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ELCOtherNotice of Motion dated 12th June 2023 in ELC No 115 of 2019 (consolidated with HCCC No 317 of 2019, Nakuru CMCC No 1074 of 2013 and Nakuru ELC Civil Case No 519 of 2013)· [2024] KEELC 7080 (KLR)

Shah & another v Ngunyangi and Munene (Sued as the Legal Representatives of Ben Ngunyangi Iragu (Deceased)) & another (Environment & Land Case 115 of 2019) [2024] KEELC 7080 (KLR)

Environment and Land Court
29 October 2024
2,994 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Nakuru court allowed diaspora landowners to fight their case through power-of-attorney agents, but only after proving the donors are still alive.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (M. A. Odeny, J) determined a Notice of Motion dated 12th June 2023 in which the Plaintiffs in ELC No 115 of 2019, Girish Vaghji Shah and Vipul Patel, now resident in Australia, sought court approval and recognition of Joseph Chege Muthama and Albert Gatimuh Nderitu as their recognized agents under Order 9 Rule 2 of the Civil Procedure Rules, to make applications, enter appearance and testify on their behalf. The Plaintiffs hold general powers of attorney donated on 19th June 2013 and registered on 26th June 2013 over Nakuru Municipality Block 18/48, the suit property. The 1st Defendant in ELC No 115 of 2019 and the Plaintiff in the consolidated ELC No 519 of 2013 opposed, arguing the powers were restricted, did not authorize litigation, were improperly registered over disputed land, were invoked retrospectively ten years after donation, and that the donees were unqualified persons under the Advocates Act. The court applied Order 9 Rule 2, holding that it has a judicial discretion to approve or decline agents holding powers of attorney. Adopting Jack J. Khanjira v Safaricom and Aswa Developers, it held that donees acting as recognized agents, not advocates, are not barred by the Advocates Act. Observing that powers of attorney are extinguished upon a donor's death and that courts must guard against fraud in land dealings, the court allowed the application conditionally: the donors must appear virtually, or file notarized documentation from Australia confirming they are alive and still wish the donees to act, within 14 days. Costs were awarded in the cause.

Key legal issues

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01

Whether donees of general powers of attorney over land can be approved as recognized agents to prosecute and testify in a suit on behalf of non-resident donors

Holding

The court has a judicial discretion to approve such agents; recognition granted conditionally on proof that the donors are alive and still wish the donees to act

Reasoning

Order 9 Rule 2 permits appearances through persons holding powers of attorney subject to court approval. The powers here were general, covering all acts in relation to the suit property, and the donees were not acting as advocates, so the Advocates Act did not bar them. However, given the prevalence of fraud involving powers of attorney, and that a power is extinguished on the donor's death, the court conditioned approval on the donors in Australia appearing virtually or filing notarized confirmation that they are alive and still wish the donees to proceed, within 14 days.

p. 6
02

Whether the donees, being non-advocates, are unqualified persons under the Advocates Act

Holding

They are not; Section 34 of the Advocates Act does not prevent recognized agents or persons acting in person from filing documents

Reasoning

Relying on Aswa Developers, the court held that a person may institute or prosecute a suit through a recognized agent, an advocate or in person. The Advocates Act governs only those presenting themselves as advocates. Since the donees did not hold themselves out as advocates but acted under powers of attorney as recognized agents, the prohibitions on unqualified persons did not apply to them.

p. 5

Legal principles established

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  • A donee of a power of attorney may act as a recognized agent in a suit only upon approval of the court, which oversees the scope and extent of the agency
  • A power of attorney becomes inoperative and invalid upon the death of the donor

Court orders

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  1. 1.Application allowed conditionally, upon the donors appearing virtually to prove that they exist or filing documentation certified by a Notary Public in Australia confirming they are alive and still wish the applicants to proceed under the power of attorney, within 14 days
  2. 2.Costs of the application shall be in the cause
Jurisdiction invoked
Order 9 Rule 2 of the Civil Procedure Rules, 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, "Shah & another v Ngunyangi and Munene (Sued as the Legal Representatives of Ben Ngunyangi Iragu (Deceased)) & another (Environment & Land Case 115 of 2019) [2024] KEELC 7080 (KLR)", Case Analysis (2024). Notice of Motion dated 12th June 2023 in ELC No 115 of 2019 (consolidated with HCCC No 317 of 2019, Nakuru CMCC No 1074 of 2013 and Nakuru ELC Civil Case No 519 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7080/eng@2024-10-29

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