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ELCDismissedKisumu CMC ELC Case No. 14 of 2017 (appeal thereof)· [2020] KEELC 839 (KLR)

Kenneth Omollo Simbiri & another v Daniel Ongor [2020] KEELC 839 (KLR)

Environment and Land Court (first appellate jurisdiction)
6 October 2020
MOM. A. Odeny
4,855 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that an unregistered power of attorney over land leaves its holder with no legal capacity to sue.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Chief Magistrate Hon. Julius Ng'arng'ar of 17 July 2019 in Kisumu CMC ELC Case No. 14 of 2017, which had struck out the Plaintiffs' suit for trespass over Plot No. 14 Migosi Site - Kisumu because the power of attorney under which their attorney, Duncan Omondi Wadenya, sued had not been registered. Odeny J, sitting at Eldoret, dismissed the appeal with costs to the Respondent. The court held that a power of attorney dealing with immovable property falls under Section 4 of the Registration of Documents Act and had to be registered within two months of arrival in Kenya under Section 9; non-registration left the donee without capacity or locus standi to sue. The court agreed with Munyao J in Francis Mwangi Mugo v David Kamau Gachago that want of capacity is not a technicality curable under Article 159 of the Constitution or the overriding objective. On the objection that the point was raised for the first time in submissions, the court held, applying Kinyanjui Kamau v George Kamau Njoroge and Odd Jobs v Mubia, that a point of law going to the root of the case may be raised at any stage and that a court cannot sanitize a mandatory illegality even if unpleaded. Relying on Kenneth Nyaga Mwige v Austin Kiguta, it held that mere admission of the document as an exhibit did not amount to proof. The court further held that, in any event, the Appellants failed to prove on a balance of probabilities that Plot 14 was the same as, or was trespassed upon by, the Respondent's Plot 69, having adduced no surveyor's evidence, so the suit would have been dismissed on the merits in any event. No damages assessment was required since the suit failed for want of capacity.

Key legal issues

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01

Validity and registrability of a foreign power of attorney over immovable property

Holding

The unregistered power of attorney was invalid for use in the suit; its holder lacked capacity and locus standi to prosecute the claim.

Reasoning

The power of attorney was executed in Pennsylvania, USA on 13 June 2010 and dealt with immovable property. Section 4 of the Registration of Documents Act requires documents conferring rights over immovable property to be registered, and Section 9 requires registration within two months of arrival in Kenya. Section 44(4) of the Land Registration Act was also not complied with. Following Sanjay Varma and Francis Mwangi Mugo, the court held the suit incompetent.

p. 4
02

Raising a point of law at any stage

Holding

A point of law going to capacity may be raised at any time, even for the first time in submissions, and the court may determine an unpleaded issue on its own motion.

Reasoning

Relying on Kinyanjui Kamau v George Kamau Njoroge and Odd Jobs v Mubia, the court held that where an issue emerges and the court evaluates the case in its totality, an anomaly or illegality that is mandatory in nature cannot be sanitized merely because no party pleaded it. Want of capacity goes to jurisdiction/root of the case.

p. 5
03

Admission of a document versus its proof

Holding

Production of the power of attorney as an exhibit without objection did not establish its probative value; the court could still examine it against the law.

Reasoning

Following Kenneth Nyaga Mwige v Austin Kiguta, documents pass through stages of filing, tendering/admission and proof. When forming a judicial opinion on whether a document is proved, the court considers all facts and evidence on record together with the relevant laws. Admission of a document does not stop the court from interrogating its probative value.

p. 5
04

Distinction between registration and stamp duty

Holding

Registration is a mandatory requirement whose non-compliance invalidates the document, whereas late payment of stamp duty attracts only penalties.

Reasoning

Adopting Munyao J in Francis Mwangi Mugo v David Kamau Gachago, the court distinguished stamping (a revenue matter) from registration (formal entry of a document so that rights may pass or the public be notified). Failure to register a power of attorney over land attracts the consequence of invalidity; omission to stamp does not automatically reject the document.

p. 5
05

Proof of the plot claimed and trespass

Holding

The Appellants failed to prove that Plot No. 14 was in existence or was the same as the Respondent's Plot 69; the suit would have failed on the merits anyway.

