Shrikesh v Elesh (Miscellaneous Application 121 of 2022) [2024] UGHCFD 65 (9 September 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION)

# MISCELLANOUS APPLICATION NO. 121 OF 2022 (ARISING FROM HCCS NO. 416 OF 2022)

### SHRIKESH CHANDRAKANT GHEEWALA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

### ELESH KUMAR CHANDRA GHEEWALA :::::::::::::::::::::::::::::::::::

## Before: Hon. Lady Justice Dr. Christine A. Echookit

#### **RULING:**

#### **BACKGROUND:**

This application is brought by way of Chamber Summons under Section 98 of the Civil Procedure Act and Order 9 rule 3(2) of the Civil Procedure Rules for orders that; the court has no jurisdiction to hear HCCS No. 416 of 2022; HCCS No. 416 of 2022 is barred by law and should be dismissed; and costs of the application be provided for.

The application is supported by the affidavit of Shrikesh Chandrakant Gheewala who is the Applicant with grounds briefly that:

- a) The late Chandrakant Shamjibhau Gheewala died testate on the 26<sup>th</sup> day of February 1984 in Kenya where he was domiciled: - b) That Probate in respect of the deceased's estate was granted to Mukta Chandrakant Gheeewala by the High Court of Kenya; - c) That the subject matter in HCCS No. 416 of 2022 are shares in Unique Holdings Ltd that allegedly belong to Chandrakant Shamjibhai Gheewala, and are now allegedly part of the estate of the late;

- d) that succession to the movable property of Chandrakant Shamjibhai Gheewala, including the shares the subject matter of HCCS No. 416 of 2022, is regulated by the Law of Kenya where the deceased was domiciled at the time of his death; - e) that any disputes regarding the shares in Unique Holding Ltd which allegedly belong to the estate of Chandrakant Shamjibhai Gheewala must be determined by the High Court of Kenya which made the grant; that Succession Cause No. 264 of 1994 handled by the High Court of Kenya handled several matters in respect of the estate of the Chandrakant Shamjibhai Gheewala; - f) that therefore the High Court of Uganda does not and cannot have jurisdiction to hear and determine HCCS No. 416 of 2022; and - g) that the shares the subject matter of the main suit were transferred to the Applicant in 2011 and as such the Respondent's cause of action is affected by limitation and is accordingly time barred.

### ISSUES FOR THE DETERMINATION OF COURT:

- 1. Whether High Court of Uganda has jurisdiction to hear HCCS No. 416 of 2022 - Whether HCCS No. 416 of 2022 is barred by law and should be dismissed - 3. Whether costs of this application should be provided for

## DETERMINATION OF THE ISSUES BY THIS COURT:

**<u>Issue 1:</u>** Whether High Court of Uganda has jurisdiction to hear HCCS No. 416 of 2022 The jurisdiction of the High Court of Uganda is determined by Article 139 of the Constitution of Uganda and Section 14 of the Judicature Act.

Section 14 of the Civil Procedure Act provides for place of institution of suits. A suit shall be instituted in a court within the local limits whose jurisdiction the cause of action wholly or in part arises (Section 15(c) of the Civil Procedure Act).

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The matter before this court seems to hinge on Succession Cause No. 264 of 1994 in the Milimani Law Courts of the Family Court Division, High Court of Kenya. That matter touched on the distribution of property in respect of the estate of the late Chandrakant Shamiibhau Gheewala. The shares in Unique Holdings Ltd are mentioned in the order of the High Court of Kenya. These same shares are also the subject of HCCS No. 416 of 2022.

It is evident that the High Court of Uganda has no original jurisdiction in respect of this matter as it has already been decided by the Kenyan court. The Uganda High Court can only enforce the orders of the High Court of Kenya by reciprocal arrangement under the Foreign Judgements (Reciprocal Enforcement) Act and Rule 2 of the Foreign Judgements (Reciprocal Enforcement) (General Application) Order, S. I. No. 35 of 2002, unless there are circumstances calling for the setting aside of the said order under section 5 of the Foreign Judgements (Reciprocal Enforcement) Act.

If there is any contestation about the inclusion of the shares in Unique Holding in the estate of the late Chandrakant Shamjibhai Gheewala, the proper approach is not to bring a suit in the Uganda courts but to appeal in the Kenyan courts.

#### Whether HCCS No. 416 of 2022 is barred by law and should be dismissed Issue 2:

The plaint in HCCS No. 416 of 2022 is for orders, inter alia, that 2006 shares in Unique Holdings Ltd belong to the estate of the late Chandrakant Shamjobhai Gheewala and that the 1st Defendant's action of transferring the said shares belonging to the 2<sup>nd</sup> Defendant were done contrary to the Will of the deceased and in fraudulent breach of trust as an executrix.

It was submitted for the Applicant that since the cause of action is based on breach of trust and arose in 2011 and yet HCCS No. 416 of 2022 was filed on the of 7<sup>th</sup> day of October 2022, the action is caught up by limitation (section 19 of the Limitation Act).

I find that since the matter is not rightly before this Court, the issue of limitation does not even need to be discussed.

### **CONCLUSION:**

In the premises, this application is granted in part and I order that;

- a) HCCS No. 416 of 2023 is hereby dismissed; the matter may be filed in the right court within the jurisdiction of Kenya. - b) I make no order as to costs.

I so order.

$g$ th m september<br>day of Dated at Kampala this....... $\ldots 2024.$

the but

Hon. Lady Justice Dr. Christine A. Echookit Judge.

The right of appeal explained.