Jeremiah Arnold Opande Arodi & Ida Nereah Adhiambo Arodi (Suing through their attorney Nicodemus Atito Arodi) v Washington Jakoyo Midiwo; Housing Finance Limited & another (Third Parties) [2019] KEELC 996 (KLR)

The power of attorney over Kisumu/Manyatta 'A'/3304 was donated jointly by the two registered proprietors, Jeremiah Arnold Opande Arodi and Ida Nereah Adhiambo Arodi. The notice of revocation was signed by only one proprietor. The court held that a proper and full revocation required notice from both proprietors, so the power remained subsisting and the donee had capacity to verify the plaint and prosecute the suit.

Counsel for the plaintiff relied on Sections 24 and 61 of the Evidence Act, arguing that capacity was admitted and not traversed. The court agreed that the defendant admitted capacity in the defence and that the defence had not been amended to deny capacity, so the defendant was bound by his pleadings and could not challenge the attorney's locus.

The court found the plaintiff's sworn statement that he was unaware of any revocation and that his principals denied revoking the power. It held the issue of capacity could not be determined on the available evidence and the evidence was insufficient to commit the plaintiff for perjury, noting the need to call the donor to testify under oath on the alleged notice of revocation.

The defendant invoked rule 6 of the LSK Code of Ethics and Conduct arguing conflict of interest. The court referred to Clause 96 of the LSK Code of Standards 2016 defining conflict of interest, noted that although dual representation of plaintiff and third party may appear improper, there is no legal prohibition, and that the defendant had not proved the alleged conflict by affidavit.