[1983] KEHC 9 (KLR)
The court found that the plaintiff failed to establish, on a balance of probabilities, that a contract was entered into in Kenya. The evidence presented did not specify where, when, or how the agreement was made in Kenya, nor did it clarify the terms of the alleged loan. Furthermore, the court held that even if a...
Source-derived case information.
- Citation
- [1983] KEHC 9 (KLR)
- Parties
- Plaintiff: Gordhanbhai G Patel; Defendant: Ravinder Singh s/o Bijay Singh Naul
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1214 of 1970
- Procedural Posture
- Civil Case / Judgment
- Outcome
- suit dismissed with costs
- Legal Topics
- Jurisdiction of Kenyan Courts, Enforceability of Foreign Contracts, Exchange Control Regulations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gordhanbhai G Patel
Plaintiff
Ravinder Singh s/o Bijay Singh Naul
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the Kenyan court has jurisdiction over a contract allegedly entered into in India between two Kenyan residents.
- 2 Whether there was sufficient evidence to establish the existence of a contract between the plaintiff and the defendant in Kenya.
- 3 Whether the transaction is unenforceable due to illegality under the Exchange Control Act.
Ratio Decidendi
The court found that the plaintiff failed to establish, on a balance of probabilities, that a contract was entered into in Kenya. The evidence presented did not specify where, when, or how the agreement was made in Kenya, nor did it clarify the terms of the alleged loan. Furthermore, the court held that even if a contract existed, it was entered into in India and involved the advance of Kenyan money in Indian currency between two Kenyan residents, thereby contravening section 3(1) of the Exchange Control Act. As such, the transaction was tainted with illegality and was unenforceable in law. The Kenyan court therefore lacked jurisdiction, and the suit could not be entertained.
Court Disposition
suit dismissed with costs
Orders
- The suit is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT, AT NAIROBI
CIVIL CASE NO. 1214 OF 1970
GORDHANBHAI G PATEL .………………………………………..PLAINTIFF
VERSUS
RAVINDER SINGH S/O BIJAY SINGH NAUL…………………DEFENDANT
JUDGMENT
The plaintiff filed a suit against the defendant to claim from him a sum of Kshs.38,000 being equivalent to 40,000 Indian Rupee which the plaintiff alleged he had advanced to the defendant during 1966. According to him he had met the defendant in December, 1966 and that the defendant had asked him, the plaintiff, for some money to pay for the property he, the defendant, had purchased in India. That both were then going to India. While in India, the plaintiff lent the defendant the amount in dispute on 29th December, 1966. The defendant acknowledged receipt of the money in ex.3 . He has never refunded it either in India or Kenya since then. So the case was brought to court.
The defendant did not appear and no evidence was led on the defence side although Mr Kapila appeared for him. Submissions were then advanced for and against the claim.
This case was filed in Kenya mainly because as the plaintiff prior, the agreement was entered into in Kenya (see section 15) explanation 3(1) of the Civil Procedure Act. But apart from the evidence of the plaintiff, there was no other evidence to support that while the plaintiff was going to India he met the defendant who asked him for some money in the form of a loan. The plaintiff did not tell the court where in Kenya he met the defendant, what date, what time and what actual discussions took place.
What he only told the court was that
“the defendant approached me while I was going to India. He told me he had purchased property in India. He wanted some money to make payments for the transactions. I told him I did not have much money but could help him to a certain extent”.
Did these words constitute a contract between the plaintiff and the defendant, if they were uttered at all? How much money, for example, did the defendant want to borrow from the plaintiff? What were the terms of that advance, say as regards repayment? Plaintiff’s evidence, I am afraid, did not establish on a balance of probabilities that there was any contract entered into between the plaintiff and the defendant in Kenya.
The plaintiff then proceeded to India and the defendant followed him there. Then while there he advanced the defendant Kshs.38,000 an equivalent of Indian Rupees 40,000 in Indian currency which the defendant acknowledged receipt of in exh.3. The plaintiff had used a number of cheques in exh. 1 showing his savings in India in the 1950s. Exhibit 2 is a letter showing a number of withdrawals, all on 29th December, 1966, but not all were withdrawn by the plaintiff.
Some of the money was withdrawn by a Mrs Lalitaben some by Nathabhai, and some by a Mrs Kamlaben. But the plaintiff was infact telling this court that he withdrew 45,000 – Indian Rupees and advanced the defendant Kshs.40,000 rupees keeping a balance of 5,000 rupees for himself. Was there any need for such money to be withdrawn by different people when it was only the plaintiff who needed it to lend to the defendant? The plaintiff did not explain this.
And if, as observed earlier, this contract was not entered into in Kenya, then no Kenyan court has nay jurisdiction to entertain in any event, this transaction seems to be tainted with illegality, hence unenforceable in law, as two Kenya residents entered into an agreement to its advance of Kenya money in Indian currency in Indian country to section 3(1) of the Exchange Control Act.
This suit is dismissed with costs.
Dated and Delivered at Nairobi on this 23rd day of September, 1983
D.K.S AGANYANYA
………………..
JUDGE