Patrick Mapango Wafula (Suing thro’ Dinah Nakhumicha Wafula) v Simiyu Webule & Frank Andiva Butichi [2021] KEELC 2210 (KLR)
The bottom line
#A power of attorney dies with its donor, so the court struck out her late-appeal application and ordered a grant of letters of administration first.
What this practically means
#Executive summary
#Key legal issues
#Good and sufficient cause for delay under Section 79G
The applicant satisfied the court that neither she nor her counsel were present at delivery of judgment and that she learnt of it only in October 2020; her advanced age and failing health also excused the delay
The respondents contradicted the applicant's account of absence at judgment delivery but gave no evidence of presence or of notice of the second judgment date. The court therefore believed the applicant's account of learning of the judgment in October 2020, and was persuaded that failing health and advanced age constituted good ground for the delay.
Locus standi of a holder of a power of attorney from a deceased donor
The power of attorney died with the donor; without letters of administration the application was incompetent and was struck out
The applicant pursued the suit only as holder of a power of attorney donated by the substantive defendant, whom she admitted was deceased. Relying on Section 45 of the Law of Succession Act and Alfred Ngutuk Wamalwa, the court held a grant must first be obtained before lodging such an application, rendering the application fatally defective.
Legal principles established
#- An appeal or application founded solely on a power of attorney is incompetent where the donor has died; a grant of letters of administration must first be obtained as no person may intermeddle with a deceased's property
- Section 79G of the Civil Procedure Act confers a wide discretion to permit filing an appeal out of time where good and sufficient cause is demonstrated
Court orders
#- 1.Application dated 6/7/2021 struck out
- 2.Each party to bear its own costs of the application
- 3.Temporary stay of execution for 30 days from the date of the order, issued suo motu in the interests of justice
- On appeal from
- Senior Resident Magistrate's Court, Kitale
- Kitale CMC Suit No. 158 of 1993
- Jurisdiction invoked
- Sections 3, 3A, 3B, 63(e), 79G and 95 of the Civil Procedure Act and Order 50 Rule 5 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Mapango Wafula (Suing thro’ Dinah Nakhumicha Wafula) v Simiyu Webule & Frank Andiva Butichi [2021] KEELC 2210 (KLR)", Case Analysis (2021). Kitale CMC Suit No. 158 of 1993 (application dated 6/7/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2210/eng@2021-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.