Macharia & another (Both suing under power of attorney of their father Peter Macharia Kimani) v Gichuru & 2 others (Land Case Appeal E021 of 2025) [2026] KEELC 1024 (KLR)
The bottom line
#A Kenyan court confirmed you cannot sue on someone's behalf under a power of attorney without first getting the court's permission—the suit was struck out and costs awarded against them.
What this practically means
#Executive summary
#Key legal issues
#Whether fraud claims can be determined at a preliminary objection stage without evidence
The magistrate did not err; the threshold issue was locus standi under Order 9 rule 2(a), which was properly determined without a full hearing
The court held that the Appellants' locus standi was critical and that Order 9 rule 2(a) required prior court approval before filing suit through a power of attorney. The failure to seek approval was unexplained in the plaint, and the fraud allegations could not excuse non-compliance. The issue of capacity was properly decided at the preliminary stage because it went to the very competence of the suit.
Whether striking out the suit violated Articles 48, 50(1) and 159(2)(d) of the Constitution
No violation; constitutional rights attach only to parties with capacity and locus standi
While the Constitution guarantees access to justice, fair hearing and justice without undue regard to procedural technicalities, these rights are available only to persons with locus standi. Striking out the Appellants' suit did not bar their father, the principal, from instituting the suit himself, so access to justice remained available to the party with capacity.
Whether the magistrate ought to have determined the limitation ground of the preliminary objection
Yes; the magistrate should have dismissed the second (time-bar) ground because fraud was pleaded, engaging section 26(a) of the Limitation of Actions Act
The court found the suit was not time barred because the Appellants pleaded fraud in the plaint and witness statement, asserting recent discovery of a stone house built on the suit land without their knowledge or consent. Under section 26(a), limitation does not run until discovery of the fraud. However, this did not salvage the appeal since the locus standi defect was dispositive.
Legal principles established
#- A party suing through a power of attorney must first obtain the court's approval under Order 9 rule 2(a) of the Civil Procedure Rules before instituting a suit; constitutional rights of access to justice and fair hearing are guaranteed only to persons with locus standi.
- Under section 26(a) of the Limitation of Actions Act, where an action is based on fraud, limitation does not begin to run until the plaintiff discovered or could reasonably have discovered the fraud.
Court orders
#- 1.The Appellants' appeal is dismissed.
- 2.Costs of the appeal awarded to the 1st Respondent.
- On appeal from
- Magistrates' Court (Murang'a)
- MCELC No. E077/2024
- Jurisdiction invoked
- First appellate jurisdiction over a subordinate court ruling (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia & another (Both suing under power of attorney of their father Peter Macharia Kimani) v Gichuru & 2 others (Land Case Appeal E021 of 2025) [2026] KEELC 1024 (KLR)", Case Analysis (2026). Suit No. MCELC No. E077/2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1024/eng@2026-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.