Deshpal Omprakash Wadhwa v Habib Abu Mohamed & 4 others
The bottom line
#A Kenyan land court dismissed an attempt to revive a dead man's power of attorney and re-litigate an already-decided evidence request.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave be granted to Mohamed Habib Abu to testify on behalf of Habib Abu Mohamed and file a statement and testify on his behalf as a donee under a general power of attorney
- 2.Whether Prayer 3 of the Application is res judicata
- 3.Who shall bear the costs of the application?
Key legal issues
#Whether a donee of a power of attorney may act and testify for a party in the suit
A donee of a power of attorney may act as a recognized agent subject to the court's approval under Order 9 rules 1 and 2, but the power of attorney is extinguished on the donor's death; here the applicant already had locus standi as legal representative of the deceased's estate
Order 9 rule 1 permits acts by a recognized agent subject to court approval, and Order 9 rule 2(a) recognizes power-of-attorney holders. However, the 1st Defendant died on 4th July 2025, extinguishing the general power of attorney dated 29th October 2018. The applicant had already obtained letters of administration and been substituted as 1st Defendant in a representative capacity by orders of 26th May 2026, making prayer 2 overtaken by events and spent.
Whether prayer 3 (summoning Mohamed Jembe) is res judicata
Prayer 3 is res judicata; the same issue - summoning the makers of the land documents, including the certificate of lease for Kilifi/Jimba/441, to interrogate their authenticity - was directly and substantially in issue in the application dated 15th March 2023, dismissed by Odeny, J. on 16th October 2023, between the same parties, with no appeal
Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit between the same parties before a competent court. The earlier application sought forensic examination of the same documents and summoning of their makers; Mohamed Jembe's affidavit denying his signature existed since March 2023. Recasting him as a 'defence witness' does not alter the substance. Res judicata applies to decisions on applications, and no appeal lay against the earlier ruling.
Costs of the application
Costs were addressed inconsistently: the court reasoned the applicant should bear costs as the application was superfluous, but the final order directed costs in the cause
The court noted that costs follow the event and, finding the application superfluous, considered it proper that the applicant bear the costs. However, the operative final orders state that costs of the application shall be in the cause, leaving the ultimate liability to be determined at the conclusion of the suit.
Legal principles established
#- A power of attorney is extinguished upon the death of the donor and cannot survive the deceased
- The doctrine of res judicata applies equally to decisions on applications as it does to final decisions on a matter
- A differently worded application seeking the same substantive relief does not escape section 7 of the Civil Procedure Act; substance prevails over form
- A court cannot, under Article 159(2)(d), sit on appeal over the ruling of a judge of concurrent jurisdiction
Court orders
#- 1.Prayer 2 is overtaken by events and is therefore dismissed
- 2.Prayer 3 of the application is dismissed as res judicata
- 3.Costs of the application shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; application under Sections 3, 3A, 1A, 1B and 63(e) of the Civil Procedure Act
Relief refused
#Leave for Mohamed Habib Abu to file a statement and testify on behalf of the 1st Defendant as donee of a general power of attorney (Prayer 2)
Overtaken by events; the donor died on 4th July 2025 extinguishing the power of attorney, and the applicant was already clothed with locus standi as legal representative via the application dated 11th March 2026
Summons for Mohamed Jembe, retired Land Registrar, to testify on the validity and authenticity of the plaintiff's certificate of lease (Prayer 3)
Res judicata - the same issue was determined in the dismissed application dated 15th March 2023 (Odeny, J., 16th October 2023) between the same parties
Costs
Costs of the application shall be in the cause (final orders), though the court earlier stated the Applicant bears the costs of the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is noteworthy that a power of attorney cannot survive the deceased.
The fact that the present prayer is differently worded does not, in my view, alter the substance of the relief sought.
The court cannot, in the guise of exercising its discretion under Article 159(2)(d) of the Constitution, sit on appeal over the ruling of a judge of concurrent jurisdiction.
i. Prayer 2 is overtaken by events and is therefore dismissed; ii. Prayer 3 of the application is dismissed as res judicata. iii. Costs of the application shall be in the cause.
Issues in the judgment
#Costs order contradicts earlier reasoning
Duplicate paragraph numbering in analysis section
Defective case citation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Deshpal Omprakash Wadhwa v Habib Abu Mohamed & 4 others", Case Analysis (2026). ELC Suit No. 51 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6188/eng@2026-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.