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ELCAllowedEnvironment & Land Case 81 of 2016· [2023] KEELC 20996 (KLR)
Wakufwa & 40 others (Suing on their own behalf and on behalf of 37 others) v Maru
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This interlocutory ruling by the Environment and Land Court at Mombasa (Mathéka, J) determined a notice of motion dated 9th June 2023 brought by the Defendant, Bharrabala Rajendra Kumar Maru, under Order 18 rules 2 and 3 and Order 51 rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The Defendant, an 85-year-old woman sued in a long-running land dispute over Title No CR 7187 (Parcel No 413 of Section 1 Mainland North), sought leave for her son, Paresh Jayantilal Maru, to testify on her behalf under a general power of attorney dated 13th July 2022 and registered on 18th May 2023. She argued that age and infirmity made her availability to testify a challenge, that her son was well versed with the facts, and that the plaintiffs would suffer no prejudice, whereas refusal would close her case without evidence. The court adopted Black's Law Dictionary's definition of a power of attorney, distinguished specific from general powers, and applied Mayfair Holdings Ltd v Ahmed, which discusses section 10 of the UK Powers of Attorney Act. Finding the application merited and no prejudice to the plaintiffs, the court granted leave for the attorney to testify and ordered costs to be in the cause.
Key legal issues
#01
Whether a donee of a general power of attorney may testify on behalf of the donor in civil proceedings
Holding
Leave granted; the attorney may testify for the 85-year-old donor who cannot attend court
Reasoning
The court applied the definition of a power of attorney and noted the general nature of the instrument, relying on Mayfair Holdings Ltd v Ahmed and the UK Powers of Attorney Act framework. It found the donor's advanced age and infirmity made her availability to testify a challenge, that the attorney was versed with the facts, and that no prejudice would befall the plaintiffs.
p. 3
Legal principles established
#- A general power of attorney authorizes the donee to act on behalf of the donor as the donor could act, including testifying where the donor is unable to do so
Court orders
#- 1.Leave granted to Paresh Jayantilal Maru to orally and/or in writing testify in respect of the Defendant's case pursuant to the General Power of Attorney dated 13th July 2022 and registered on 18th May 2023
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Order 18 rules 2 and 3 and Order 51 rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakufwa & 40 others (Suing on their own behalf and on behalf of 37 others) v Maru", Case Analysis (2023). Environment & Land Case 81 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20996/eng@2023-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.