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ELCDismissed· [2021] KEELC 1959 (KLR)

Brigitie Korn v Kahindi Msanzu Ndurya [2021] KEELC 1959 (KLR)

Environment and Land Court of Kenya
22 September 2021
MSMunyao Sila
4,748 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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A power of attorney cannot testify for you in a Kenyan land dispute — if you don't show up and testify, your case may fail.

What this practically means

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Executive summary

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The plaintiff, an Austrian national, sued claiming that between 2003 and 2008 she was in a relationship with the defendant and financed the purchase of plot No. 3847/III/MN and construction of houses thereon for about Kshs. 4,000,000/=. She alleged the defendant procured registration in his name by deceiving her that, as a foreigner, she could not own land in Kenya, and sought a declaration that the defendant holds the property in trust, an order for transfer, and accounts of rentals from October 2008. The defendant denied the claims, asserting any money given was a gift out of love and affection, and filed a counterclaim for special damages of Kshs. 50,000/= for maliciously damaged fence, gate and flower garden. The matter, originally filed in the High Court in 2009, was transferred to the Environment and Land Court and commenced de novo. The plaintiff did not testify; her case was presented through a donee of a power of attorney, Patrick Kea Birya. The court held that a power of attorney does not transfer knowledge, feelings or conclusions, and that the donee was incompetent to testify on facts peculiarly within the plaintiff's knowledge under section 63 of the Evidence Act, which requires oral evidence to be direct. His evidence was therefore hearsay. The plaintiff's case was not proved to the required standard, and the court found it unnecessary to determine the allegations of deceit or the existence of a resulting or constructive trust. The suit was dismissed with costs. On the counterclaim, no proof of the pleaded special damages was tendered; it was likewise dismissed with costs.

Key legal issues

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01

Competency of a donee of a power of attorney to testify for the donor

Holding

The donee was incompetent to testify on matters of fact and matters peculiarly within the donor's knowledge; his evidence was hearsay

Reasoning

The court held that a power of attorney transfers authority to act, not knowledge, feelings or conclusions. Facts within the exclusive knowledge of the plaintiff could only be proved by her own direct oral testimony under section 63 of the Evidence Act. The donee neither saw, heard nor perceived the events in issue, so his evidence was hearsay of little or no evidential value. No reason was given for the plaintiff's failure to testify.

p. 4
02

Whether the plaintiff proved financing and a resulting/constructive trust

Holding

Not proved; the suit was dismissed without reaching the trust question

Reasoning

The court found the plaintiff never testified after the trial began de novo, and the only evidence came from an incompetent witness. The allegations of deceit and trust required evidence from the plaintiff which was not presented, so the court found it unnecessary to determine whether a trust arose.

p. 4
03

Whether the defendant proved his counterclaim for special damages

Holding

Counterclaim dismissed for want of proof

Reasoning

Although special damages were pleaded at Kshs. 50,000/= for repairs to a fence, gate and flower garden, the defendant tendered no receipts or other proof of the loss. The court applied the rule that special damages must be both pleaded and strictly proved.

p. 4

Legal principles established

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  • A donee of a power of attorney is not a competent witness on facts, feelings or conclusions peculiarly within the exclusive knowledge of the donor; such evidence is hearsay
  • Oral evidence must be direct evidence as provided in section 63 of the Evidence Act, Cap 80
  • Once a matter commences de novo, evidence tendered before the earlier trial cannot be considered unless the court allows adoption
  • Special damages must not only be pleaded but must also be strictly proved

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs
  2. 2.The defendant's counterclaim is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Not specified
  • Evidence Act, Cap 80, Laws of KenyaSection 63

Cases cited (3)

  • Juletabi African Adventure Limited & Another vs. Christopher Michael Lockley
    (2017) eKLR
  • Heartbeat Limited vs Ng'ambwa Heartbeat Community & Another
    (2018) eKLR
  • Twalib Hatayan Twalib Hatayan & Another vs Said Saggar Ahmed Al-Heidy & Others
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court, to which the suit was transferred from the High Court upon creation of the court following the Constitution of Kenya, 2010

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, "Brigitie Korn v Kahindi Msanzu Ndurya [2021] KEELC 1959 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1959/eng@2021-09-22

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