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ELCPartially AllowedELC Cause No 721 of 2017· [2021] KEELC 2866 (KLR)

Shilpan Patel (suing as the Executor of Nataverbhai Prabhudas Vallabhai Patel) v Devika Shaileshkumar Patel & 3 others [2021] KEELC 2866 (KLR)

Environment and Land Court
17 June 2021
2,505 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered defendants to produce the original land transfer for inspection or lose their defences, and refused their late bid to pause the case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (L. Komingoi J) determined two interlocutory applications in ELC Cause No 721 of 2017, a suit in which the plaintiff, executor of the estate of the late Nataverbhai Probhudas Vallabhai Patel, challenges a transfer of the suit property executed by the deceased in favour of the 1st defendant as trustee for the 2nd and 3rd defendants. The first application, dated 20th January 2020, sought an order that the defendants produce the original transfer, registered on 23rd June 2014, for inspection, failing which their defences be struck out. The second, dated 2nd December 2020 by the 2nd defendant, sought a stay of the suit pending determination of Milimani High Court Succession Cause No 3097 of 2014, in which the validity of the will is challenged. The court found that the transfer was a crucial instrument, that the plaintiff had served unanswered letters and a notice to produce, and that no defendant swore an affidavit denying possession of the document. Inspection was therefore ordered, with the defences to stand struck out if the order was not complied with within 28 days. The stay application failed: it came too late, was a delaying tactic, and the defendants did not show that the suit was frivolous or that they would suffer prejudice. The inspection application was allowed with costs in the cause; the stay application was dismissed with costs.

Key legal issues

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01

Whether the original transfer should be produced for inspection

Holding

The inspection application was allowed; the instrument is crucial to the proceedings and the defendants gave no justifiable reason to deny inspection.

Reasoning

The plaintiff pleaded the transfer, served letters and a notice to produce which the defendants ignored, and the defendants' own defence admits the deceased executed the transfer. Under Section 22(a) of the Civil Procedure Act and Order 11 rule 3(2)(d), the court may order production and inspection. No defendant swore an affidavit denying possession, so the requirement of possession/power was satisfied.

p. 4
02

Whether the suit should be stayed pending determination of the succession cause challenging the will

Holding

The stay application was dismissed; it was brought too late and was a delaying tactic.

Reasoning

The 2nd defendant attached a 2018 summons for revocation of probate but showed no steps taken to prosecute it. The suit was filed in 2017 and the 1st defendant has participated throughout. Stay is exercised sparingly and only where proceedings are frivolous, vexatious or manifestly groundless; the defendants failed to show prejudice.

p. 4

Legal principles established

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  • A party seeking inspection must show the document is in the possession or power of the other party; where a party has pleaded that it executed the instrument and has not sworn that it lacks possession, inspection will be ordered.
  • Stay of proceedings is a grave interruption of a party's right to litigate on the merits and should be exercised sparingly and only in exceptional cases.

Court orders

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  1. 1.The defendants do produce to the plaintiff for inspection the original Transfer dated 6th June 2011 and registered on 23rd June 2014 allegedly executed by the deceased conveying the suit property to the 1st defendant as trustee for the 2nd and 3rd defendants within twenty eight (28) days from the date of the ruling.
  2. 2.In default of production, the defences by the 1st–3rd defendants and the 4th defendant shall stand struck out with costs.
  3. 3.Costs of the plaintiff's application to be in the cause.
  4. 4.The defendants' Notice of Motion dated 2nd December 2020 (stay of proceedings) is dismissed with costs.

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A, 6, 22(a), 63(e)
  • Civil Procedure Rules, 2010Order 11 Rule 3, Order 51 Rule 1
  • Evidence ActSection 68

Cases cited (10)

  • Garden Estate Ltd vs Gulbano Hussein Jan Mohamed and Others
    ELC 466 of 2008; [2010] eKLR
  • Diamond Concrete Co. vs Patel & Another
    [1969] EA 518
  • NSSF Board of Trustees vs Dr. Sally Kosgei & Another
    [2005] eKLR
  • Wendy Martin vs Il Ngwese Company Ltd & 2 Others
    [2005] eKLR
  • Amos Weru Murigu vs British American Tobacco
  • Erastus Ndegwa Wangai & 3 Others vs KLM Royal Dutch Airline & Another
    [2020] eKLR
  • Benja Properties Ltd vs Savings and Loans (K) Ltd
    [2005] eKLR
  • Muturi Investments Ltd vs NBK
    [2006] eKLR
  • Nguruman Ltd vs Jan Bonde Nielsen & Another
    [2017] eKLR
  • re the Estate of Charles Ndegwa Kiragu alias Ndegwa Kiragu (Deceased)
    [2016] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A, 22(a) and 63(e) of the Civil Procedure Act, Cap 21, and Order 11 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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 (suing as the Executor of Nataverbhai Prabhudas Vallabhai Patel) v Devika Shaileshkumar Patel & 3 others [2021] KEELC 2866 (KLR)", Case Analysis (2021). ELC Cause No 721 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2866/eng@2021-06-17

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