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ELCDismissed· [2024] KEELC 4458 (KLR)

Kanyoni & 2 others v Nairobi City County; Mwangi (Interested Party); Falcon Properties Limited (Proposed Defendant) (Environment & Land Case 633 of 2009) [2024] KEELC 4458 (KLR)

Environment and Land Court
3 June 2024
2,439 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court held that someone acting under a power of attorney cannot file court applications without first getting the court's approval.

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 Nairobi (Mogeni J) delivered virtually on 3 June 2024 on an Interested Party/Applicant's Chamber Summons dated 17/04/2024, brought under Order 1 Rules 3, 10(2) and 14 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The Applicant, the donee of a power of attorney donated by Jane Waigwe Gathura on 17/06/2023, sought to be joined as a defendant alongside a proposed third defendant and for leave to file a defence and counterclaim. The Plaintiffs opposed through a Notice of Preliminary Objection dated 22/04/2024 contending that the Applicant had no locus standi because he acted on the power of attorney without the court's approval required by Order 9 Rule 2(a). The court framed three issues: the merits of the preliminary objection, whether the application met the joinder threshold, and costs. Applying the Mukisa Biscuits test and following Mwongo J in Jack J. Khanjira v Safaricom Limited, the court held that a recognized agent holding a power of attorney may only act subject to the court's approval, and that no party may presume to act on a power of attorney alone. However, the court also held that an act done without approval is irregular rather than fatally defective. The Interested Party was found to lack locus standi and to have misled the court in his earlier joinder application by not disclosing the power of attorney. The preliminary objection was upheld and the application dismissed with costs to the Plaintiffs.

Key legal issues

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01

Whether the preliminary objection on the Interested Party's locus standi was merited

Holding

The preliminary objection was upheld; the application was incurably without locus as it was filed without the requisite court approval of the power of attorney

Reasoning

Applying Mukisa Biscuits, the objection raised a pure point of law. Order 9 Rule 2(a) requires a recognized agent holding a power of attorney to act subject to the court's approval. The Interested Party never sought such approval and misled the court when joining as an interested party by not disclosing the power of attorney. The objection was therefore merited.

p. 5
02

The proper construction of Order 9 Rule 2(a) of the Civil Procedure Rules

Holding

The rule requires that the agent hold a power of attorney and that he act subject to the approval of the court; the approval relates to the donee's acts, not the instrument itself

Reasoning

Following Mwongo J in Jack J. Khanjira v Safaricom Limited, the court held that it is the scope of the agency that is recognized, not the mere fact of agency. The provision cannot be read to mean the power of attorney itself requires approval; rather the donee's applications, acts and appearances require approval, which the court exercises judicially.

p. 4
03

Whether the application met the threshold for joinder of a party

Holding

Not reached on the merits; the application failed on locus standi before the joinder threshold was considered

Reasoning

Because the preliminary objection succeeded, the court did not determine whether the joinder criteria under Order 1 Rule 10(2) were met. The dismissal was based solely on the applicant's lack of capacity to move the court through a recognized agent acting without approval.

p. 5

Legal principles established

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  • A donee of a power of attorney may only act in a suit as a recognized agent subject to the prior approval of the court; acting without such approval is an irregularity, not a fatality rendering the process defective
  • No party may presume to act or appear before the court merely on the basis of a power of attorney without first obtaining the court's approval

Court orders

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  1. 1.The Notice of Preliminary Objection dated 22/04/2024 is upheld.
  2. 2.The Interested Party/Applicant's Application dated 17/04/2024 is dismissed with costs to the Plaintiffs.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 3
  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Civil Procedure Rules, 2010Order 1 Rule 14
  • Civil Procedure Rules, 2010Order 9 Rule 1 (including proviso (a))
  • Civil Procedure Rules, 2010Order 9 Rule 2 (and Rule 2(a))
  • Civil Procedure ActSection 3A
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Advocates ActSection 85

Cases cited (2)

  • Mukisa Biscuits (case)
  • Jack J. Khanjira and Anor – Versus - Safaricom Limited
    [2012] eKLR
Jurisdiction invoked
Order 1 Rules 3, 10(2) and 14 and Order 9 Rules 1 and 2 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act; Article 159(2)(d) of the Constitution of Kenya, 2010

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, "Kanyoni & 2 others v Nairobi City County; Mwangi (Interested Party); Falcon Properties Limited (Proposed Defendant) (Environment & Land Case 633 of 2009) [2024] KEELC 4458 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4458/eng@2024-06-03

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