[2019] KEELC 3633 (KLR)
The court found that the plaintiff, acting as a donee under a Special Power of Attorney, failed to obtain the mandatory approval of the court before instituting the suit as required by Order 9, Rule 2 of the Civil Procedure Rules, 2010. Furthermore, the Special Power of Attorney relied upon was neither signed nor...
Source-derived case information.
- Citation
- [2019] KEELC 3633 (KLR)
- Parties
- Plaintiff: Teresia Wanjiku (Suing as the Legal Representative/Donee of Philip Wakaba); Defendant: Cheromit Development Company
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 318 of 2016
- Procedural Posture
- Preliminary Objection / Ruling
- Outcome
- suit struck out
- Judges
- A Ombwayo
- Legal Topics
- Power of Attorney, Capacity to Sue, Preliminary Objection, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Wanjiku (Suing as the Legal Representative/Donee of Philip Wakaba)
Plaintiff
Cheromit Development Company
Defendant
Procedural Posture
Preliminary Objection / Ruling
Legal Issues
- 1 Whether the plaintiff had proper authority and capacity to institute the suit as required by law.
- 2 Whether the suit offends Order 9, Rule 2 of the Civil Procedure Rules, 2010 for lack of court approval for the recognized agent.
Ratio Decidendi
The court found that the plaintiff, acting as a donee under a Special Power of Attorney, failed to obtain the mandatory approval of the court before instituting the suit as required by Order 9, Rule 2 of the Civil Procedure Rules, 2010. Furthermore, the Special Power of Attorney relied upon was neither signed nor registered, rendering it irregular, null, and void. As a result, the plaintiff lacked the requisite capacity to sue, and the suit was a nullity ab initio. The preliminary objection was therefore upheld, and the suit was struck out for want of capacity and non-compliance with procedural requirements.
Court Disposition
suit struck out
Orders
- The preliminary objection is upheld.
- The suit is struck out for want of capacity and non-compliance with Order 9, Rule 2 of the Civil Procedure Rules, 2010.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 318 OF 2016
TERESIA WANJIKU
(Suing as the Legal Representative/Donee of PHILIP WAKABA)….PLAINTIFF
VERSUS
CHEROMIT DEVELOPMENT COMPANY…...…………………. DEFENDANT
RULING
The defendant has raised a preliminary objection that the plaintiff’s suit offends the mandatory provision of Order 9, Rule 2 of the Civil Procedure Rules, 2010 as the plaintiff failed to seek the approval of the court before filing the suit herein.
That the plaintiff did not have proper authority to institute the present proceedings in any event. The preliminary objection is not controverted by the plaintiff.
Order 9, Rule 2 of the Civil Procedure rules 2010 provides that the recognized agents of parties by whom such appearances, applications and acts may be made or done are subject to approval by the court, persons holding powers of attorney authorizing them to make such appearances and applications and do such acts on behalf of parties.
The Special Power of Attorney relied upon by the plaintiff is neither signed nor registered. I do find the same to be irregular, null and void. The suit herein is a nullity having been filed without approval of the court and without capacity. The preliminary objection is upheld the suit as struck out.
Dated and delivered at Eldoret this 10th day of April, 2019.
A. OMBWAYO
JUDGE