Hase & another v Abdullahi/Buko & 2 others (Environment and Land Appeal E019 of 2024) [2025] KEELC 5739 (KLR)
The bottom line
#The Environment and Land Court dismissed the appeal because the power of attorney used gave no authority to sue, was unstamped, and ownership of the plot was unproven.
What this practically means
#Executive summary
#Key legal issues
#Locus standi premised on a special power of attorney
The special power of attorney conferred only power to sell plot 528T and recover sale proceeds, not to sue; the appellants also purported to sue in their own names rather than the donor's, and the un-stamped, unregistered power of attorney was invalid, leaving them divested of locus standi.
The court examined the scope of the special power of attorney and found it limited to sale and recovery of sums. No express authority to litigate was granted. Further, a donee with authority to sue must still sue in the donor's name. The power of attorney was also unstamped contrary to sections 19 and 20 of the Stamp Duty Act and unregistered contrary to section 4 of the Registration of Documents Act, rendering it inadmissible and invalid. The proceedings were therefore fatally defective.
Proof of ownership of plot no. 528T Isiolo
The appellants bore the burden of proving ownership but failed: the letter of allotment did not reference plot 528T, no evidence of acceptance of allotment terms, payment of stand premium, cadastral plan or allotment minutes was produced, the plot register was uncertified, and the status report was prepared by an unqualified person.
Applying sections 107, 108 and 109 of the Evidence Act, the burden lay on the appellants. The allotment letter of 21st February 1999 related to an unsurveyed commercial plot and did not mention plot 528T, and no evidence linked it to that plot. The register extract lacked certification under section 80 of the Evidence Act, and PW1's status report carried no weight as she admitted she was not a qualified valuer, surveyor or physical planner. The county surveyor and physical planner's report showed plot 528T was not traceable on the ground.
Interference with the trial court's findings on first appeal
An appellate court may interfere only where the trial court misapprehended the evidence, acted on no evidence, reached perverse findings, or erred in principle; no such error was demonstrated here, so the dismissal of the suit was affirmed.
Guided by Kenya Urban Roads Authority v Belgo Holdings and Peters v Sunday Post, the court reaffirmed its duty to re-evaluate the evidence but cautioned against disturbing findings of a trial court that saw and heard witnesses. Having re-appraised the record, the court found the trial magistrate's conclusions grounded on the evidence, including the surveyor's report, and declined to interfere.
Legal principles established
#- A donee of a special power of attorney that confers no express power to litigate cannot commence proceedings on behalf of the donor; and even where such power exists, the donee must sue in the donor's name, not the donee's own name.
- An unstamped instrument chargeable with stamp duty is inadmissible in evidence and, even if admitted, carries no probative value.
- Mere production or admission of a document is distinct from proof of it; probative value attaches only upon formal proof.
Court orders
#- 1.The Appeal be and is hereby dismissed
- 2.The Judgment and consequential decree of the subordinate court dated 27th September 2024 be and is hereby affirmed
- 3.Costs of the Appeal be and are hereby awarded to the 2nd & 3rd Respondents only
- 4.The Costs in terms of clause (III) shall be agreed upon and in default to be taxed by the Deputy Registrar
- On appeal from
- Subordinate Court (Magistrates' Court), Isiolo
- not stated in the judgment
- Jurisdiction invoked
- First appeal under section 78 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hase & another v Abdullahi/Buko & 2 others (Environment and Land Appeal E019 of 2024) [2025] KEELC 5739 (KLR)", Case Analysis (2025). Undated Memorandum of Appeal (Environment and Land Court Appeal, Isiolo). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5739/eng@2025-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.