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ELCPartially AllowedNot stated in judgment· [2014] KEELC 356 (KLR)

Samuel Kipkurui Kuto v Charles Maina Njuguna & others [2014] KEELC 356 (KLR)

Environment and Land Court
16 June 2014
MSMunyao Sila
2,218 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed a lawsuit to be handed over to another person, but only because he held a power of attorney.

What this practically means

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Executive summary

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The plaintiff, registered in 2003 as proprietor of Uasin Gishu/Kondoo/472 after obtaining letters of administration to the estate of his grandfather Kuto Boit, sued in 2009 seeking revocation of the 1st defendant's title, alleging the 1st defendant was fraudulently registered on the strength of a non-existent court order procured in collusion with the 2nd defendant, the District Land Registrar. The 1st defendant's case was that he purchased the land in 1978, obtained a Land Disputes Tribunal award (Eldoret Chief Magistrate's Court Award No. 27 of 2003), and was registered as proprietor in 2005 pursuant to a decree. By an application dated 30 August 2013 under Order 24 of the Civil Procedure Rules, the plaintiff sought to assign the suit to his father, Daniel Kimogony Kuto, claiming he held the land as trustee for his father's family and was unable to attend court. The 1st defendant opposed, arguing that no leave had been sought, that assignment of land interest required registration under Section 28(b) of the Registered Land Act, and that the plaintiff could not assign responsibilities as a legal representative without following succession procedure. The court held that while Order 24 Rule 8 permits assignment of a suit upon demonstrated devolution of interest, the plaintiff failed to demonstrate such devolution, being registered as absolute proprietor rather than administrator or trustee. However, because the plaintiff had donated a registered power of attorney over the suit to Daniel Kimogony Kuto, the court, in its discretion and the interests of justice, allowed the application solely on that basis, despite the power having been granted after filing. The court made no orders as to costs.

Key legal issues

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01

Whether a suit can be assigned under Order 24 Rule 8 of the Civil Procedure Rules

Holding

A suit can be assigned where interest in it has devolved to another person, with leave of court, but the devolution of interest must be demonstrated

Reasoning

Order 24 principally covers assignments upon death or bankruptcy, but Rule 8 covers general assignment during the pendency of a suit. The person upon whom the interest has devolved may be joined or the suit deemed continued. However, the transfer of interest must be demonstrated so that litigants do not hand over suits under the guise of assignment.

p. 3
02

Whether the interest had devolved to Daniel Kimogony Kuto

Holding

No devolution was demonstrated; the plaintiff was registered as absolute proprietor, not as administrator or trustee

Reasoning

The court examined the title deed and found the plaintiff registered as absolute proprietor. He did not sue as administrator of the estate of Kuto Boit, nor was he registered as trustee, so the claimed grounds of assignment (trusteeship, devolution from the estate) were unsupported. The succession cause was assumed to have distributed the land to the plaintiff as new owner.

p. 4
03

Whether the power of attorney cured the defective application

Holding

Yes - the court exercised discretion to consider the application in light of the power of attorney despite it having been donated after the application was filed

Reasoning

The power of attorney placed the donee in the shoes of the donor, removing the need to demonstrate any interest. Although registration of the power before filing would have been proper and the application technically premature, dismissing it would only compel the filing of a fresh identical application, so the court allowed it in the interests of justice.

p. 4

Legal principles established

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  • A suit may be assigned by leave of the court under Order 24 Rule 8, but the applicant must first demonstrate how the interest in the suit has become vested in the person to whom it is assigned
  • A donee of a power of attorney stands in the shoes of the donor and need not demonstrate any personal interest in the suit

Court orders

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  1. 1.The application dated 30 August 2013 seeking assignment of the suit to Daniel Kimogony Kuto is allowed, solely because the donee holds a power of attorney
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 8
  • Registered Land Act (CAP 300) (repealed)Section 28(b)
  • Order 27 Rule 8 (Civil Procedure Rules)leave requirement

Cases cited (1)

  • Telkom Kenya Limited v Jeremiah Achila Gogo
    Court of Appeal at Kisumu, Civil Appeal No. 153 of 2004, (2007) eKLR
Jurisdiction invoked
Order 24 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Kipkurui Kuto v Charles Maina Njuguna & others [2014] KEELC 356 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/356/eng@2014-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.