Kiore (In his Capacity as the Donee of Power of Attorney & Covenants beyond death no IP/A/64940/1) & another v Cabinet Secretary, Ministry of Lands, Housing & Urban Development & 3 others (Civil Appeal 418 of 2018) [2025] KECA 1122 (KLR)
The bottom line
#Kenya's Court of Appeal quashed the Registrar's revocation of a power of attorney because the holders were never given a chance to be heard first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was an alternative remedy available to the appellants under the pending succession proceedings hence the judicial review application fell afoul of section 9(2) of the Fair Administrative Actions Act
- 2.Whether the appellants were heard before the decision sought to be quashed was made
- 3.Whether the said decision was ultra vires the powers of the 1st respondent
Key legal issues
#Exhaustion of alternative remedies under section 9(2) of the Fair Administrative Actions Act
The pending succession causes were not an available, effective and sufficient alternative remedy for challenging the revocation/deregistration of the power of attorney, so the bar in section 9(2) did not apply
The Court adopted the Supreme Court's guidance in the Abidha Nicholus case and the African Commission's Dawda Jawara criteria: a remedy must be available, effective and sufficient. A succession cause determines entitlement to a deceased's estate and is not a forum for quashing an administrative decision; waiting would have risked the prescribed time for quashing running out. The subject of the dispute was the revocation, not a succession dispute.
Whether the appellants were heard before the recall, revocation and deregistration of the power of attorney
The Gazette Notice was issued without prior notice or reasons; the decision to recall had already been made at the time of publication, breaching Article 47(1) of the Constitution and section 4(3) of the Fair Administrative Action Act
There was no evidence the donee was notified of the intention to revoke or deregister before Gazette Notice No.8901 was published, and no reasons were given until a letter of 29th December 2016. The notice did not call upon the appellant to show cause. Reliance was placed on General Medical Council v Spackman and Onyango Oloo: breach of natural justice renders the decision void regardless of the outcome.
Whether the decision was ultra vires the powers of the 1st respondent
Not determined, being unnecessary in light of the natural justice finding
Having found that the appellants were not heard before the decision, the Court considered it unnecessary to address the ultra vires question and declined to make any finding on the scope of the Registrar's powers.
Legal principles established
#- Pending succession proceedings are not an adequate alternative remedy where the grievance is against an administrative decision that only judicial review can quash within a prescribed time
- An administrative action taken without prior and adequate notice and an opportunity to be heard, in breach of Article 47(1) and section 4(3) of the Fair Administrative Action Act, is void
- Certiorari merely quashes the impugned decision and leaves the decision maker free to take a lawful next step
Court orders
#- 1.Appeal allowed; judgment in Nairobi ELC JR 12 of 2017 of 20th September 2018 set aside
- 2.Notice of Motion dated 13th June 2017 allowed in substitution
- 3.Order of certiorari issued quashing the 1st respondent's Gazette Notice No.8684 of 20th November 2015 revoking Power of Attorney and Covenants beyond Death No. IP/A 64940/1
- 4.Order of mandamus compelling the 2nd respondent to reinstate the registration of the Power of Attorney and Covenants beyond Death No. IP/A 64940/1
- 5.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Environment and Land Court)
- Nairobi ELC JR 12 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's judicial review decision (judgment of 20th September 2018 in Nairobi ELC JR 12 of 2017)
Relief refused
#Costs to the ex-parte applicants
The substantive dispute revolves around an unresolved estate, so the Court declined to award costs
Costs
No order as to costs
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 grant of an order of certiorari neither prohibits the taking of an action nor compels the taking of an action. It simply quashes the impugned decision and leaves it to the decision maker to decide on what step to take next.
In our view, the pending succession proceedings were not adequate and effective avenues in addressing the appellants' grievances. A succession cause is not an avenue for quashing an administrative decision.
We allow it and set aside the judgement in Nairobi ELC JR 12 of 2017 of 20th September 2018.
We issue an order of mandamus compelling the 2nd respondent by himself or through the relevant registrar acting at the behest of the 2nd respondent to reinstate the registration of the Power of Attorney and Covenants beyond Death No. IP/A 64940/1.
As the substantive dispute revolves around the estate of a deceased person, which is yet to be resolved, we make no order as to costs.
Issues in the judgment
#The judgment misspells 'General Medical Council v Spackman' as 'Sparckman' when citing it as an appellant authority, then spells it correctly when the court adopts it; the same case appears under two spellings in the list of authorities
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiore (In his Capacity as the Donee of Power of Attorney & Covenants beyond death no IP/A/64940/1) & another v Cabinet Secretary, Ministry of Lands, Housing & Urban Development & 3 others (Civil Appeal 418 of 2018) [2025] KECA 1122 (KLR)", Case Analysis (2025). Civil Appeal (Nairobi), judgment delivered 20th June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1122/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.