[2017] KEELC 2814 (KLR)
The court found that Joseph Kariithi, who purported to file the application to amend the defence on behalf of the 2nd defendant, failed to annex any power of attorney or other documentary proof of authority. In the absence of such proof, the court could not recognize him as having capacity to act for the 2nd...
Source-derived case information.
- Citation
- [2017] KEELC 2814 (KLR)
- Parties
- Plaintiff: Dominic Mburu Njuguna; Defendant: Peter Njuguna Gitau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 83 of 2013
- Procedural Posture
- Ruling / Application to Amend Defence
- Outcome
- application struck out
- Judges
- MA Silau
- Legal Topics
- Amendment of Pleadings, Power of Attorney, Capacity to Sue or Defend, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Mburu Njuguna
Plaintiff
Peter Njuguna Gitau
Defendant
Procedural Posture
Ruling / Application to Amend Defence
Legal Issues
- 1 Whether an application to amend defence can be validly filed by a person claiming to hold a power of attorney without annexing the power of attorney.
- 2 Whether Joseph Kariithi had the legal capacity to file the application on behalf of the 2nd defendant.
Ratio Decidendi
The court found that Joseph Kariithi, who purported to file the application to amend the defence on behalf of the 2nd defendant, failed to annex any power of attorney or other documentary proof of authority. In the absence of such proof, the court could not recognize him as having capacity to act for the 2nd defendant. The court emphasized that only a party or their duly authorized agent or advocate may file applications, and that strangers to the proceedings cannot be permitted to do so. Consequently, the application was struck out for want of capacity, with costs awarded against Joseph Kariithi.
Court Disposition
application struck out
Orders
- The application dated 9 March 2012 is struck out.
- Costs of the application to be paid by Joseph Kariithi.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 83 OF 2013
DOMINIC MBURU NJUGUNA....................................PLAINTIFF
VERSUS
PETER NJUGUNA GITAU......................................DEFENDANT
RULING
(Application to amend defence; application filed by a person who has described himself as holding a power of attorney; no power of attorney annexed; application struck off with costs)
1. The application before me is that dated 9 March 2012 allegedly filed by the 2nd defendant. I say allegedly for reasons that will shortly become clear. The said application seeks to amend the defence filed by the 2nd defendant so as to include a counterclaim.
2. The suit itself was commenced on 13 January 2010. The plaintiff claims to have purchased on 2 July 2002, from the 1st defendant, the land parcel Nakuru Municipality Block 16/286/15 (new number Nakuru Municipality Block 16/634). He has averred that he moved into the land and has made permanent structures. He has pleaded that on 4 January 2010, the 2nd defendant came to the land and claimed that the same had been sold to him by the 1st defendant. It is that action which prompted the plaintiff to file suit. In the suit, the plaintiff wants a declaration that he is the lawful owner of the suit land and cancellation of the title issued to the 2nd defendant.
3. The 2nd defendant filed defence vide which he inter alia pleaded that he purchased the suit land from the 1st defendant on 15 May 2002. On 3 July 2007, he was issued with a certificate of lease. He pleaded that he is entitled to ask the plaintiff to vacate the suit land.
4. I started this ruling by stating that the application herein has allegedly been filed by the 2nd defendant. I say so because the supporting affidavit to this application has been sworn by one Joseph Kariithi. He has deposed that he has authority to swear the supporting affidavit by virtue of a power of attorney issued to him by the 2nd defendant. However no power of attorney was annexed to the supporting affidavit. I therefore cannot hold that the said Joseph Kariithi has capacity or power to file any papers or applications on behalf of the 2nd defendant. I have absolutely no document that the 2nd defendant has donated any power of attorney to the said Joseph Kariithi or to any other person. The indication from the documents filed herein is that the 2nd defendant, Gatimu Kariithi, is not acting through any agent other than his advocates on record.
5. I cannot allow a stranger to file applications on behalf of a litigant. There being no proof that Joseph Kariithi holds any power of attorney, I have little option but to strike out this application. The costs will be paid by the said Joseph Kariithi.
6. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 17th day of May 2017.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In the presence of :
Mr. Okwengu holding brief for Mr. Ndubi for the 2nd defendant.
Other parties and counsels: absent
Court Assistant : Nelima
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU