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ELCPartially Allowed· [2019] KEELC 3527 (KLR)

Shilpan Patel v Devika Shaileshkumar Patel & 3 others [2019] KEELC 3527 (KLR)

Environment and Land Court of Kenya (not expressly named in the excerpt; a single-judge first-instance civil suit heard in Nairobi)
2 May 2019
4,043 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The court disposed of three interlocutory matters in a family land dispute arising from a property in Spring Valley, LR No. 15005/33 (IR 184167), formerly 15005/5 (IR 68597/1). The plaintiff, Shilpan Patel, sued as executor of the will of the late Bhanabhai Madhusudan Patel, which directed the suit property be shared equally among six grandchildren. The 1st–3rd defendants alleged the deceased had transferred the property to the 1st defendant by a transfer dated 18th April 2011, which the plaintiff contended was a forgery. First, the defendants' preliminary objection challenging the admissibility of affidavits sworn in the USA was dismissed, the court finding the affidavits were properly notarised and admissible. Second, the plaintiff's notice of motion dated 22nd November 2017 seeking interlocutory injunctions was allowed. Applying Giella vs Cassman Brown, the court found the plaintiff, as executor with a duty to execute the deceased's wishes, had established a prima facie case with a probability of success; that the beneficiaries would suffer irreparable loss not compensable in damages if the property were transferred; and that the balance of convenience favoured preserving the property, the defendants being in occupation and suffering no prejudice. Interlocutory injunctions were issued restraining the 1st–3rd defendants from dealing with the property and restraining the 4th defendant (the Registrar) from registering any transactions over it, pending the hearing and determination of the suit. Third, the defendants' notice of motion dated 3rd July 2018 seeking security for costs of Kshs. 20,000,000 and an order that Hamilton Harrison & Mathews Advocates cease acting for the plaintiff was dismissed. Security for costs was discretionary and the plaintiff, suing as executor with no personal interest, would pay any costs from the estate; no conflict of interest on the firm's part was demonstrated. Costs of the applications were ordered to abide the outcome of the main suit.

Key legal issues

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01

Admissibility of affidavits sworn in the USA

Holding

The preliminary objection failed; affidavits notarised in the USA before a notary public with stamp and seal are admissible.

Reasoning

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.

p. 4
02

Whether the plaintiff met the Giella vs Cassman Brown threshold for an interlocutory injunction

Holding

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.

Reasoning

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.

p. 4
03

Whether security for costs should be ordered against the plaintiff

Holding

No. The discretion was not exercised in favour of the defendants; the application was an attempt to hinder the executor.

Reasoning

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.

p. 5
04

Whether the firm of Hamilton Harrison & Mathews should cease acting for the plaintiff

Holding

No. No sufficient evidence of a conflict of interest was demonstrated.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs to abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2 and 20
  • Civil Procedure Rules 2010Order 26 rules 1 and 4
  • Civil Procedure RulesOrder 4 rule (1)(2)
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A and 63(c) and (e)
  • Law of Succession ActSection 82(a)
  • Advocates' (Practice) RulesRule 9
  • Evidence Act, Cap 80Section 88 (as cited in the quoted authority)

Cases cited (24)

  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR / [2003] KLR 125
  • Paul Gitanga Wanjau vs Gathuthi Tea Factory Co. Ltd & 2 Others
    [2016] eKLR
  • British American Investments Co (K) Ltd vs Njomaitha Investments Ltd & Another
    [2014] eKLR
  • Kenya Commercial Bank Ltd vs Mukeshkumar Kantilal Patel & Another
    [2015] eKLR
  • Microsoft Corporation vs Mitsumi Computer Garage Ltd & Another
    [2001] KLR 470
  • Pastificio Lucio Garofalo SPA vs Security & Fire Equipment Co. & Another
    [2001] eKLR
  • James Francis Kariuki & Another vs United Insurance Co. Ltd
    HCCC 1450 of 2000
  • Pius Kipchirchir Koga vs Frank Kimeli Tenai
    [2018] eKLR
  • Shah vs Shah
    [1982] KLR 95
  • Alice Aloo Betty Were Thompson vs Said Mohamed Said & 2 others
    [2014] eKLR
  • Dorothy Seyanoi Moschion vs Andrew Stuart & Another
    [2014] eKLR
  • Naftali Ruthi Kinyua vs Patrick Thuita Gachure & Another
    [2015] eKLR
  • Central Kenya Ltd vs Trust Bank Limited & 4 Others
    [1996] Eklr
  • American Cyanamid vs Ethicon Limited
    [1975] AC 396
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kipseba Chumba vs Chairman Board of Management Kaberisus Primary School
    [2017] eKLR
  • Mama Ngina Kenyatta & Another vs Mahira Housing Company
    [2005] eKLR
  • Partirck Ngeta Kimanzi vs Marcus Mutua Muluvi & 2 others
    [2013] eKLR
  • Moses Wachira vs Niels Bruel & 2 others
    [2015] eKLR
  • King Woolen Mills Ltd & Another vs Kaplan & Straton Advocates
    [1993] ekLR
  • Peeray General Trading & Contracting Company Limited Kenya & Another vs Mumias Sugar Company Limited
    [2016] Eklr
  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another
    [1990] KLR 557
  • Delphis Bank Limited vs Chart & 6 Others
    [2005] eKLR
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

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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, "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.