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ELCDismissedELC Civil Suit No. 145 of 2017· [2018] KEELC 1278 (KLR)

Andrew Wasswa Atetwe v Registered Trustee the General of the Salvation Army & 2 others [2018] KEELC 1278 (KLR)

Environment and Land Court
5 October 2018
LKL. KOMINGOIAOA. OMOLLO
814 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that holding a power of attorney to represent someone in court does not entitle you to fees or property rights.

What this practically means

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Executive summary

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The plaintiff, a self-described senior soldier of the Salvation Army, sued the Registered Trustee and Salvation Army officials seeking a mandatory injunction restraining his eviction from the suit premises and payment of costs for representing the defendants in court litigation, either as agreed or at one percent of the value of the property defended, relying on a power of attorney granted to him in 2006 by a Territorial Commander of the Salvation Army for Kenya East Territory. He also invoked the first defendant's Articles of Association, which he argued entitled members to reasonable remuneration for services rendered. The defendants did not enter appearance or file a defence, and interlocutory judgment was entered. The court considered the pleadings, evidence, exhibits and written submissions and framed a single issue: whether the plaintiff had made a good case against the defendants. The court found that the defendants had been represented in the lower court proceedings by an advocate, S. O. Oguk, while the plaintiff merely appeared as a witness. The power of attorney authorized him to appear as a representative to give evidence, not as an advocate, and did not entitle him to fees or confer any entitlement to the defendants' properties. Under Order 9 rule 2(a) of the Civil Procedure Rules, persons holding powers of attorney may act as recognized agents only subject to court approval, and the plaintiff did not qualify as a recognized agent. The court observed that any token of appreciation would be a voluntary matter for the parties to agree. Finding no cause of action and failure to prove the case to the required standard, the court dismissed the suit with no orders as to costs.

Key legal issues

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Whether the plaintiff, holding a power of attorney to represent the defendants in pending litigation, was entitled to payment of costs, remuneration or occupation rights

Holding

The court held the plaintiff was not entitled to fees or any interest in the defendants' properties, as he appeared merely as a witness/representative and was not an advocate or recognized agent; his suit was dismissed.

Reasoning

The court examined the power of attorney and found it was donated for the purpose of appearing in court as a witness and representative in several suits, not as an advocate. The lower court proceedings showed the defendants were represented by an advocate, S. O. Oguk, while the plaintiff merely appeared as a witness. Under Order 9 rule 2(a) of the Civil Procedure Rules, recognized agents holding powers of attorney act only subject to court approval, which did not make them entitled to fees. Any payment could only be a voluntary token of appreciation.

p. 2

Legal principles established

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  • A person holding a power of attorney to represent a party in litigation as a witness or representative is not an advocate and is not entitled to legal fees or remuneration for such representation.
  • Under Order 9 rule 2(a) of the Civil Procedure Rules, persons holding powers of attorney may act as recognized agents of parties only subject to approval by the court in any particular suit.
  • A plaintiff who fails to prove his case to the required standard bears the consequences of dismissal.

Court orders

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  1. 1.Dismissal of the plaintiff's suit with no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 2(a)
Jurisdiction invoked
Environment and Land Court jurisdiction (Environment and Land Court Act); suit filed as ELC Civil Suit No. 145 of 2017

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, "Andrew Wasswa Atetwe v Registered Trustee the General of the Salvation Army & 2 others [2018] KEELC 1278 (KLR)", Case Analysis (2018). ELC Civil Suit No. 145 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1278/eng@2018-10-05

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