Shilpan Patel v Devika Shaileshkumar Patel & 3 others [2019] KEELC 3527 (KLR)
The bottom line
#A Kenyan court froze dealings over a contested Spring Valley property and ruled that notarised foreign affidavits are valid evidence in Kenyan courts.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of affidavits sworn in the USA
The preliminary objection failed; affidavits notarised in the USA before a notary public with stamp and seal are admissible.
The court examined the affidavits and found they were sworn before a notary public bearing a stamp and seal. Relying on Peeray General Trading & Contracting Company Limited Kenya & Another vs Mumias Sugar Company Limited, which applied section 88 of the Evidence Act, the court held documents notarised abroad in that manner are properly on record. The preliminary objection was dismissed.
Whether the plaintiff met the Giella vs Cassman Brown threshold for an interlocutory injunction
Yes. As executor, the plaintiff established a prima facie case with probability of success, irreparable harm, and the balance of convenience favoured granting the injunction.
The property initially belonged to the deceased who left a will dated 6th July 2013 directing it be shared equally among six grandchildren. The plaintiff, as executor with a duty to execute the deceased's wishes, established a prima facie case. If the property were transferred or dealt with, the beneficiaries would suffer irreparable loss not compensable in damages. The 1st–3rd defendants, being in occupation, would suffer no prejudice.
Whether security for costs should be ordered against the plaintiff
No. The discretion was not exercised in favour of the defendants; the application was an attempt to hinder the executor.
Order 26 rule 1 makes security for costs discretionary. Authorities (Mama Ngina Kenyatta; Moses Wachira) show residence abroad is a factor but not decisive. The plaintiff, suing as executor with no personal interest, brought the suit to collect and preserve estate assets, and any costs would be paid from the estate. The application lacked merit.
Whether the firm of Hamilton Harrison & Mathews should cease acting for the plaintiff
No. No sufficient evidence of a conflict of interest was demonstrated.
Lorna Mainnah, a partner, swore an affidavit stating the firm represented the vendor in the sale, while the deceased was represented by M/S Oriaro & Co. Advocates. Applying Delphis Bank Limited vs Chart, the test is whether real mischief or real prejudice will result. No such mischief or prejudice was shown, so the firm could continue acting.
Legal principles established
#- An applicant for an interlocutory injunction must establish a prima facie case with a probability of success, demonstrate irreparable injury not compensable by damages, and if in doubt, the balance of convenience tilts in his favour (Giella vs Cassman Brown).
- Affidavits notarised abroad before a notary public, with stamp and seal, are admissible in Kenyan courts.
- An order for security for costs is discretionary; residence outside the jurisdiction is a factor but not decisive.
- There is no general rule that an advocate cannot act for one party in a matter and then act for the opposite party in subsequent litigation; the test is whether real mischief or real prejudice will result.
- An executor has a duty to execute the wishes of the deceased and may sue to preserve estate assets; such an application for security of costs may amount to hindering the executor's duties.
Court orders
#- 1.An interlocutory injunction restraining the 1st–3rd defendants, whether by themselves, employees, servants and/or agents, from transferring, leasing, subletting and/or otherwise dealing with LR No. 15005/33 (IR 184167) formerly known as 15005/5 (I.R 68597/1), Spring Valley, or otherwise interfering with it, pending the hearing and determination of the suit.
- 2.An interlocutory injunction restraining the 4th defendant, whether by themselves, employees, servants and/or agents, from registering any transactions over the suit property, LR No. 15005/33 (IR 184167) formerly known as LR No. 15005/5 (IR 68597/1), Spring Valley.
- 3.Costs to abide the outcome of the main suit.
- Jurisdiction invoked
- Order 40 rules 1, 2 and 20 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act (Cap 21); inherent powers of the court; Order 26 rules 1 and 4 of the Civil Procedure Rules 2010; Rule 9 of the Advocates' (Practice) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shilpan Patel v Devika Shaileshkumar Patel & 3 others [2019] KEELC 3527 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3527/eng@2019-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.