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ELCPartially AllowedNot stated in judgment· [2021] KEELC 23 (KLR)

Marc Marcel Vareecke v Maria Mnyazi Mwangombe & another [2021] KEELC 23 (KLR)

Environment and Land Court of Kenya
19 October 2021
ADA.E Dena
2,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court let a power-of-attorney agent represent an absentee plaintiff but refused to force discovery of DCI documents held by a third party, ordering summons instead.

What this practically means

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Executive summary

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The Plaintiff, based abroad and acting through her donee under a power of attorney, Victor Mugenya, moved the court by Notice of Motion dated 18th May 2021 seeking: (i) that Mugenya be allowed to participate in the suit as her duly appointed donee; (ii) that the Directorate of Criminal Investigations be compelled to produce a full investigation report touching on motor vehicle KCK 841, a NEMA construction approval, the respondents' KRA PIN details, a confirmation letter from the area chief, and a DTB bank account; (iii) summons to the SCCIO Msambweni to attend and produce documents; and (iv) costs. The Defendants opposed, arguing that the DCI is not a party to the suit, that the documents were not disclosed at pre-trial, and that they had no custody of the documents sought. The court adopted the issues framed by the Plaintiff. It found the power of attorney regular and unopposed and allowed the donee to participate. On discovery, the court accepted the rationale of the authorities cited by the Plaintiff but distinguished them because the documents sought were in the custody of a third party, not a party to the suit, and therefore could not be obtained through discovery at that stage. However, invoking Article 159 of the Constitution and its inherent powers, the court directed that summons issue to the SCCIO Msambweni to produce the documents at the hearing, finding them relevant while cautioning against pre-judging substantive issues. Costs were awarded to the Defendants. The application was therefore partially allowed.

Key legal issues

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01

Whether the donee of a power of attorney may participate in the suit for the plaintiff

Holding

Allowed; the power of attorney met the legal requirements and was unopposed

Reasoning

The court examined the power of attorney and found it met the required thresholds for execution and registration. The defendants' submissions showed they did not oppose the prayer. Logistical challenges arising from the plaintiff being abroad also supported the application.

p. 3
02

Whether the DCI/SCCIO can be compelled to produce an investigation report and documents by way of discovery

Holding

Not by discovery, since the documents are held by a non-party; but the court invoked Article 159 and inherent powers to issue summons for their production at the hearing

Reasoning

The authorities on discovery cited by the plaintiff concerned documents in the possession of parties to the suit. Here the documents are in the custody of a third party. However, the court retains discretion to summon any witness who knows something about the case, and the documents were found relevant to the suit.

p. 3
03

Whether costs should follow the applicant

Holding

Costs were awarded to the Defendants, as the application was directed at them though they held no relevant documents

Reasoning

Although the court granted the substantive relief through summons, it noted the defendants had no custody of the documents and correctly distinguished the authorities cited. The court therefore exercised its discretion on costs in the defendants' favour despite granting the operative prayers.

p. 4

Legal principles established

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  • A court may, by virtue of Article 159 and its inherent powers, summon any person, including a non-party in custody of documents, to give evidence or produce documents at the hearing of a suit
  • Discovery under Section 22 of the Civil Procedure Act applies to documents in the possession of parties to the suit, not documents held by third parties

Court orders

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  1. 1.Victor Mugenya be allowed to participate in this suit henceforth as the duly appointed donee of the Plaintiff
  2. 2.Summons shall issue to the Director of Criminal Investigations (SCCIO Msambweni) to produce the documents at the hearing of this suit
  3. 3.Costs to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSection 22
  • Civil Procedure ActSections 1A and 1B
  • Constitution of Kenya, 2010Article 159
  • Civil Procedure RulesOrder 1 Rule 3

Cases cited (2)

  • Oracle Productions Ltd Vs Decapture Ltd & 3 Others
    (2014) eKLR
  • Cooperative Bank of Kenya Limited Vs Smuel Musau Ndunda
    (2021) eKLR
Jurisdiction invoked
Article 159 of the Constitution and inherent powers of the Court, with Section 22 of the Civil Procedure Act

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, "Marc Marcel Vareecke v Maria Mnyazi Mwangombe & another [2021] KEELC 23 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/23/eng@2021-10-19

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