[2021] KEELC 2216 (KLR)
The court found that the plaintiff, due to advanced age and ill health, was unable to attend court and had lawfully executed a registered power of attorney appointing Alexander Kiptanui Serem as his donee. The law permits a party to appoint a recognized agent to act on their behalf at any stage of proceedings, not...
Source-derived case information.
- Citation
- [2021] KEELC 2216 (KLR)
- Parties
- Plaintiff: Francis Kibet Arap Serem; Defendant: Michael Kimtai Ndiwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 42 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Leave to Prosecute Suit Through Donee Under Power of Attorney
- Outcome
- application allowed
- Legal Topics
- Power of Attorney, Representation by Agent, Leave of Court, Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kibet Arap Serem
Plaintiff
Michael Kimtai Ndiwa
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Leave to Prosecute Suit Through Donee Under Power of Attorney
Legal Issues
- 1 Whether the plaintiff should be granted leave to prosecute the suit through a donee under a registered power of attorney.
- 2 Whether the donee, Alexander Kiptanui Serem, should be allowed to appear, adduce evidence, execute documents, and conduct the matter on behalf of the plaintiff.
Ratio Decidendi
The court found that the plaintiff, due to advanced age and ill health, was unable to attend court and had lawfully executed a registered power of attorney appointing Alexander Kiptanui Serem as his donee. The law permits a party to appoint a recognized agent to act on their behalf at any stage of proceedings, not limited to cases of incapacitation. The defendant did not oppose the application. The court was satisfied that the requirements for granting leave to prosecute the suit through a donee were met, and therefore allowed the application as prayed in the relevant prayers, subject to the filing of the original power of attorney before further proceedings by the donee.
Court Disposition
application allowed
Orders
- Leave is granted for the plaintiff/applicant to file the duly registered Power of Attorney No. P.A 73777/1 of 27/5/2021, which shall be deemed duly filed.
- The donee, Alexander Kiptanui Serem, is allowed to appear before court for hearing to adduce evidence as per the Power of Attorney.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC CASE NO. 42 OF 2020
FRANCIS KIBET ARAP SEREM.......................................PLAINTIFF
VERSUS
MICHAEL KIMTAI NDIWA..........................................DEFENDANT
RULING
The Application
1. By a Notice of Motion dated 10/6/2021and filed in court on the same date brought under Section 1A, 1B and3A of the Civil Procedure Act and Order 9 Rule 2of theCivil Procedure Rules,the plaintiff/applicant sought the following orders:
(1) …spent
(2) That the plaintiff/applicant be and is hereby granted leave to file in court the duly registered Power of Attorney No. P.A 73777/1 of 27/5/2021 and that the same be deemed duly filed.
(3) That the duly appointed donee of the plaintiff/applicant Alexander Kiptanui Serem be and is hereby allowed to appear before court on 16/6/2021 for hearing to adduce evidence as per the Power of Attorney.
(4) That henceforth the said donee, Alexander Kiptanui Serem be and is hereby granted leave to appear on behalf of the plaintiff/applicant, adduce evidence, execute all documents and take up conduct of the matter to its conclusion.
(5) That costs of this application be in the cause.
2. The application is supported by the affidavit of the plaintiff sworn on 10/6/2021. The grounds on the face of the application and the supporting affidavit are that the plaintiff is of advanced age and unwell and thus unable to attend court to testify in the suit, and has for that reason donated his powers in the matter to the said Alexander Kiptanui Serem through a registered power of attorney. There is no response by the defendant on the instant application though served and an affidavit of service filed in court on 15/7/2021.
3. The plaintiff filed his written submissions on 2/7/2021. I have perused the court record and found no submissions filed on behalf of the defendant.
4. I have considered the application and the annexture which is a specific power of attorney and which is apparently registered at the Land Titles registry at Nairobi, granting the named done power to pursue the prosecution of the case on behalf of the plaintiff. I have also considered the case law cited by the applicant, that is, John Kamau Gachina Vs Sofia Salim Karama 2016 eKLR. In that case it was stated as follows:
“The defendant already filed his documents and served the plaintiff. He has chosen to give his defence through a recognised agent. There is a provision the law allowing him to do so. I see no reason why the plaintiff should object to the manner chosen by the defendant to present his case. It is my considered opinion and I so hold that a party is at liberty to authorise a recognised agent to act on his/her behalf at any stage of the proceedings. Such appointment need not be on the basis of incapacitation of the donor of a power of attorney but out of choice. Consequently I find no merit in the objection and hereby dismiss it accordingly.”
5. I find that the application dated 10/6/2021 has merit and the same is hereby granted in terms of prayers nos. 2, 3and4 thereof. An original of the power of attorney shall be filed in the court record before any further proceedings are undertaken by or through the said Alexander Kiptanui Serem. The costs of the application shall be in the cause. This matter shall be mentioned on 30/9/2021 for the fixing of a hearing date.
Dated, signedanddeliveredatKitale via electronic mail on this 9thday of August, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE.