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ELCStruck OutNot stated in the judgment (land parcel NO South Teso/Amukura/711)· [2025] KEELC 162 (KLR)

Okwarere alias John Wycliffe Okware v Emongor (Enviromental and Land Originating Summons 5 of 2019) [2025] KEELC 162 (KLR)

Environment and Land Court
29 January 2025
BOBOAZ N. OLAO
994 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a request to reopen a land case because the Power of Attorney authorizing it was never registered, so the representative had no legal capacity to act.

What this practically means

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Executive summary

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In a land dispute over parcel NO South Teso/Amukura/711, the Plaintiff, who claims a portion of the Defendant's land by adverse possession, closed his case on 13th December 2023 after the testimony of his two witnesses. The defence hearing set for 29th January 2024 did not proceed because the Defendant could not be traced, and on 12th February 2024 his counsel closed the defence case, citing difficulties communicating with his client. The Defendant then filed a Notice of Motion seeking to set aside that order and to re-open his case so that he and his witness could testify, explaining that he had been sick and bed-ridden and out of communication with his counsel, and that he had donated a Power of Attorney to Michael Okiring Emongor to take over conduct of the matter. The Plaintiff opposed the application as an attempt to delay the case. The court identified the dispositive problem as the Power of Attorney, which was unregistered. Since the suit involves registered land, Section 4 of the Registration of Documents Act required registration of the instrument, both in the Registry of Documents and in the relevant land registry, as the Court of Appeal held in Euton Njuki Makungo v R. Without registration the donee lacked capacity to testify or act for the Defendant, making allowance of the motion futile. The court therefore struck out the Notice of Motion with costs to the Plaintiff, on 29th January 2025.

Key legal issues

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01

Capacity conferred by an unregistered Power of Attorney over land

Holding

The unregistered Power of Attorney dated 3rd February 2024 could not empower Michael Okiring Emongor to conduct the matter or testify for the Defendant, so the application had no foundation

Reasoning

The suit concerns a dispute over registered land in which the donee was intended to take over the Defendant's case and testify. Under Section 4 of the Registration of Documents Act, a Power of Attorney conferring the right to deal with the subject land must be registered. Relying on the Court of Appeal in Euton Njuki Makungo v R, the court held that the instrument must be registered in the Registry of Documents and in the relevant land registry. Absent registration, allowing the application would be an act in futility.

p. 2

Legal principles established

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  • A Power of Attorney conferring the right to deal with registered land must be registered under the Registration of Documents Act, both in the Registry of Documents and in the land registry for the subject property; an unregistered Power of Attorney leaves the donee without capacity to act in the proceedings

Court orders

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  1. 1.The Notice of Motion dated 9th February 2024 and filed on 12th February 2024 is struck out with costs to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)
  • Constitution of KenyaArticle 159(2)
  • Registration of Documents ActSection 4 (Cap 285)

Cases cited (1)

  • Euton Njuki Makungo -v- R & 2 Others
    C.A. Civil Appeal No 35 of 2013 [2014 eKLR]
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act as read with Section 159(2) of the Constitution (invoked by the applicant); original civil jurisdiction over a dispute on registered land

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, "Okwarere alias John Wycliffe Okware v Emongor (Enviromental and Land Originating Summons 5 of 2019) [2025] KEELC 162 (KLR)", Case Analysis (2025). Not stated in the judgment (land parcel NO South Teso/Amukura/711). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/162/eng@2025-01-29

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