Bijal Virchand Malde(Executor of the Estate of Lalitaben Kantilal Shah) v Southern Credit Banking Corporation Ltd & another [2008] KECA 208 (KLR)
The bottom line
#Kenya's Court of Appeal froze a Nairobi property's sale pending appeal but refused orders against the bank that had already transferred it.
What this practically means
#Executive summary
#Key legal issues
#Whether a suit abates automatically under Order XXIII rule 3(2) of the Civil Procedure Rules where no substitution application is made within one year of a plaintiff's death
The point is arguable and not frivolous; the Court declines to pronounce on it finally, noting the question may be of grave importance to the development of jurisprudence
The applicant contended abatement under Order XXIII rule 3(2) is not automatic and requires a court order; the respondents said the word 'shall' makes abatement automatic. Applying the principle that a rule 5(2)(b) court must not decide the arguable point, the Court found the issue suitable for ventilation on appeal, drawing an analogy with rule 82(a) of the Court of Appeal Rules where what once appeared automatic was held not to be so.
Whether an injunction could issue against the first respondent
No injunction against the first respondent, which had transferred the property and no longer controlled it, and against whom no injunctive relief had been sought below
The first respondent had transferred the suit property to the second respondent and could no longer control it. Further, the applicant had not sought injunctive orders against the first respondent in the application before the superior court, so the High Court could not have granted such an order, and section 3(3) of the Appellate Jurisdiction Act similarly constrained this Court.
Whether preservation orders could issue against the second respondent though not yet a party
Yes; a limited preservation injunction was granted because refusal could render the intended appeal nugatory and the property's value to the estate could not be adequately compensated in damages
The refusal to join the second respondent below is itself a subject of the intended appeal, so it could not object that no orders could issue against it. The undisputed allegation that the property was sold without valid statutory notice, its sentimental value to the estate, and the possibility that abatement may be found non-automatic made preservation necessary; monetary compensation would not be satisfactory, though the second respondent should not be prevented from taking possession.
Legal principles established
#- An applicant under rule 5(2)(b) of the Court of Appeal Rules must demonstrate that the appeal or intended appeal is arguable and that, if not granted, the success of the appeal would be rendered nugatory
- On a rule 5(2)(b) application the Court only decides whether an arguable point is raised; it must not decide the point finally, lest it interfere with the powers of the bench that will hear the appeal
- Under section 3(3) of the Appellate Jurisdiction Act, the Court of Appeal cannot grant relief that was not sought in the superior court
Court orders
#- 1.The second respondent is restrained by itself, servants, agents or whatsoever from offering for sale, alienating in any manner the suit property comprised in title number L.R 209/75/15 original number 209/75/9/3 situated in Nairobi till the intended appeal is heard and determined
- 2.Costs of the notice of motion to be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 543 of 2005 (ruling of Okwengu J dated 18th March 2008)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction pending appeal); section 3(3) of the Appellate Jurisdiction Act, Chapter 9 also referenced on the court's powers
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Tarasira Wambui P. Gichovi (Legal Representative of the Estate of Njue Munge, Deceased) v M'ithara & another[2016] KEHC 7614 (KLR)1 Apr 2016
Cite this brief
#Cite this brief
Caselaw, "Bijal Virchand Malde(Executor of the Estate of Lalitaben Kantilal Shah) v Southern Credit Banking Corporation Ltd & another [2008] KECA 208 (KLR)", Case Analysis (2008). Civil Appli No. 56 of 2008 (UR 32 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/208/eng@2008-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.