MOHAMED SHARIFF & 3 Others v RASHID AZZAN RASHID [2012] KEHC 2728 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

Civil Appeal 21 of 2006

MOHAMED SHARIFF                                                                     SAID BIN ABDALLA ALBAI                                                                     FATMA AHMED....................................................................................APPELLANTS

VERSUS-

RASHID AZZAN RASHID                                                                     throu\'                                                                    ATTORNEY HAMOUD RASHID HASSAN..............................RESPONDENT

JUDGEMENT

1.    This appeal emanated from the ruling of the Principal Magistrate delivered on 21/6/06 in PMCC 447/2005.  The principal issue     raised in the Lower Court and giving rise to the ruling was preliminary point taken on the validity  of the suit which was  premised on a Power of Attorney.

2.    The appellants argument was that the suit  was defective  as the said Power of attorney was incurably defective for  reasons  that;-     a.    It did not show who drew it and where – section 35(1) of the     Advocates Act.     b. It adopts the format of an affidavit.

The Respondents for their part dismissed the objections as     unsuited for a Preliminary objection and argued that if the power of     attorney was defective, that is a matter of form.  The lower court is     its ruling appeared to agree with the respondent and rejected the     objections.

3.    The appellant\'s complaint in this appeal is primarily that     the     court erred for failing ruling to find there was no     power of     attorney and that the magistrate  misdirected     himself with     regard to the provisions of section 34 and 35     of the advocates     Act.

4.    The appellant filed submissions on the appeal.  Having     considered     all the matters raised in this appeal I take the     view that the     same turns on the questions whether the     power of attorney     was proper and valid and ultimately,     the suit properly filed.  The     question of authority to file     suit is important and  ought to be     raised at the earliest     opportunity as happened in this case.

5.    A donee to a power of attorney is recognized agent     under     Order 9 rule 2 Civil Procedure Rules, and he may,     subject to     approval by the court in any particular suit be     authorised “to     make such appearances and application     and do such acts on     behalf of parties”.  The Court     however reserves the power to     direct any such appearance be made by the party in person.

6.    The power of attorney is a registrable instrument under     the     Registration of Titles Act(now repealed) under the     which the suit     property was     registered.  Section 50     thereof prescribes the     form such     an instrument should     take:  form M of the first     schedule or one executed in “due and customary form and giving     sufficient powers in the opinion of the registrar.........”

The purported special power of attorney exhibited in the Lower Court appears  to take the form of an affidavit, rather that form M of the First Schedule. Moreover it does not take the “due and customary form “   of  the power of attorney as we know it.

However, it contains  the essential ingredients as to the     donor,     donees, subject matter and nature of power     donated.  It is also     attested, albeit as via the  jurat form     used in respect of     affidavits.  The power of attorney was     apparently registered.  To     that extent it could be argued     that  it suffices,     notwithstanding the patent defects in     form.  But that is not all.      The appellants objection made     under section 34 and 35 of the     Advocates Act  do not     appear     to have received sufficient     attention in the     Ruling of the Lower Court.

Section 34 (1) (a) prohibits unqualified persons from drawing or preparing any document or instrument “relating to the conveyance of property”.  Section 35 (1) requires that such instruments be endorsed with the name and address of drawer in section 35(1).  The Registrar is equally forbidden from accepting or recognizing any document/instrument referred to in section 34(1) unless the same is endorsed in accordance with section 35(i).

Looking at the impugned Power of Attorney, there is no doubt it is an instrument “relating” to conveyance of property” as contemplated in section 34(i) a of the Advocate act.  On the face of it, one cannot tell whether it was drawn by a qualified person.  That was not a matter of evidence.  The statement by the Lower Court that “nothing in either section (34 & 35 Advocates Act) bars any person from donating a power of attorney(sic)” amounts to a misapprehension of the purport of the  two sections as they relate to the objection before him.  The Power of Attorney used to institute  this suit was bad for failing to comply with section 34 & 35 of the Advocates Act.

10.    Be that as it may, I have noted that the question of     authority     arose against before this court on 2/12/08     when the court     allowed substantial of one of the original     plaintiff as an     administrator of the estate of the principal     (dono) who had     subsequent passed away.

11.    I have anxiously considered whether the above     substitution      should be deemed to cure the deficiencies     existing at the     time     of filing suit, as caused by a     clearly defective Power of Attorney.      Several factors persuade me that this is the most prudent cause of     action.  These include the fact that this is an old case     that has yet     to be heard, the duty of this court in     furthering the overiding     objection in section B of he Civil     Procedure Act and finally the     fact that the appointment     of the initial dome as the legal     representative of the estate satisfactorily settles the question of     his authority to participate in this case, at lease since 2. 12. 08.  It     wold be expensive, time  consuming and unnecessary to     require that a new suit be filed.

12.    Hence, while upholding the arguments by the appellants     I direct     that the suit in the lower court be sustained and     upon the     Respondent regularizing his position therein as     a legal     administrator of the estate of the deceased, the     suit suit be     deemed as properly filed so that early     hearing dates can be     taken. The costs of this appeal and  the ruling  in the lower     court are awarded to the appellant.

Delivered and signed at Malindi this 30th day of July, 2012 in the presence of Ms Nyamida holding brief for appellant, Mr Mouko  for the respondent absent, c/c-Evans

C.W.MEOLI JUDGE