[2022] KEHC 1231 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL NO. 12 OF 2022

AWTANI ASHOK BHAWANDAS(acting in his personal capacity, managerand legal representative of

NEELKAMALINTERNATIONAL TRADERS)........................................................................PLAINTIFF

-VERSUS-

MAYA SURESH LAKHIANI

HARISH SURESH LAKHIANI

HITESH SURESH LAKHIANI

MAMTA SURESH LAKHIANI (sued as the legal representatives ofTHE ESTATE OF

SURESHREWACHAND LAKHIANI.....................................................................................DEFENDANTS

-AND-

GLOBAL APARRELS KENYA (EPZ) LIMITED.....................................................INTERESTED PARTY

RULING

[1]The plaintiff herein, Awtani Ashok Bhawandas, filed this suit on 10th March 2022 against the defendants basically for enforcement of the judgment delivered in Dubai Court in Suit No. 2092/22018 Commercial/Plenary. Execution is sought by way of attachment and auction of some 250,000 ordinary shares and 750,000 preference shares in Global Apparels Kenya (EPZ) Limited held in the name of the Estate of the deceased.

[2] Concomitantly, the plaintiff filed the Notice of Motion dated 7th March 2022, seeking a temporary injunction restraining the defendants and/or the interested party, their agents, servants and/or employees from alienating and/or transferring the 250,000 ordinary shares and 750,000 preference shares registered in the name of the Estate of Suresh Rewachand Lakhiani (Deceased) held in the interested party, pending the hearing and determination of the application as well as the main suit. The plaintiff also prayed for leave to serve the application and other court process on the defendants out of jurisdiction in Dubai in the United Arab Emirates.

[3] It is therefore imperative that before any orders can be issued in respect of that application, jurisdiction be assumed over the defendants. This point was aptly made by Hon. Aburili, J. in Law Society of Kenya vs Martin Day & 3 Others[2015] eKLR thus:

“It is not sufficient for a plaintiff to institute suit against a party. That party must be invited to submit to the authority of the court in order for the legal process of setting down the suit for trial to commence. The circumstances of this case are such that Summons must be served in the manner provided for in the rules to enable the defendants who have no registered office or business in Kenya submits to the jurisdiction of this court. It therefore follows that their knowledge of the existence of the suit is not sufficient enough to proceed against them. They may be aware of the suit but unless they are prompted by the summons in the manner provided for in the rules, the jurisdiction of this court is not invoked.”

[4]And, inMisnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 others[2019] eKLR, the Court of Appeal explained that:

“The manner in which such jurisdiction is assumed by the court is that firstly, the plaintiff has to seek leave of the court to serve such summons outside the court’s jurisdiction. The purposes of seeking leave is to enable the court to weigh the reasons adduced by the plaintiff and determine whether a proper case has been made out for service of summons outside its jurisdiction. The principles which govern the court in determining whether or not to grant leave are set out, though not exhaustively, under Order 5 Rule 25 which reads:

“Every application for leave to serve such summons or notice on a defendant out of Kenya shall be supported by affidavit or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a Commonwealth citizen or a British protected person or not, and the grounds on which the application is made; and no such leave shall be granted unless it is made sufficiently to appear to the court that the case is a proper one for service out of Kenya under this Order.

[5] In addition to leave, the plaintiff must first serve Summons to Enter Appearance on the defendants in the prescribed manner and avail proof of such service before seeking the intervention of the Court in any manner. In Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 others (supra) the Court of Appeal proceeded to hold that:

“...upon such leave being granted, the summons has to be served upon such a defendant. It is only upon such service of the summons that a court assumes jurisdiction over a foreign defendant and not a moment sooner. This Court in Raytheon Aircraft Credit Corporation & Another vs Air Al-Faraj Limited (supra) appreciated as much by stating that –

“The High Court assumes jurisdiction over persons outside Kenya by giving leave, on application by a plaintiff to serve summons or notice of summons, as the case may be, outside the country …. after such summons are served in accordance with the machinery stipulated therein.”

[6] Thus, this ruling is limited to Prayer (2) in the Notice of Motion dated 7th March 2022, by which the plaintiff has asked for leave to serve the application and other court process on the defendants out of jurisdiction. To that end, I have perused the Plaint and the documents filed therewith as well as the instant application, the Supporting Affidavit and its annexures. I am satisfied that the plaintiff has a good cause of action, and has sufficiently shown in what place or country the defendants are to be found. It has also been demonstrated that the suit involves shares in a Kenyan company. Accordingly, I find merit in Prayer (2) of the application and it is hereby allowed. It is consequently hereby ordered that:

[a]Leave be and is hereby granted to the plaintiff to serve Summons to Enter Appearance, along with other process, including the Plaint and the instant application on the defendants outside Kenya in Dubai, the United Arab Emirates.

[b] That the Summons to Enter Appearance along with other process, including the Plaint and the documents filed therewith and the Notice of Motion dated 7th March 2022 be sent to the defendants’ last known physical address by means of an internationally registered and recognized courier service provider pursuant to Order 5 Rule 22A of the Civil Procedure Rules.

[c] In addition, soft copies of the aforementioned documents be served via email in the manner stipulated in Order 5 Rule 22B of the Civil Procedure Rules.

[d] Such service to be effected within 21 days from the date hereof.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF MARCH 2022.

.......................

OLGA SEWE

JUDGE