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ELCDismissedEnvironment & Land Case 23 of 2019· [2022] KEELC 15075 (KLR)

Masinde v Jivraj & 4 others

Environment and Land Court
24 November 2022
ECE.C. CHERONO
983 words in judgment
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The bottom line

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A Kenyan court allowed a power of attorney to be used in a land case because the objecting party failed to prove it was unregistered.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (E.C. Cherono, J) determines an interlocutory objection raised by Mr. Masinde, counsel for the 1st and 2nd defendants, against the production of a power of attorney contained in the plaintiff's further list of documents dated 14/11/2022. The objectors contended that the document, being foreign, required attestation by an authorized person rather than a Notary Public, registration in the Register of Powers of Attorney with a special number, and signatures of both donor and donee; they also argued there was no evidence the plaintiff, said to live in Switzerland, was in Kenya when the document was signed. Mr. Kituyi for the 3rd defendant associated himself with the objection. Mr. Sichangi for the plaintiff opposed it, submitting the power of attorney was executed by the plaintiff in Bungoma County and duly registered at the lands office in compliance with the law. The court framed the issue as whether the power of attorney was legitimate and whether the plaintiff's witness was properly appointed under it. It set out sections 4, 9 and 18 of the Registration of Documents Act (Cap 285) governing compulsory registration of documents conferring interests in immovable property and vakallas, and the evidentiary consequence of non-registration. Noting the document was executed at Bungoma before advocate Benjamin Otsiula, and that although no official registration receipts were produced, the defendants ought to have conducted a search to confirm non-registration, the court held the objection unmerited and dismissed it, with no costs order recorded.

Key legal issues

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01

Validity and admissibility of the power of attorney executed by the plaintiff

Holding

The objection failed; the power of attorney executed at Bungoma before an advocate was not shown to be unregistered, and the burden lay on the objecting defendants to verify registration by search

Reasoning

The court applied sections 4, 9 and 18 of the Registration of Documents Act (Cap 285), which require registration of documents conferring interests in immovable property and vakallas, and render unregistered documents inadmissible except with leave. The power of attorney was executed at Bungoma before Benjamin Otsiula advocate. Although no official receipts of registration were produced, the burden was on the defendants to conduct a search to confirm non-registration. He who alleges must prove.

Legal principles established

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  • A party alleging that a document was not registered bears the burden of proving it, including by conducting a search

Court orders

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  1. 1.The objection to the production of the power of attorney is dismissed

Authorities

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Legislation

  • Registration of Documents ActSection 4
  • Registration of Documents ActSection 9
  • Registration of Documents ActSection 18
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Masinde v Jivraj & 4 others", Case Analysis (2022). Environment & Land Case 23 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15075/eng@2022-11-24

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