Kasimu Sharifu Mohamed v Timbi Limited [2017] KEELC 2796 (KLR)
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
#Key legal issues
#Whether the application was irregularly filed for want of locus standi of the deponent
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.
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.
Whether the alleged mistake of the Defendant's former counsel warranted review of the closure orders and re-opening of the case
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.
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.
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.The Application dated 17th October, 2016 is dismissed with costs
- 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.