DEMAND LETTERS
Our Ref: OW&C/100/ACC/001/2011
YOUR REF: TBA
DATE:
Ondiek Marach,
P.O. Box 11880,.
NAIROBI.
Dear Sir/Madam,
RE: ACCIDENT ON 10/5/2011 ALONG AHERO-KISUMU ROAD AT KACHOK
INVOLVING YOUR M/V KBM 000M (MITSUBISHI LORRY)
OUR CLIENTS: (NAME OF CLIENT)
We refer to the above matter.
We have received instructions from (NAME OF CLIENT) (hereinafter ‘our client’) to address you
as hereunder;
That on or about 10th May 2011 our client was lawfully and diligently walking along the aforesaid
road when your motor vehicle registration NO. KBM 000M owned by you was so carelessly and/or
recklessly driven by your driver/agent/employee/servant that he caused the same to violently hit
our clients as a consequence whereof our client sustained serious injuries on his face and other
parts of the body.
Our further instructions are that the said accident occurred because your
driver/agent/employee/servant who was driving at a high speed swerved off the road so as to avoid
a head on collision with an oncoming vehicle and thereby violently hitting our client by the side
mirror.
Our firm instructions are therefore to demand, as we hereby do, that you admit liability within
FOURTEEN (14) days from the date hereof, failure to which we shall institute legal proceedings
against you, on behalf of our client, without further notice to you in this regard and at your own
peril as to costs and other incidentals arising therefrom.
Yours faithfully,
For OBAT WASONGA& CO. ADVOCATES
ADVOCATE
Page 1 of 179
Our Ref: OW&C/GEN/001/2011Your Ref: T.B.A
DATE: 27th June 2011
Teargas Awino,
P. O. Box 849,
KISUMU.
Dear Sir/ Madam,
RE: LANDLORD’S NOTICE TO TERMINATE TENANCY AND IN THE MATTER
OF LANDLORD AND TERNAT (SHOPS, HOTELS AND CATERING
(ESTABLISHMENTS) ACT CAP. 301
OUR CLIENT: (name of client)
==================================================================
Your notice to terminate tenancy dated 31st May 2014 has been placed in our hands to reply to as
follows:TAKE NOTICEthat the tenant, …… (hereinafter “our client”) does not agree to comply with your
said notice on the following grounds:
a).
There is no rent due and/or unpaid as alleged by the Landlady instead it is the
landlady who has locked the business premises the alleged for two months making
it impossible for the tenant to carry on with her business.
b).
The tenant is ready and willing to pay rent including even depositing the same in
the tribunal for the landlady to collect.
c).
The landlady persists in acts of sabotage aimed at illegally terminating the tenancy
by:i).
Locking the premises
ii).
Being arrogant and abusive towards the tenant (our client)
iii).
Failing to maintain a rent book
iv).
Refusing to accept rent
This notice is given under Section 4(5) of the Landlord and Tenant (Shops, Hotels and Catering
Establishments) Act Cap 301).
Yours faithfully,
For OBAT WASONGA & CO. ADVOCATES
Page 2 of 179
ADVOCATE
/ak
c.c:
CLIENT,
P. O. Box 17,
KATITO
The Chairman,
Business Premises Rent Tribunal,
KISUMU.
Our Ref: OW&C/GEN/001/2011Your Ref: T.B.A DATE:
Okbichalonegi,
Ichieni Primary School,
P. O. Box 105,
NYILIMA.
Dear Sir/ Madam,
RE: DEMAND LETTER
SUBJECT: …………………
=================================
On or about the 3rd November, 2011 you together with another jointly caused a report to be made
about one Mr. ……………., at Aram Police Station to the effect of inciting members of Public into
violence and that he was planning to mobilize members of public to stone the dispensary, which
report caused the OCS –Aram Police Station to write to our client Summon.
Our client visited the station, was shown the allegation you made against him, of which he denied
and was released for lack of sufficient evidence.
Our instructions are that the report was malicious, unfounded, unlawful and intended to threaten
our client’s liberty and demean his image in the public-domain.
Page 3 of 179
We are therefore instructed to demand your admission of liability and a proposal for
compensation from you, failure in which we have express instructions from our client to
commence a legal suit against you.
Yours faithfully,
For OBAT WASONGA& CO. ADVOCATES
PROBATE
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL
SUCCESSION CAUSE NO. OF 2014
IN THE MATTER OF THE ESTATE OF ………- DECEASED
AND
IN THE MATTER OF AN APPLICATION BY ……………….. AND ………. FOR PETITION
FOR GRANT
PETITION FOR PROBATE OF WRITTEN WILL
We, …………………….. AND ………………………. of P.O Box MUHORONI, residents of Nyando
District within the Republic of Kenya and male adults of sound mind HEREBY PETITION this
Honourable Court for a grant of probate of the last will of the above-named ……- DECEASED:
AND SAY AS FOLLOWS:1. The said died on the 28th January 2000 domiciled in the Republic of Kenya and a resident
of Koru in Nyando District.
2. The document hereto annexed contains the true and original last written will of the
deceased.
