[2012] KEHC 2434 (KLR)
The court found that Elly Esposito, acting alone as a donee of a Power of Attorney, lacked the requisite locus standi to institute the suit on behalf of Ute Kuhn, as the Power of Attorney was granted before Ute Kuhn was appointed and confirmed as administrator of the estate of Joseph Rudolf Kuhn. The court held that...
Source-derived case information.
- Citation
- [2012] KEHC 2434 (KLR)
- Parties
- Plaintiff: Elly Esposito; Defendant: Bernd Graff; Defendant: The District Land Registrar Mombasa
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 38 of 2010
- Procedural Posture
- Civil Case / Ruling
- Outcome
- Application dismissed; orders sought declined.
- Judges
- CW Meoli
- Legal Topics
- Power of Attorney, Administration of Estates, Locus Standi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elly Esposito
Plaintiff
Bernd Graff
Defendant
The District Land Registrar Mombasa
Defendant
Procedural Posture
Civil Case / Ruling
Legal Issues
- 1 Whether Elly Esposito, as a donee of a Power of Attorney, had locus standi to institute the suit alone on behalf of Ute Kuhn.
- 2 Whether the Power of Attorney was valid given the timing of Ute Kuhn's appointment as administrator of the estate of Joseph Rudolf Kuhn.
Ratio Decidendi
The court found that Elly Esposito, acting alone as a donee of a Power of Attorney, lacked the requisite locus standi to institute the suit on behalf of Ute Kuhn, as the Power of Attorney was granted before Ute Kuhn was appointed and confirmed as administrator of the estate of Joseph Rudolf Kuhn. The court held that only the administrator herself, once properly appointed, could make the necessary applications in person and not through agents. The court exercised its discretion under the Civil Procedure Rules to decline the orders sought by the applicant and directed the administrator to appear personally to make any necessary applications.
Court Disposition
Application dismissed; orders sought declined.
Orders
- The orders sought by the applicant are declined.
- The administrator of the estate of Joseph Rudolf Kuhn is directed to appear in person and make the necessary applications herself.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATMALINDI
CIVIL CASE 38 OF 2010
ELLY ESPOSITO...................................................................................................PLAINTIFF
VERSUS
1. BERND GRAFF
2. THE DISTRICT LAND REGISTRAR MOMBASA.........................................DEFENDANTS
RULING
1. Having considered the entire record in this OS and the respective submissions I note that;-
a.A Power of Attorney filed with the plaint purportedly authorized ELLY ESPOSITO and FRANCO ESPOSITO to act on behalf of UTE KUHN with regard to plot NO. 1965 Malindi. However, this suit is filed by only one of the donees, ELLY ESPOSITO.
b.The said Power of Attorney was given on 30/5/06 by UTE KUHN. However, she was only appointed and confirmed as the administrator of the estate of the registered owner of the suit property, the late JOSEPH RUDOLF KUHN on 16th December 2006 (see Certificate of Confirmation of a Grant.)
2. In light of these matters, and bearing in mind the nature of the subject matter at hand, I would decline to grant the orders sought by the applicant ELLY ESPOSITO. The administrator of the estate of JOSEPH RUDOLF KUHN, is directed to appear in person and to make the necessary applications herself, rather than through agents. This I direct in exercise of my discretion under order a rule 1 & 2 Civil Procedure Rule and out of abundant caution.
Delivered in the absence of parties on 31st July, 2012 in the presence of Mr. Otara for the applicant
1st respondent-no appearance
2nd respondent-no appearance, Court clerk – Evans
C. W. Meoli
JUDGE