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ELCOtherNot stated in the judgment as provided· [2017] KEELC 1771 (KLR)

Beverly Wamburi King’ori v David Kiprotich Arap Too & 2 others [2017] KEELC 1771 (KLR)

Environment and Land Court
28 September 2017
NMN.A. Matheka
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land petition because the filer held a power of attorney without first getting the court's approval.

What this practically means

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Executive summary

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The petitioner filed a petition dated 5th December, 2016 seeking various orders concerning land parcel KAKAMEGA/SERGOIT/44, together with a notice of motion of even date seeking interim orders. She later filed a further notice of motion dated 6th March, 2017 seeking, among other things, that the original and skeleton files in Kakamega Misc. Application No. 20 of 2006 be brought before the court so that orders issued by Wahome SRM on 14th September, 2016 could be suspended or rescinded and their validity determined. The 1st respondent raised a preliminary objection under Order 9 Rule 2 of the Civil Procedure Rules, 2010, contending that the petitioner, acting through her donee of power of attorney, Richard Njue Karugu, had failed to seek the court's approval before filing the suit and application. The petitioner opposed the objection, arguing she sued in her capacity as administrator of the estate of the late Wilson Kingori Wambui, that the donee had merely signed (not deponed to) the supporting affidavit, that Order 9 Rule 2 is procedural and should yield to Article 159(2) of the Constitution and the overriding objective, and that an affidavit is not mandatory for a petition under Rule 11(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Matheka J, following Talmac Ltd v Roberto Macri and Jack J. Khanjira v Safaricom Ltd, held that a donee cannot act or seek approval retrospectively. Upholding the preliminary objection, the court struck out the petition and notice of motion with costs to the 1st respondent.

Key legal issues

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01

Whether prior leave of the court is required before a donee of a power of attorney files a petition or notice of motion

Holding

Yes. Order 9 Rule 2 of the Civil Procedure Rules requires that persons holding powers of attorney act subject to the approval of the court in any particular suit; filing without such approval is a violation justifying striking out.

Reasoning

The court relied on Order 9 Rule 2, which subjects persons holding powers of attorney to the court's approval in any particular suit. Adopting the reasoning in Talmac Ltd v Roberto Macri and Jack J. Khanjira v Safaricom Ltd, Matheka J held that every appearance, act or application by an agent requires prior court approval. The donee here signed the supporting affidavit, and approval cannot be granted retrospectively. The preliminary objection was therefore upheld and the petition and notice of motion struck out.

p. 3
02

Whether the petitioner's claimed capacity as administrator of the estate exempted her from the leave requirement

Holding

The court rejected this argument, finding the petition and application were in fact filed by a donee of the power of attorney without leave.

Reasoning

The petitioner argued that the heading and averments showed she sued as administrator of the estate of the late Wilson Kingori Wambui, a capacity not requiring leave, and that the donee merely signed the affidavit without deponing to anything. The court nevertheless found that the notice of motion and the petition upon which it hinged were filed by a donee of power of attorney without leave, in violation of Order 9 Rule 2, and did not accept the administrator-capacity argument as a cure.

p. 3

Legal principles established

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  • A donee of a power of attorney must obtain the prior approval of the court before filing suit or making applications on behalf of a party, and such approval cannot be sought retrospectively.

Court orders

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  1. 1.The petition and notice of motion dated 6th March, 2016 are struck off
  2. 2.Costs of the preliminary objection to the 1st respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 2
  • Civil Procedure Rules, 2010Sections 1(A) and 1(B)
  • Constitution of KenyaArticle 159(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 11(1)

Cases cited (6)

  • Carolyne Mpenzwe Chipande v. Wanje Kazungu Baya
    [2014] eKLR
  • Kasimu Sharifu Mohamed v. Timbi Limited
    [2017] eKLR
  • Tsuma Kenga Mwidzembe vs. Kerembo Anthony Masha
    (2016) eKLR
  • Jack J. Khanjira and Anor v. Safaricom Ltd
    (2012) eKLR
  • Microsoft Corporation v. Mitsumi Computer Garage Ltd. & Another
    (2001) eKLR
  • Talmac limited Versus Roberto Macri and 4 Others
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (petition for enforcement of rights concerning land)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Beverly Wamburi King’ori v David Kiprotich Arap Too & 2 others [2017] KEELC 1771 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1771/eng@2017-09-28

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