3. We are the executors named in the said will and that power should be reserved for the
other executors named therein to prove.
Page 4 of 179
4. We will faithfully administer according to law all the estate which by law devolves upon
and vests in the personal representatives of the deceased and we will render a just and true
account of such estate whenever required by law so to do and we will when required by this
court deliver up thereto the said grant.
Signed by the above-named ……………………………………
and
This …………Day of …………………………….. 2014
-------------------------------------------------------(Signatures)
In the presence of
ADVOCATE
DRAWN & FILED BY
GOR MAHIA & COMPANY
ADVOCATES
BON-ACCORD HOUSE, 2ND FLOOR
P.O.BOX -40100
KISUMU
REPUBLIC OF KENYA
IN THE HIG0H COURT OF KENYA AT KISUMU
SUCCESSION CAUSE NO. OF 2014
IN THE MATTER OF THE ESTATE OF ………………- DECEASED
AND
IN THE MATTER OF AN APPLICATION BY ………………. AND …………… FOR PETITION
FOR GRANT
AFFIDAVIT IN SUPPORT OF PETITION FOR PROBATE OR FOR LETTERS OF
ADMINISTRATION WITH WRITTEN WILL ANNEXED
We, …………………. and ………………………. of P.O Box 24 MUHORONI, residents of Nyando
District within the Republic of Kenya and male adults of sound mind do hereby jointly make oath
and state as follows:1. The full names of the deceased to whose estate the proceedings herein relate is ……… and
we are the petitioners named in the petition herein dated the….…………..day of
……………………………….2014 upon which I have endorsed my name at the time of swearing
this affidavit.
Page 5 of 179
2. The deceased died on the 28th January 2000 at H.H. AGA KHAN HOSPITAL KISUMU as
appears from the attached photocopy of the certificate of Death marked “MAO-1” upon
which we have written our names at the time of swearing hereof.
3. The deceased was at the date of his death domiciled Kenya and his last known place of
residence was at Koru in Nyando District.
4. The deceased died leaving a valid written will dated the 22nd February 1999.
5. We are seeking a grant of representation on the grounds that we are the Executors and
Administrators of the deceased’s estate the other being ………..
6. The following is a full inventory of all the assets and liabilities of the deceased at the date
of his death(including such assets, if any, as have arisen or become known since that date)
ASSETS:
a) Ager Farm, Kisumu/
b) Land at Lambwe Valley
c) A Plot at Kanyakwar-Kisumu Municipality
d) A Plot near the bridge along Kakamega-Kisumu road in Kisumu Municipality
e) A Plot in Siaya Township
f) Peugeot 504 Pick-up reg no.
g) Volkswagen Combi Reg. NO
h) Account with Standard Chartered Bank, Kenyatta Avenue Branch Nairobi.
i) Account with Standard Chartered Bank, Kisumu Branch
j) Account with National Bank of Kenya,Kisumu Branch
k) Shares with Uchumi
l) Shares with Kenya Airways
Total estimated value Kshs.40,000,000.00/=
Liabilities
a) Loan of Kshs. 2,000,000.00/=
Total estimated value Kshs. 38,000,000.00/=
7. The facts deponed hereinabove are known to us of our personal knowledge.
Sworn at Kisumu by the said
and Henry
} ………………………………….
on this………………... day of
}
………………………….. 2011
Before me
Page 6 of 179
}
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} ……………………………………
}
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}
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Commissioner for Oaths
DRAWN & FILED BY
GOR MAHIA& COMPANY
ADVOCATES
, 2ND FLOOR,
P.O. BOX -40100
KISUMU
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCCESSION CAUSE NO. OF 2014
IN THE MATTER OF THE ESTATE OF ……………….- DECEASED
AND
IN THE MATTER OF AN APPLICATION BY ……………… AND …………………… FOR
PETITION FOR GRANT
AFFIDAVIT OF JUSTIFICATION OF PROPOSED ADMINISTRATORS
We, …………………. and ……………………. of P.O Box 24 MUHORONI, petitioned this
Honourable for grant of Probate of the will annexed of the estate of the above-named …………
WHO DIED ON 28TH January 2000 take oath and say as follows:1. We are after payment of all the deceased’s just debts and having taken into account all his
liabilities well and truly worth net of such debts and liabilities in immovable and movable
assets in Kenya at least the sum of Kshs. Thirty eight Million ( Kshs. 38,000,000.00/=).
2. The facts herein deposed are known to us as of our own personal knowledge.
Page 7 of 179
SWORN at KISUMU by the said
……………….and ………………………….
}
} ………………………………….
}
this………... day of ………………………….. 2014
}
}
Before me
} ……………………………………
}
}
}
Commissioner for Oaths
}
DRAWN & FILED BY
GOR MAHIA& COMPANY
ADVOCATES
, 2ND FLOOR,
KISUMU
FULL GRANT:
FORM A.5.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL
SUCCESSION CAUSE NO.
OF
IN THE MATTER OF THE ESTATE OF
.
.
(DECEASED).
AFFIDAVIT IN SUPPORT OF PETITION FOR LETTERS OF ADMINISTRATION
INTESTATE
I/ We, ______________________________________________________________ of P. O.
