the deposit
Hancox CJ respectfully disagreed with the trial judge's finding on the passage of the cheque, holding that by giving the cheque to their joint advocate Mr Gilani was in fact and in law giving it to Shakeel; but the finding was not decisive of the result.
Applying Mwanasokoni v Kenya Bus Services on reversal of first-instance factual findings, the court held it was not possible to reach a finding contrary to plain evidence: the agreement itself acknowledged payment of the deposit, and the cheque was given to the advocate acting for both parties. However, these findings were not decisive since the action failed on the validity of the power of attorney.
Costs discretion against a successful defendant
The trial judge was right to take the conduct of both donor and donee into account; the discretion was judicially exercised and the order that each party bear their own costs was correct.
Applying Ritter v Godfrey and Donald Campbell v Pollak and section 27(1) of the Civil Procedure Act, costs follow the event unless there is good reason otherwise. The respondent's donation of an unlimited power of attorney and the son's conduct together precipitated the litigation; there was no intrinsic merit in the defendant's case, justifying the judge's discretion.
Legal principles established
#- A power of attorney that qualifies for registration under the Registered Land Act falls within the proviso to section 4 of the Registration of Documents Act, so its registration under that Act is not compulsory and it is not inadmissible in evidence for want of such registration.
- Registration of a power of attorney under section 116 of the Registered Land Act is not obligatory on the donor or donee; its purpose is protection of third parties, and lack of registration does not invalidate an agreement.
- A power of attorney executed in a foreign country must be verified by a notary public under section 110 of the Registered Land Act; without verification an instrument executed under it cannot be accepted by the Registrar and the agreement founded on it is unenforceable.
- A successful defendant's costs may only be refused for conduct that induced the plaintiff to bring the action; the discretion must be judicially exercised on valid grounds.
- Dealings with land registered under the Registered Land Act must comply with that Act; inconsistent written law or practice does not apply.
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs of the appeal
- On appeal from
- High Court of Kenya at Kisumu
- High Court Civil Case No 215 of 1987
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal jurisdiction (civil appeal from High Court decision)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wakufwa & 40 others (Suing on their own behalf and on behalf of 37 others) v Maru[2023] KEELC 20996 (KLR)25 Oct 2023applied
- Abdis World Group of Companies Limited v Nandrat & 2 others[2023] KEELC 17884 (KLR)18 May 2023followed
- Kihara (Suing as a Legal Representative of Priscilla Wambui Kihara) v Mbagu & another[2022] KEELC 13272 (KLR)30 Sept 2022followed
Cite this brief
#Cite this brief
Caselaw, "Mayfair Holdings Ltd v Ahmed", Case Analysis (1990). Civil Appeal 18 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/66/eng@1990-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.