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ELCStruck OutELC Suit (Eldoret) – Plaint dated 23rd November, 2017· [2021] KEELC 3470 (KLR)

Daniel Kipketer Rugut v Ernest Kavayi & 5 others [2021] KEELC 3470 (KLR)

Environment and Land Court
5 May 2021
SKS. M. Kibunja
3,894 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a landowner's eviction suit because his power of attorney was never registered, proving capacity to sue cannot be fixed later.

What this practically means

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Executive summary

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The Plaintiff sued the six Defendants seeking their eviction from land parcel Kemeloi/Koibarak “A”/175, registered in the name of his father, Elias Kiprugut Songok, alleging they were illegal encroachers. The 1st to 3rd Defendants filed a defence and counterclaim asserting that their late father/husband bought 12 acres of the land in 1964 during adjudication, occupied it since, and that the Plaintiff's title over that portion was extinguished by adverse possession; they sought registration of the portion, rectification of the register and a permanent injunction. The 4th to 6th Defendants pleaded over 20 years' occupation, challenged the Plaintiff's locus standi, and alleged fraud in the acquisition of the title. The court framed five issues but found it necessary to determine capacity first. It held that the power of attorney dated 24th October 2017, executed in the United States, was not registered, not stamped, did not bear the donee's acceptance signature, and lacked the required notarial authentication; consequently the donee acquired no capacity to sue over immovable property. Capacity, the court held, is not a technicality curable under Article 159(2)(d). The Plaintiff's suit was therefore struck out with costs without considering trespass, adverse possession or the other issues. The 1st to 3rd Defendants' counterclaim, being against a party without capacity to be sued over the land's ownership, was also struck out, with each party bearing their own costs on the counterclaim. Judgment was delivered virtually at Eldoret on 5th May 2021 by S. M. Kibunja J.

Key legal issues

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01

Whether the Plaintiff had locus standi to prosecute the suit through the power of attorney

Holding

The Plaintiff lacked capacity because the power of attorney executed in the USA was not registered, not stamped, lacked the donee's signature of acceptance, and lacked the required notarial certificate; the suit was struck out.

Reasoning

The court held that a power of attorney over immovable property must be registered under Section 4 of the Registration of Documents Act after payment of stamp duty under Section 19 of the Stamp Duty Act, and must comply with Sections 44(1), (2), (4), (5)(b) of the Land Registration Act. The copy in court bore no signature or evidence of registration, and its foreign execution required notarial authentication under Section 88 of the Evidence Act. Capacity cannot be cured by Article 159(2)(d).

p. 3
02

Effect of the finding on the 1st to 3rd Defendants' counterclaim

Holding

The counterclaim was struck out because it was directed against a party without capacity to be sued in respect of title or ownership of the suit land; each party to bear own costs.

Reasoning

The court found the counterclaim, seeking adverse possession, rectification of the register and a permanent injunction, was against a Plaintiff lacking locus standi, and that this finding alone was sufficient to dispose of it in finality without addressing the other issues such as adverse possession.

p. 4

Legal principles established

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  • A power of attorney conferring a right to deal with immovable property must be registered, after payment of stamp duty, before the donee can claim capacity under it.
  • Locus standi or capacity to sue is not a technicality curable under Article 159(2)(d) of the Constitution.

Court orders

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  1. 1.The Plaintiff’s claim against all the Defendants is hereby struck out with costs for lack of capacity.
  2. 2.The 1st to 3rd Defendants’ counterclaim against the Plaintiff is also struck out with each party being their own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d); Article 159(2)(b)
  • Registration of Documents ActSection 4
  • Stamp Duty ActSection 19(1)
  • Land Registration Act, Act No. 2 of 2012Sections 44(1), (2), (4), (5)(b), 46, 109
  • Evidence ActSections 88, 107
  • Civil Procedure RulesOrder 9 Rule 2 / Section 9 Rule 2
  • Registered Land Act (repealed)Chapter 300 of Laws of Kenya (repealed by Land Registration Act)

Cases cited (5)

  • Kirugi & Another Vs Kibiya & 3 Others (1987)
    (1987)
  • Macharia Mwangi Maina & 87 Others Vs Davidson Mwangi Kagir
    [2014] eKLR
  • Francis Mwangi Mugo Vs David Kamau Gachago
    [2017] eKLR
  • Law Society of Kenya vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • Alfred Njau & Others vs City Council of Nairobi
    (1982) KAR 229
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land parcel Kemeloi/Koibarak “A”/175

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Daniel Kipketer Rugut v Ernest Kavayi & 5 others [2021] KEELC 3470 (KLR)", Case Analysis (2021). ELC Suit (Eldoret) – Plaint dated 23rd November, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3470/eng@2021-05-05

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