Patel (Suing as the Executor of the Estate of Natverbhai Prabhudas Vallabhai Patel) v Patel & 3 others
The bottom line
#A Kenyan court confirmed that an executor named in a foreign will can sue in Kenya, and refused to strike out the case at the last minute.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff had locus standi as executor under a will drawn in India
The plaintiff had locus standi; the grant of probate and certificate of confirmation had not been revoked, and the Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions makes a foreign will valid in Kenya
The court noted the plaintiff held a Grant of Probate issued on 24/03/2015 and a certificate of confirmation dated 22/02/2016, neither revoked nor set aside. Article 1 of the Convention validates a testamentary disposition if its form complies with the law of the place where made or of the testator's nationality. Kenya's ratification of the Convention under Article 2(5) and (6) of the Constitution makes the Indian will applicable in Kenya, so the plaintiff is an executor under Kenyan law.
Whether the suit should be struck out as an abuse of process or for want of capacity
Striking out was refused; the power is exercised sparingly and the suit had already been heard with judgment reserved
The court applied D.T. Dobie v Muchina as restated in Alumark Investments, holding that striking out is drastic and should not be granted unless a suit is plainly and obviously beyond redemption. Since the main suit had been heard and judgment was reserved for 21/03/2023, striking out would render the evidence heard in vain. The court also noted the locus standi objection was raised belatedly, after the hearing had concluded.
Whether the belated raising of the locus standi objection after the hearing should bar the application
The court questioned why the issue was raised at such a late stage, after the main suit had been heard
The court observed that while lack of locus standi can dispose of a matter preliminarily, in this case the main suit had already been heard and judgment was awaited. The defendants ought to have raised the objection before the main suit was heard and concluded. This timing weighed against granting the drastic remedy of striking out.
Legal principles established
#- Lack of locus standi goes to the root of a suit and can dispose of a matter preliminarily
- The power to strike out pleadings must be exercised sparingly and cautiously
- An executor or administrator is the only person authorized to litigate on behalf of a probate estate
Court orders
#- 1.The Notice of Motion dated 7/12/2022 is dismissed
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act; application under Order 2 Rule 15(1)(c), (d) and Order 7 Rule 6 Civil Procedure Rules, Sections 1A, 1B, 3 and 63(e) Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sirya v Chandugu & 2 others (Environment & Land Case E132 of 2024) [2025] KEELC 3548 (KLR)[2025] KEELC 3548 (KLR)30 Apr 2025
- Sirya v Chandugu & 2 others (Environment & Land Case E132 of 2024) [2025] KEELC 3548 (KLR)[2025] KEELC 3548 (KLR)30 Apr 2025applied
Cite this brief
#Cite this brief
Caselaw, "Patel (Suing as the Executor of the Estate of Natverbhai Prabhudas Vallabhai Patel) v Patel & 3 others", Case Analysis (2023). Environment & Land Case 721 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16116/eng@2023-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.