Reasoning

The parties produced competing deed plans indicating different positions of their plots. The Respondent called a County Surveyor who confirmed the position of his plot, but the Appellant called no surveyor or Lands office witness. Applying the maxim that he who alleges must prove, the Appellants' case remained unproved on a balance of probabilities.

p. 6
06

Failure to assess damages

Holding

The trial Magistrate had no obligation to assess damages where the entire suit was dismissed for want of capacity.

Reasoning

The Appellants relied on Glady Wanjiru Njaramba v Globe Pharmacy contending damages should have been assessed had the suit succeeded. The court held that capacity goes to the root of the case; having found no capacity to sue, the trial Magistrate was not obliged to make a hypothetical assessment of damages.

p. 5

Legal principles established

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  • A power of attorney dealing with immovable property must be registered under Sections 4 and 9 of the Registration of Documents Act before it can be used, and failure renders the holder without capacity/locus standi to sue.
  • Capacity or locus standi goes to the root of the case and is not a technicality curable by Article 159 of the Constitution.
  • A court may raise and determine an unpleaded issue of law, including want of capacity, at any stage.
  • Mere admission of a document in evidence does not amount to proof of it.
  • He who alleges must prove; a claimant who fails to call survey evidence to establish the location of the plot claims fails to discharge the burden of proof.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the Respondents

Authorities

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Legislation

  • Stamp Duty ActSection 19
  • Registration of Documents ActSections 4 and 9
  • Land Registration ActSection 44(4)
  • Civil Procedure ActSections 1A and 1B; Order 2 Rule 11
  • Civil Procedure RulesOrder 11 Rule 3(b)
  • Evidence ActSection 61
  • Constitution of Kenya, 2010Article 159
  • Law of Contract ActSection 3(3)
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (17)

  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR
  • Nairobi City Council v Thabiti Enterprises Ltd
    [1996-98] 2 EA 231
  • Agnes Nduume Kioko v Alexander Njue
    [2019] eKLR
  • Erastus Wade Opande v Kenya Revenue Authority & Another
    Kisumu HCCA No. 46 of 2007
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Robert Ngande Kathathi v Francis Kivuva Kitonde
    (2020) eKLR
  • Stephen Boro Gitiha v Family Finance Building Society & 3 Others
    Civil Application No. Nai. 263 of 2009
  • Hagos Birikti Tewoldebren v Evans Ihura & another
    (2020) eKLR
  • Glady Wanjiru Njaramba v Globe Pharmacy & Another
    (2014) eKLR
  • Mordekai Mwangi Nandwa v Bhogals Garage Ltd
    CA No. 124 of 1993 [1993] KLR 4448
  • Matiya Byabaloma & Others v Uganda Transport Co. Ltd
    Uganda Supreme Court Civil Appeal No. 10 of 1993, IV KALR 138
  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    [2015] eKLR
  • Francis Mwangi Mugo v David Kamau Gachago
    [2017] eKLR
  • Selle and another v Associated Motor Boat Company Ltd and others
    [1968] 1 EA 123
  • Sanjay Varma & 2 others v Jackson Eshiwani Likoye & 7 others
    [2020] eKLR
  • John K. Malembi v Trufosa Cheredi Mudembei & 2 others
    [2019] eKLR
  • Odd Jobs v Mubia
    [1970] EA 476
On appeal from
Chief Magistrate's Court, Kisumu
CMC ELC Case No. 14 of 2017
Jurisdiction invoked
First appellate review of the subordinate court's judgment and decree (ELC appellate jurisdiction over the Chief Magistrate's Court; appeal decided by way of rehearing per Selle v Associated Motor Boat Co Ltd)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Kenneth Omollo Simbiri & another v Daniel Ongor [2020] KEELC 839 (KLR)", Case Analysis (2020). Kisumu CMC ELC Case No. 14 of 2017 (appeal thereof). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/839/eng@2020-10-06

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