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ELCStruck OutEnvironment and Land Miscellaneous Application E004 of 2023· [2023] KEELC 21955 (KLR)

Nchabari v Kiryanyama & 6 others; Republic (Applicant); Cabinet Secretary, Ministry of Land and Physical Planning (Respondent); Mutegi & 2 others (Interested Parties)

Environment and Land Court
28 November 2023
2,480 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 judicial review because the applicant's power of attorney was never registered, confirming capacity cannot be fixed later.

What this practically means

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Executive summary

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The ex parte applicant, Titus Mutegi Makira, sought leave by Amended Chamber Summons dated 7th August 2023 (amended 21st September 2023) to apply for an order of certiorari out of time against the Cabinet Secretary, Ministry of Land and Physical Planning's decision of 28th September 2022 allowing Minister's Appeal No. 390/2022 in favour of the interested party, together with a stay of that decision. He alleged the Minister's decision breached natural justice, was biased, arbitrary and unreasonable, and explained the delay by saying he only learned of the decision in July 2023 when issued with title deeds. State counsel opposed, citing inordinate delay beyond the six-month period under Section 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. The court, however, resolved the matter on a threshold point: the applicant was not a party to the Minister's appeal and sued on behalf of the parties thereto under an undated, unregistered power of attorney limited to the Minister's appeal and not covering this case. Applying Section 4 of the Registration of Documents Act and the decisions in Francis Mwangi Mugo v David Kamau Gachago and Kenneth Omollo Simbiri v Daniel Ongor, the court held that an unregistered power of attorney over immovable property does not vest the donee with capacity, and that capacity is not a technicality curable under Article 159. The application was found incompetent and struck out with costs to the Respondent and the 2nd Interested Party.

Key legal issues

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01

Whether the applicant had capacity to bring the judicial review application on behalf of the parties to the Minister's appeal

Holding

He did not; the Power of Attorney was unregistered and limited to the Minister's appeal, not this case

Reasoning

The court found the applicant was not a party to Minister's Appeal 390/2022 and relied on an unregistered power of attorney limited to that appeal. Citing Francis Mwangi Mugo and Kenneth Omollo Simbiri, it held registration under the Registration of Documents Act is a prerequisite to capacity over immovable property, and such capacity cannot be cured retrospectively under Article 159.

p. 5
02

Whether leave could be granted for certiorari out of the six-month limitation period

Holding

Not determined on the merits; the application was struck out for want of capacity before the delay question was resolved

Reasoning

The court set out the leave framework under Order 53 rule 1 and Section 9 of the Law Reform Act, noting leave is a discretionary filter against frivolous applications, but resolved the matter on capacity rather than reaching the extension-of-time question.

p. 4

Legal principles established

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  • Capacity or locus standi goes to the root of a case and is not a technicality curable under Article 159 of the Constitution
  • A power of attorney conferring authority over immovable property must be registered before the donee can claim capacity to act; failure to register is fatal

Court orders

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  1. 1.The Amended Chamber Summons dated 7th August 2023 and amended on 21st September 2023 is found to be incompetent and is struck out
  2. 2.Costs of the application to the Respondent and the 2nd Interested Party
Jurisdiction invoked
Order 53 Rule 1 of the Civil Procedure Rules, 2010; Section 9 of the Law Reform Act

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, "Nchabari v Kiryanyama & 6 others; Republic (Applicant); Cabinet Secretary, Ministry of Land and Physical Planning (Respondent); Mutegi & 2 others (Interested Parties)", Case Analysis (2023). Environment and Land Miscellaneous Application E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21955/eng@2023-11-28

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