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Court of AppealDismissedCivil Appeal No. 149 of 2010· [2018] KECA 114 (KLR)

Dipak P. Shah v Sudhir K. Shah & 28 others [2018] KECA 114 (KLR)

Court of Appeal
12 October 2018
2,832 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a lawsuit claiming fraud-driven conversion of Kshs 176 million in bank deposits can proceed to full trial.

What this practically means

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Executive summary

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The appellant, Dipak P. Shah, appealed against a ruling of Emukule, J. of the High Court at Nairobi dated 15th September 2004, declining to strike out HCCC No. 728 of 2003 brought by respondents 1 to 18 against him and others. The plaintiffs alleged that in 1998 the defendants fraudulently converted Bearer Certificate Deposits worth Kshs 176,050,000 held with Reliance Bank, some defendants being directors, shareholders or advocates. The appellant applied under Order VI rule 13(1)(a) and (d) of the Civil Procedure Rules to strike out the suit as time-barred under section 4(2) of the Limitation of Actions Act, disclosing no reasonable cause of action, and as an abuse of process, also questioning the verifying affidavit and misjoinder. The High Court dismissed the application, holding the suit disclosed a reasonable cause of action, was not time-barred because limitation runs from discovery of the fraud under section 26, and raised matters for trial. Before the Court of Appeal (Ouko, M'Inoti and Sichale, JJ.A.), hearing by written submissions, the appellant argued the claim was filed out of time since the plaintiffs knew of the encashment in November 1998. The plaintiffs maintained the fraudulent conversion was discovered only in 2002 after complex forensic investigations, and endorsed the judge's view that most issues required a full trial. The appeal against the deceased 22nd respondent was marked as abated under rule 99. The Court, applying D.T. Dobie v Muchina and Halsbury's Laws, held that the learned judge did not err in refusing to strike out the suit, expressly declining to determine limitation questions as these remain live before the trial court. The appeal was dismissed with costs.

Key legal issues

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01

Whether the plaintiffs' claim in conversion was time-barred under section 4(2) of the Limitation of Actions Act

Holding

The Court declined to determine limitation definitively, holding that the issues remain live before the trial court and that the learned judge did not err in refusing to strike out the suit on that basis

Reasoning

The Court noted it was common ground that the claim was founded on conversion and that a three-year limitation period under section 4(2) applied. However, because the questions of when the fraud was discovered under section 26 require evidence, the Court advisedly declined to say more, deferring those issues to the trial court and confining itself to whether the striking-out discretion was properly exercised.

p. 4
02

Whether the High Court rightly exercised its discretion in refusing to strike out the suit

Holding

The Court affirmed the exercise of discretion, applying the settled principle that striking out is reserved for the clearest of cases and that a suit with a semblance of a cause of action should proceed to trial

Reasoning

Relying on the classic statement of Madan JA in D.T. Dobie v Muchina and Halsbury's Laws, the Court held that a pleading should not be struck out if merely demurrable, and that summary dismissal is justified only where the suit is hopeless, plainly and obviously discloses no reasonable cause of action and is beyond redemption by amendment. The plaint here disclosed a cause of action, so the judge's discretion was not wrongly exercised.

p. 4
03

Whether matters such as possession of the certificates, the debtor-creditor relationship and defective verifying affidavit could be resolved on a striking-out application

Holding

Such matters could not be determined summarily but only through a full hearing entailing adducing of evidence

Reasoning

The appellant raised arguments outside limitation, including that the plaintiffs still held the certificates and so could not sue in conversion, and defects in the verifying affidavit and misjoinder. The learned judge had held these were matters for trial, and the plaintiffs supported that position before the Court of Appeal, which endorsed the view that such questions require evidence and cannot dispose of the suit summarily.

p. 3

Legal principles established

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  • A pleading will not be struck out merely because it is demurrable; summary dismissal is reserved for suits that are hopeless, plainly and obviously disclosing no reasonable cause of action and incurable by amendment
  • A suit showing even a semblance of a cause of action, curable by amendment, should be allowed to go to trial rather than summarily dismissed
  • In an application to strike out for lack of reasonable cause of action, the court looks only at the pleadings and must not deal with the merits, which are the province of the trial judge

Court orders

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  1. 1.Appeal against the 22nd respondent (Panachand J. Shah) marked as abated under rule 99 of the Court of Appeal Rules
  2. 2.Appeal dismissed with costs

Authorities

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Legislation

  • Limitation of Actions Actsection 4(2)
  • Limitation of Actions Actsection 26(a) and (b)
  • Civil Procedure RulesOrder VI rule 13(1)(a) and (d)
  • Court of Appeal Rulesrule 99

Cases cited (9)

  • Lloyds Bank Ltd v. The Chartered Bank of India, Australia and China
    [1929] 1 KB 40
  • Paragon Finance v. DB Thakerar & Co (A Firm)
    [1998] EWCA civ 1249
  • Law Society v. Sephton & Co.
    [2004] EWCA civ 1627
  • Arcadia Group Brands Ltd & Others v. Visa Inc. & Others
    [2014] EWHC 3561 (Comm)
  • Mukisa Bisquit Manufacturing Co. Ltd v. West End Distributors
    [1969] EA 696
  • Gibbs v. Guild
    [1964] 1 All ER 699
  • D.T. Dobie & Co. (Kenya) Ltd v Muchina
    [1982] KLR 1
  • Crescent Construction Co Ltd v. Delphis Bank Ltd
    [2007] eKLR
  • D.T. Dobie Company (K) Ltd v Muchina & Another
    [1980] eKLR
On appeal from
High Court of Kenya at Nairobi
HCCC No. 728 of 2003
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Court of Appeal Rules (appeal from ruling and order of Emukule, J. in HCCC No. 728 of 2003); appeal against a discretionary decision under Order VI rule 13(1)(a) and (d) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Dipak P. Shah v Sudhir K. Shah & 28 others [2018] KECA 114 (KLR)", Case Analysis (2018). Civil Appeal No. 149 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/114/eng@2018-10-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.