1. The 2nd defendant/applicant filed the Notice of Motion Application, dated July 8, 2025, requesting that the current suit be dismissed with costs.
2. The affidavit of the 2nd defendant supports the application and is also based on the grounds outlined in the application's body.
3. The application was canvassed through written submissions.
4. The application did not elicit any response.
5. The applicant states that the suit filed by the plaintiff here on September 15, 2023, was made under a general power of attorney issued by Joseph A. Ngetich, registered with the Registrar of Documents in Mombasa on August 23, 2019. The donor reportedly died on June 17, 2020, and a burial permit was issued on June 18, 2020. According to the documentation, the donor died three years before the current suit was filed.
6. The issue then, which the court has to decide, is whether the death of the donor of the power of attorney survives his death.
7. Mr. Tindika, on behalf of the applicant, does not believe so. I agree with him that once a donor dies, the power of attorney issued is terminated. See the Court of Appeal decision in Meru & 3 others v Meru [2023] KECA 1600 (KLR). The case involved the appellants challenging the decision of the Environment and Land Court (ELC) and the Magistrate's Court, both of which held that a power of attorney is extinguished upon the donor's death but that the cause of action survives. The respondent, acting as a donee of a power of attorney for his deceased mother, filed a suit for rental income. After her death, the respondent obtained letters of administration ad litem and requested substitution in the suit. The appellants argued that the suit had abated. Both courts found that the cause of action had survived and that substitution was appropriate. The Court of Appeal dismissed the appeal, ruling that although the power of attorney was extinguished, the substitution was valid and could proceed.
8. The Court of Appeal confirmed that both lower courts agree that the power of attorney terminates upon the donor’s death, but substitution could be permitted to advance the case.
9. This was the same holding in the decisions in South Nyanza Sugar Company Limited v Andiga (Suing as administrator of the Estate of Francis Ndiga Ongoko) [2023] KEHC 2197 (KLR), Macfoy v United Africa Co. LTD (1961) 3 ALL ER 1169, and Shah v The Chief Land Registrar, Nairobi Lands Registry & 2 others [2022] KEELC 14970 (KLR).
10. As stated, I did not receive a response from the respondents.
11. Since the donor of the General Powers of Attorney held by the plaintiff has died, the document is extinguished, and therefore, we technically have no case.
12. The application dated July 8, 2025, is hereby allowed, and the current suit is hereby struck out with costs.
Dated, signed, and delivered at Malindi virtually on this 16th day of December 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Tindika, for the 2nd Defendant/Applicant
Happy: Court Assistant
2. The affidavit of the 2nd defendant supports the application and is also based on the grounds outlined in the application's body.
3. The application was canvassed through written submissions.
4. The application did not elicit any response.
5. The applicant states that the suit filed by the plaintiff here on September 15, 2023, was made under a general power of attorney issued by Joseph A. Ngetich, registered with the Registrar of Documents in Mombasa on August 23, 2019. The donor reportedly died on June 17, 2020, and a burial permit was issued on June 18, 2020. According to the documentation, the donor died three years before the current suit was filed.
6. The issue then, which the court has to decide, is whether the death of the donor of the power of attorney survives his death.
7. Mr. Tindika, on behalf of the applicant, does not believe so. I agree with him that once a donor dies, the power of attorney issued is terminated. See the Court of Appeal decision in Meru & 3 others v Meru [2023] KECA 1600 (KLR). The case involved the appellants challenging the decision of the Environment and Land Court (ELC) and the Magistrate's Court, both of which held that a power of attorney is extinguished upon the donor's death but that the cause of action survives. The respondent, acting as a donee of a power of attorney for his deceased mother, filed a suit for rental income. After her death, the respondent obtained letters of administration ad litem and requested substitution in the suit. The appellants argued that the suit had abated. Both courts found that the cause of action had survived and that substitution was appropriate. The Court of Appeal dismissed the appeal, ruling that although the power of attorney was extinguished, the substitution was valid and could proceed.
8. The Court of Appeal confirmed that both lower courts agree that the power of attorney terminates upon the donor’s death, but substitution could be permitted to advance the case.
9. This was the same holding in the decisions in South Nyanza Sugar Company Limited v Andiga (Suing as administrator of the Estate of Francis Ndiga Ongoko) [2023] KEHC 2197 (KLR), Macfoy v United Africa Co. LTD (1961) 3 ALL ER 1169, and Shah v The Chief Land Registrar, Nairobi Lands Registry & 2 others [2022] KEELC 14970 (KLR).
10. As stated, I did not receive a response from the respondents.
11. Since the donor of the General Powers of Attorney held by the plaintiff has died, the document is extinguished, and therefore, we technically have no case.
12. The application dated July 8, 2025, is hereby allowed, and the current suit is hereby struck out with costs.
Dated, signed, and delivered at Malindi virtually on this 16th day of December 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Tindika, for the 2nd Defendant/Applicant
Happy: Court Assistant