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ELCStruck OutELC No. 206 of 2017 (Consolidated with ELC No. 211 of 2017)· [2021] KEELC 4605 (KLR)

Abdulrahman Said Bakar Suing on behalf of Brek Bin Awadh Abdulla Attimimi as his Attorney v Aisha Khamis Awadh & another [2021] KEELC 4605 (KLR)

Environment and Land Court
21 January 2021
CYC.K. Yano
2,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit filed using a power of attorney from someone the court found was already dead.

What this practically means

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Executive summary

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The defendants brought a notice of motion dated 28th August 2020 seeking to strike out the plaint dated 14th June 2017 in a consolidated land suit (ELC No. 206 of 2017 with ELC No. 211 of 2017), on the ground that the person on whose behalf the plaintiff sued, Brek Bin Awadh Abdulla Attimimi, died in 1999 and therefore could not have donated a power of attorney. They relied on a letter from the consulate of the Republic of Yemen confirming the death. The plaintiff opposed, arguing the consulate letter named a different person, that no death certificate or burial permit was produced, and that the 2nd defendant had been convicted of forging a death certificate of the same man; he asserted the donor was old and alive in South Yemen. The court framed three issues: whether the donor was dead or alive; whether there was a valid power of attorney; and whether the suit should be struck out. Applying Order 2 Rules 11 and 12, the court held the death allegation raised in the defence was deemed admitted for want of a reply, and the burden shifted to the plaintiff, who led no evidence. Relying on Otieno v Ongo, Geeta Bharat Shah and McFoy v United Africa Company, the court found the suit was a nullity from inception, filed on behalf of a dead person without authority. The application was allowed, the plaint struck out with costs to the defendants.

Key legal issues

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01

Whether the donor of the power of attorney was dead at the time of its donation and the filing of suit

Holding

The court presumed the donor dead on the uncontroverted consulate letter and the plaintiff's failure to reply to the defence

Reasoning

The defendants produced a letter from the Yemen consulate confirming the death in 1999. The allegation was raised in the defence filed 12th July 2017 but the plaintiff filed no reply to defence, so it was deemed admitted under Order 2 Rule 11. The plaintiff gave no evidence that the donor was alive. The burden, having shifted, was not discharged and the death was presumed.

p. 2
02

Whether a suit filed on behalf of a dead person through a posthumous power of attorney is a nullity

Holding

Yes; such a suit is incompetent, bad in law and a nullity from inception and no order is needed to set it aside

Reasoning

Relying on McFoy v United Africa Co Ltd, the court held that a void act is a nullity, incurably bad, and every proceeding founded on it collapses. The plaintiff lacked locus standi to sue as attorney of a deceased person without letters of administration.

p. 2

Legal principles established

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  • A suit filed on behalf of a deceased person by virtue of a power of attorney given after his demise is incompetent, bad in law and a nullity from inception
  • An allegation of fact in a pleading not traversed is deemed admitted under Order 2 Rules 11 and 12 of the Civil Procedure Rules

Court orders

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  1. 1.The Notice of Motion dated 28th August 2020 is allowed
  2. 2.The plaint dated 14th June 2017 is struck out
  3. 3.Costs of the application to the defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of KenyaArticles 25(c), 35(2), 50(1)
  • Civil Procedure RulesOrder 2 Rules 11, 12

Cases cited (3)

  • Otieno –v- Ongo & Another
    (1989-1989) EALR 468
  • Geeta Bharat Shah & Others –v- Jomar Said Mwatayari & Another
    (2009)
  • Benjamin Leonard McFoy –v- United Africa Company Limited
    (1961) 3 ALL ER 1169
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 25(c), 35(2) and 50(1) of the Constitution of Kenya

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, "Abdulrahman Said Bakar Suing on behalf of Brek Bin Awadh Abdulla Attimimi as his Attorney v Aisha Khamis Awadh & another [2021] KEELC 4605 (KLR)", Case Analysis (2021). ELC No. 206 of 2017 (Consolidated with ELC No. 211 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4605/eng@2021-01-21

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