Anthony Raymond Cordeiro, Elaine Desa Cordiero & Technology Today Ltd v Adrian Noel Carvalho, Arlet Dominica Caevalho, I&M Bank Limited, Jayantlal Jivaj Mepal Shah, Mansukhlal Jivaj Mepal Shah & Dilipkumar Jivaj Mepal Shah [2018] KEHC 10100 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL SUIT NO. 627 OF 2012

ANTHONY RAYMOND CORDEIRO...................1ST PLAINTIFF

ELAINE DESA CORDIERO..................................2ND PLAINTIFF

TECHNOLOGY TODAY LTD...............................3RD PLAINTIFF

-VERSUS -

ADRIAN NOEL CARVALHO............................1ST DEFENDANT

ARLET DOMINICA CAEVALHO...................2ND DEFENDANT

I&M BANK LIMITED.......................................3RD DEFENDANT

JAYANTLAL JIVAJ MEPAL SHAH................4TH DEFENDANT

MANSUKHLAL JIVAJ MEPAL SHAH...........5TH DEFENDANT

DILIPKUMAR JIVAJ MEPAL SHAH.............6TH DEFENDANT

RULING

ISSUES TO BE DETERMINED BY THE TRIAL

COURT AS DRAWN UP BY THE COURT

The parties to these proceedings have been unable to agree on the issues which arise from the pleadings.  Therefore, before the trial can commence, and in order to enable the parties appreciate the scope of matters about which they need to lead evidence, it has become necessary for the Court to settle the List of Issues.

Here below are the said Issues:

1. Did the 1st and 2nd defendants fraudulently procure themselves to be registered as the holders of 1750 and 23, 249 shares, respectively, in the 3rd plaintiff?

2. Did the registration of the 1st and 2nd defendants as the majority shareholders in the 3rd plaintiff, impose fiduciary duties upon them?

3. Was the sale and transfer of LR NO. 1870/vi/145, by the 1st and 2nd defendants, to the 4th, 5th and 6th defendants void, for the lack of legal capacity on the part of the said 1st and 2nd defendants?

4.  Should the 4th, 5th and 6th defendants be compelled to deliver up to the Registrar of Titles, the Transfer and Certificate of Title in L.R NO. 1870/vi/145, for cancellation of the transfer which was in favour of those defendants?

5. Are the 4th, 5th and 6th defendants liable to pay mesne profits to the 3rd plaintiff, with effect from 19th October 2011?

6. Are the 4th, 5th and 6th defendants liable to compensate the 3rd plaintiff by way of General Damages? If so, what is the quantum of the said damages?

7. If mesne profits or damages are awarded, should they attract interest?  If so, at what rates and from what dates?

8. Did the 3rd defendant knowingly, (or at all), take part in the alleged unlawful sale of L.R NO. 1870/vi/145?

If so, is the 3rd defendant liable to compensate the plaintiffs or any of them?

9. Who should pay the costs of the suit, and to whom?

DATED, SIGNED and DELIVERED at NAIROBI, this 4th day of June 2018.

FRED A. OCHIENG’

J U D G E