Stavroula Georgopoulou (Formerly Stavroula Rousalis) v Denancy Investments Ltd & 8 others [2021] KEELC 4436 (KLR)

The court traced the applicants' prior motions of 2017 which were withdrawn, the application of 21st September 2018 which was dismissed for non-attendance on 31st January 2019, and the undated-reinstated application of 7th February 2019 which was never prosecuted after Angote J recused himself. Following Stephen Okero Oyugi v Law Society of Kenya, the proper course was to prosecute the reinstatement application or seek review or appeal. The court nonetheless went on to determine the merits to advance the overriding objective.

Section 88 of the Evidence Act adopts documents admissible in English courts. Whereas the old English position (relied on in Peeraj) presumed only commonwealth documents, rules 32.17 and 32.20 of the England CPR 1998 allow affidavits made outside the jurisdiction per the law of the place of making, and notarial acts are received without further proof unless the contrary is proved. The affidavits bore a translated notary seal and nothing showed they contravened Greek law.

The court examined each affidavit: the one of 11th September 2018 supported joinder/amendment, matters within the advocate's competence; the 7th December 2018 affidavit was actually sworn by the Respondent herself; the 19th February 2019 affidavit opposed recusal, reinstatement and transfer - issues of law; and the 31st January 2020 affidavit merely referenced the Respondent's earlier affidavit and the record. Rule 9 of the Advocates Practice Rules was not offended on these facts.

Divorce documents showed she is the daughter of Antonios and Eleni Georgopoulos, explaining the change from Rousalis to Georgopoulou. The man in the 1993 newspaper photo was explained as her step-son; the court found it curious that the alleged real Stavroula Rousalis, who supposedly donated a power of attorney to the 2nd applicant, had never sworn an affidavit for the applicants. The DCI/Immigration correspondence did not show her passport was ever verified, and her passport showed entry in 1994.

In Machakos ELC No. 60 of 2015 the plaintiff is Labh Singh Harman Singh Ltd and the 5th defendant is described as a male Swiss national, whereas here the plaintiff is a female resident of Athens. The earlier suit concerned LR 12715/595 only, while this suit concerns LR 12715/595 and 12715/632. The matters in issue were therefore not directly and substantially the same.

The court had earlier found the Respondent had a prima facie case with probability of success. No affidavit of means analysis or credible evidence showed she could not pay costs, and allegations of unknown assets, bank accounts or business were mere allegations. Applying Abbeybarn and Moses Wachira, residence outside the jurisdiction is only one factor, and discretion must be exercised judicially.