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ELCStruck OutNotice of Motion dated 29th August 2019 (suit number not stated in the judgment)· [2020] KEELC 706 (KLR)

Guyo Bashora Dala & 75 others v Riverside Farm Malindi Limited [2020] KEELC 706 (KLR)

Environment and Land Court
13 November 2020
JOJ.O. Olola
1,329 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's injunction failed because the agent who filed it had a power of attorney that didn't cover going to court.

What this practically means

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Executive summary

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Riverside Farm Malindi Ltd, the registered proprietor of Plot No. M28 Malindi, moved the court by Notice of Motion dated 29th August 2019 seeking an injunction to restrain 76 Applicants from tilling, planting crops, developing or remaining on the remaining portion of the plot. The application was supported by an affidavit sworn by David Pola Mramba as attorney of one of the company's directors, on the basis that the Applicants were former squatters who had been compensated and settled elsewhere and were now trespassing. The Applicants opposed through a Notice of Preliminary Objection filed on 12th September 2019, contending that the Respondent's pleadings violated Order 9 Rule 2(a) of the Civil Procedure Rules. They also swore a replying affidavit asserting that the Special Power of Attorney annexed to the application, donated by director Francesco Zinoni, was limited to signing and filing the companies' annual returns at the companies registry and conferred no litigation powers, and that the Applicants had lived on the land since time immemorial. Relying on Order 9 Rules 1 and 2 and Mwongo J's decision in Jack J Khangira & Another v Safaricom Ltd, the court held that a recognized agent acts subject to the Court's approval and only within the scope of his authorization. Since the power of attorney neither referenced the suit property nor authorized litigation, and no court approval had been sought, the donee lacked capacity to act for the Respondent. The court found merit in the preliminary objection, struck out the Notice of Motion dated 29th August 2019, and awarded costs to the Applicants. No injunction issued.

Key legal issues

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01

Capacity of a recognized agent to act without court approval

Holding

The preliminary objection succeeds; the donee of a power of attorney restricted to filing annual returns has no capacity to prosecute the suit without court approval

Reasoning

Order 9 Rule 2(a) requires that persons holding powers of attorney act subject to approval by the Court. The impugned power of attorney dated 21st April 2004 appointed the donee only for signing companies' annual returns at the companies registry; it made no reference to the suit property and conferred no power to prosecute or defend suits. Since no approval was sought from the Court before its use for litigation purposes, the donee lacked capacity to bring the application on behalf of the Respondent Company.

p. 2
02

Scope of a power of attorney

Holding

The extent or scope of the agency, not the mere fact of being an agent, determines recognition

Reasoning

Adopting Mwongo J's reasoning in Jack J Khangira & Another v Safaricom Ltd, the court held that a recognized agent can perform only what he is recognized or authorized to do in law. Because the instrument here donated powers limited to filing annual returns, the donee could not overstep into litigation on behalf of the company.

p. 2

Legal principles established

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  • A recognized agent under Order 9 Rule 2(a) of the Civil Procedure Rules may only act in proceedings subject to the approval of the Court
  • A power of attorney limited to administrative acts (such as filing annual returns) does not confer power to litigate on the donee

Court orders

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  1. 1.The Notice of Motion dated 29th August 2019 is struck out
  2. 2.Costs of the application are awarded to the Applicants

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 1
  • Civil Procedure RulesOrder 9 Rule 2(a)

Cases cited (1)

  • Jack J Khangira & Another –vs- Safaricom Ltd
    (2012) eKLR
Jurisdiction invoked
Not stated in the judgment; the court exercised its inherent supervisory power over representation under Order 9 Rule 2(a) of the Civil Procedure Rules

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, "Guyo Bashora Dala & 75 others v Riverside Farm Malindi Limited [2020] KEELC 706 (KLR)", Case Analysis (2020). Notice of Motion dated 29th August 2019 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/706/eng@2020-11-13

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