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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a donee of a general power of attorney can be admitted as a party in place of the donor
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.
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.
Whether a preliminary objection against the uncertified power of attorney and the applicant's locus standi succeeds
Yes, in effect: the application was dismissed, meaning the Plaintiff's objection to the applicant being admitted as a substantive party prevailed.
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.
Whether powers of attorney may be used by unqualified persons to conduct litigation
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.
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.
Legal principles established
#- 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
#- 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.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Civil procedure rules governing recognition of agents acting under powers of attorney (Order 9 Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.