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ELCDismissedEnvironment & Land Case 721 of 2017· [2023] KEELC 16116 (KLR)

Patel (Suing as the Executor of the Estate of Natverbhai Prabhudas Vallabhai Patel) v Patel & 3 others

Environment and Land Court
28 February 2023
2,880 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Mogeni J) determined a Notice of Motion dated 7/12/2022 by the 1st to 3rd defendants seeking, in the alternative, a stay of the suit or its striking out in its entirety on the ground that the plaintiff lacked locus standi ab initio. The defendants contended that the will empowering the plaintiff, Shilpan Patel, as executor of the estate of Natverbhai Prabhudas Vallabhai Patel was prepared in India and was alien to Kenya under Article 2(5) and (6) of the Constitution as read with the Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. The plaintiff opposed, relying on a Grant of Probate issued on 24/03/2015 and a certificate of confirmation dated 22/02/2016, neither of which had been revoked. The court framed two issues: the plaintiff's locus standi and entitlement to the drastic striking-out orders. It held that the plaintiff, as executor under a confirmed grant, had locus standi, and that the Convention's incorporation into Kenyan law made the Indian will applicable in Kenya. Applying D.T. Dobie v Muchina, the court held that striking out is a drastic remedy to be exercised sparingly, and that it would be unsafe to strike out a suit that had already been heard with judgment reserved for 21/03/2023. The court also questioned the belated raising of the locus standi objection after the hearing. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the plaintiff had locus standi as executor under a will drawn in India

Holding

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

Reasoning

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.

p. 5
02

Whether the suit should be struck out as an abuse of process or for want of capacity

Holding

Striking out was refused; the power is exercised sparingly and the suit had already been heard with judgment reserved

Reasoning

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.

p. 6
03

Whether the belated raising of the locus standi objection after the hearing should bar the application

Holding

The court questioned why the issue was raised at such a late stage, after the main suit had been heard

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 7/12/2022 is dismissed
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(c) and (d)
  • Civil Procedure RulesOrder 7 Rule 6
  • Civil Procedure ActSections 1A, 1B, 3 and 63(e)
  • Constitution of KenyaArticles 2(5) and (6), 25(c), 47, 48, 50(1), 159(2)
  • Convention on the Conflicts of Laws Relating to the Form of Testamentary DispositionsArticles 1 and 2

Cases cited (7)

  • Alfred Njau & others v City Council of Nairobi
    (1982) KAR 229

    Definition of locus standi as the right to appear and be heard in court

  • Priscilla Jesang Koech v Rebecca Koech & 3 others
    [2018] eKLR

    Lack of capacity goes to the root of the case; locus standi can dispose of a matter preliminarily

  • Law Society of Kenya v Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000

    Locus standi signifies a right to be heard; sufficiency of interest to sustain standing to sue

  • Quick Enterprises Ltd v Kenya Railways Corporation
    Kisumu High Court Civil Case No. 22 of 1999

    Preliminary points should be capable of disposing of a matter without ascertaining facts beyond the pleadings

  • Martha Ndiro Odero (suing as the administrator and personal representative of the estate of Willy Patrick Ochieng Ndiro (Deceased) v Come Cons Africa Limited
    (2015) eKLR

    Upheld locus standi of a personal representative to file suit to claim the deceased's properties

  • Alumark Investments Limited v Tom Otieno Anyango & 4 Others
    [2018] eKLR

    Power to strike out pleadings to be exercised sparingly and cautiously

  • D.T. Dobie & Company (Kenya) Ltd v Muchina
    (1982) KLR 1

    No suit ought to be summarily dismissed unless plainly and obviously beyond redemption and incurable by amendment

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.