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ELCDismissedELC No. (Malindi) – ruling on Notice of Motion dated 15th October 2021 (case number not stated in the extract)· [2022] KEELC 2640 (KLR)

Hefti & another (Suing as administrators of the Estate of the late Daniel Bernhard Hefti) v Reinhard & 2 others (Land Case 75 of 2019) [2022] KEELC 2640 (KLR)

Environment and Land Court
14 July 2022
1,463 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a power of attorney lets you act for someone in court, but never to replace them as a party.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (M.A. Odeny, J.) dated 14th July 2022 on a Notice of Motion dated 15th October 2021 by the 1st Defendant/Applicant seeking to admit Moses Kiprugut Rop as the 1st Defendant suing/sued through a power of attorney donated by Joyce Jepleting Reinhard, with costs in the cause. The 1st Defendant was said to be in Switzerland and unable to return for the hearing, and had donated a general power of attorney to Mr. Rop, who sought to be validated in court and to replace her as her attorney. The Plaintiff filed grounds of opposition and a preliminary objection contending that the power of attorney was uncertified, that an agent cannot replace the donor as a party, and that Mr. Rop lacked locus standi to be added as a substantive party absent a claim against him. The court framed two issues: the merit of the preliminary objection and whether the applicant should be admitted. Relying on Order 9 Rules 1, 2 and 7 of the Civil Procedure Rules and Sections 31, 34 and 83 of the Advocates Act, and applying Jack J. Khanjira v Safaricom and Carolyne Mpenzwe Chipande v Wanje Kazungu Baya, the court held that a recognized agent holding a power of attorney may act for a party only subject to court approval, and that a power of attorney does not entitle the donee to substitute the donor as a party unless specifically mandated. The application was dismissed with costs.

Key legal issues

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01

Whether a donee of a general power of attorney can be admitted as a party in place of the donor

Holding

No. The power of attorney permits the donee to act for the donor, not to replace or substitute her in the proceedings, unless the instrument specifically mandates substitution.

Reasoning

The court examined Order 9 Rules 1 and 2 of the Civil Procedure Rules, which allow appearance by a recognized agent holding a power of attorney subject to court approval. It distinguished between acting on behalf of a party and replacing that party, noting the application sought substitution of the 1st Defendant rather than approval to defend or give evidence as her attorney, and that the donor was simply abroad with no date for return given.

p. 3
02

Whether a preliminary objection against the uncertified power of attorney and the applicant's locus standi succeeds

Holding

Yes, in effect: the application was dismissed, meaning the Plaintiff's objection to the applicant being admitted as a substantive party prevailed.

Reasoning

The court found that for Moses Kiprugut Rop to be added as a defendant there would need to be a specific claim or cause of action against him, which the pleadings did not disclose. The power of attorney gave him the right to act in the name of the donor without being added as a party, and his application to be admitted as 1st Defendant lacked merit.

p. 4
03

Whether powers of attorney may be used by unqualified persons to conduct litigation

Holding

No. The Advocates Act (Sections 31, 34 and 83) restricts unqualified persons; Section 83 preserves only what the instrument empowers the donee to do, and courts must stem the misuse of powers of attorney by persons masquerading as advocates.

Reasoning

The court cited Sections 31 and 34 of the Advocates Act prohibiting unqualified persons from acting as advocates or drawing documents relating to legal proceedings, and Section 83 which preserves written laws empowering unqualified persons to act. It read Order 9 Rule 7 as barring appointment of unqualified persons as legal representatives, warning against circumventing rules of procedure.

p. 3

Legal principles established

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  • A person holding a power of attorney may act for a party under Order 9 Rules 1 and 2 of the Civil Procedure Rules only subject to the approval of the court, and only to do what the instrument specifically mandates
  • A power of attorney does not entitle the donee to be substituted for the donor as a party to proceedings unless the instrument specifically mandates it
  • Order 9 Rule 7 does not permit a party to appoint an unqualified person to act as an advocate or legal representative, which would be an abuse of court process

Court orders

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  1. 1.The Notice of Motion dated 15th October 2021 seeking to admit Moses Kiprugut Rop as 1st Defendant through the Power of Attorney for Joyce Jepleting Reinhard is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure RulesOrder 9 Rule 1
  • Civil Procedure RulesOrder 9 Rule 2
  • Civil Procedure RulesOrder 9 Rule 7
  • Civil Procedure RulesOrder 21 [1]
  • Advocates ActSection 31
  • Advocates ActSection 34
  • Advocates ActSection 83

Cases cited (2)

  • Jack J. Khanjira & Another v Safaricom Limited
    [2012] eKLR
  • Carolyne Mpenzwe Chipande v Wanje Kazungu Baya
    [2014] eKLR
Jurisdiction invoked
Civil procedure rules governing recognition of agents acting under powers of attorney (Order 9 Civil Procedure Rules)

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, "Hefti & another (Suing as administrators of the Estate of the late Daniel Bernhard Hefti) v Reinhard & 2 others (Land Case 75 of 2019) [2022] KEELC 2640 (KLR)", Case Analysis (2022). ELC No. (Malindi) – ruling on Notice of Motion dated 15th October 2021 (case number not stated in the extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2640/eng@2022-07-14

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