Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedCase number not stated in judgment (Originating Summons pending since 2007; ruling on Defendant's Application dated 17th October, 2016)· [2017] KEELC 2796 (KLR)

Kasimu Sharifu Mohamed v Timbi Limited [2017] KEELC 2796 (KLR)

Environment and Land Court
12 May 2017
1,401 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A company's attempt to revive its decade-old land case failed because the affidavit supporting it lacked proper legal authority and no real mistake by its lawyer was proved.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Malindi disposed of the Defendant's (Timbi Limited's) application dated 17th October 2016 seeking review and setting aside of orders closing the plaintiff's case and directing written submissions, a court visit to suit Plot No. 503 (locus in quo), and a re-opening of the case. The application was supported by an affidavit of Shabir Hatim Ali, who initially deponed as the registered power-of-attorney agent of Gianfranco Vitali, a director of Timbi Limited, but in a Further Affidavit claimed to be a director of the company himself. The Plaintiff opposed the application and filed a preliminary objection invoking Order 9 Rules 1(a) and 2(a) of the Civil Procedure Rules, 2010, contending that the deponent had no court approval to act under the power of attorney and no authority from the company. The court found the application irregularly filed: under Order 9 Rule 2(a), holders of powers of attorney require court approval to act for their principals, per Tsuma Kenya Mwidzembe v Kerembo Anthony Masha (2016) eKLR, and since the defendant was Timbi Limited, the deponent lacked the company's authority. On the merits, applying Gate Insurance Co. Ltd v Jimmy Kiemba (2016) eKLR, the court held that no mistake of counsel was proved: the suit, pending since 2007, had by consent proceeded by affidavit evidence and written submissions, and the letters relied upon had always been in the Defendant's possession. Invoking the overriding objective, the court refused to arrest judgment or re-open the case and dismissed the application dated 17th October 2016 with costs.

Key legal issues

#
01

Whether the application was irregularly filed for want of locus standi of the deponent

Holding

The application and supporting affidavit were irregular: the deponent swore as attorney of Gianfranco Vitali under a general power of attorney without the court's approval required by Order 9 Rule 2(a), and the defendant being Timbi Limited, the deponent (a director) had no authority from the company to commence the application.

Reasoning

The deponent described himself in the supporting affidavit as the registered power-of-attorney agent of Gianfranco Vitali, but in his Further Affidavit claimed to be a director of Timbi Limited. Under Order 9 Rule 2(a), holders of powers of attorney require court approval to act for principals, which was absent. Further, since the defendant was the company and not Vitali, the deponent lacked the company's authority. The application therefore failed on that ground alone.

p. 3
02

Whether the alleged mistake of the Defendant's former counsel warranted review of the closure orders and re-opening of the case

Holding

No mistake of counsel was proved; the letters the Defendant relied on were always in its possession since the suit's inception in 2007, and no instructions contrary to what counsel did were shown. No injustice or hardship would result.

Reasoning

The suit, pending since 2007, was by consent of both counsel determined on affidavit evidence with written submissions. There was no evidence the former advocate acted contrary to instructions; the letters relied on had always been in the Defendant's possession. Following Gate Insurance, the nature of any counsel's mistake must be sufficiently brought home to the court, which was not done. The overriding objective counsels against repeated variation of orders on such grounds.

p. 3

Legal principles established

#
  • A person holding a power of attorney may only appear or act on behalf of a principal with the approval of the court under Order 9 Rule 2(a) of the Civil Procedure Rules
  • Counsel's mistake may on occasion justify a favourable exercise of discretion, but the nature of the mistake must be sufficiently brought home to the court
  • The overriding objective discourages courts from repeatedly varying their orders merely because a party, on fresh advice, is dissatisfied with its former advocate's conduct of the case

Court orders

#
  1. 1.The Application dated 17th October, 2016 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 1(a)
  • Civil Procedure Rules, 2010Order 9 Rule 2(a)

Cases cited (2)

  • Tsuma Kenya Mwidzembe vs. Kerembo Anthony Masha
    (2016) eKLR
  • Gate Insurance Co. Ltd vs. Jimmy Kiemba, Treasurer Nairobi County Government and 2 others
    (2016) eKLR
Jurisdiction invoked
The court's power to review its own orders (the Defendant sought review of orders closing the case and directing written submissions); Civil Procedure Rules, 2010, Order 9 Rules 1(a) and 2(a) invoked on the regularity of filing

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kasimu Sharifu Mohamed v Timbi Limited [2017] KEELC 2796 (KLR)", Case Analysis (2017). Case number not stated in judgment (Originating Summons pending since 2007; ruling on Defendant's Application dated 17th October, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2796/eng@2017-05-12

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