Box ______________________________ joint and severally make oath and say as follows:
1. The full name of the deceased to whose estate the proceedings herein relate is
N/A
_______________________________________(also known as ______________________)
10/9/2012
Page 8 of 179
3/3/2003
LUNDHA
and I am/ We are the Petitioner(s) named in the petition dated _____________________
upon which I/ We have endorsed my/ our name(s) at the time of swearing this affidavit.
2. The deceased died on __________________ at ________________________________
_________________________ as appears from the attached certificate (or photocopy of the
certificate) of the death (or other document) marked “WAA-1” upon which I/We have written
my/ our name(s) at the time of swearing hereof.
3. The deceased was at the date of his death domiciled in __________________________(name
of the country) and his last known place of resident was at ___________________________
(name of the place).
4. The deceased died intestate and left the following surviving him/ her:
a) _____________________________________________________________________
___
b) _____________________________________________________________________
__
c) _____________________________________________________________________
__
d) _____________________________________________________________________
__
e) _____________________________________________________________________
__
f) _____________________________________________________________________
__
g) _____________________________________________________________________
__
h) _____________________________________________________________________
__
i) _____________________________________________________________________
__
j) _____________________________________________________________________
__
k) _____________________________________________________________________
__
Page 9 of 179
5. I/ We are related to the deceased by reason of being his/ her___________________________
6. The following is full inventory of all the assets and liabilities by the deceased at the date of his
death (including such assets if any) as have arisen or become known since that date.
ASSETS:a) _____________________________________________________________________
___
b) _____________________________________________________________________
__
c) _____________________________________________________________________
__
d) _____________________________________________________________________
__
e) _____________________________________________________________________
__
f) _____________________________________________________________________
__
g) _____________________________________________________________________
__
h) _____________________________________________________________________
__
i) _____________________________________________________________________
__
Total estimated value of Kshs.__________________________________________________
LIABILITIES:NIL
a) ________________________________________________________________________
b) _______________________________________________________________________
c) _______________________________________________________________________
NIL
Total estimated value Kshs.________________________________________________________
7. The facts herein deponed to are known to me/us of my/our personal knowledge
SWORN at KISUMU by the Said
____________________________________
Page 10 of 179
This _______ day of ___________________.
Before me:
_______________________
Deponent
Commissioner for Oaths
(Or other swearing Officer)
DRAWN & FILED BY:
& ADVOCATES
, 2ND FLOOR
P. O. BOX
Form 38
REPBULIC OF KENYA
IN THE HIGH COURT OF KENYA AT
.
SUCCESSION CAUSE NO.__________ OF 2012
IN THE MATTER OF THE ESTATE OF __
AND
IN THE MATTER OF AN APPLICATION BY
=======================================APPLICANT
____
_===DECEASED
CONSENT.
CONSENT TO MAKING OF GRANT OF ADMINISTRATION INTESTATE TO PERSON
OF EQUAL OR LESSOR PRIORITY WHEREAS the above named ________________
__________________________ died on .
AND WHEREAS I THE UNDERLISTED is a beneficiary and/ or entitled to apply for Letters of
Administration to the estate of the said in equality with priority to ……….of P. O. BOX , but
nevertheless I am agreeable to the said ………………...
Page 11 of 179
Now, We the said DEPENDANTS of the applicant and the Deceased being care of P. O. BOX
………. and ……….., do hereby consent to Letters of Administration to the estate of the deceased
being granted to the said …………………….
SIGNED BY THE SAID
In the presence of
Page 12 of 179
Petition for Letters of
Form P&A.80
Administration Intestate
PP&A.80
REPBULIC OF KENYA.
IN THE HIGH COURT OF KENYA ________________.
SUCCESSION CAUSE NO. H.C/ R.M _______________ OF _______.
In the matter of the Estate of ______________________________________________(Deceased)
I, __________________________________________ of _________________________
HEREBY PETITION this Honourable Court for a grant of letter of Administration intestate of
the estate of the above named _____________________________________________ who died
on the __________________, 20____________.
AND SAY as follows:
The deceased died intestate domiciled in _______________________________________
I present this petition in my capacity as ________________________________________
Every person having an equal or prior right to a grant of representation herein has
consented hereto (or has renounced such right or has been issued with a citation to renounce such
right and apply for a grant of representation and has not done so).
I will faithfully administer according to law all the estate which by law devolves upon and
vets in his personal representative of the deceased and I will render a just and true account of such
estate whenever required by law so to do and I will when required by this Court deliver up thereto
the said grant.
Signed by the above named________________________
In the presence of_______________________________
Signature______________________________________
Advocate of (Address)
Or in the presence of ____________________________
Page 13 of 179
Signature______________________________________
Of address description____________________________
DRAWN & FILED BY:
& ADVOCATES
, 2ND FLOOR
P. O. BOX ,
.
Page 14 of 179
FORM A 11
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU .
SUCCESSION CAUSE NO.
OF
.
AFFIDAVIT OF JUSTIFICATION OF PROPOSED SURETIES.
We,______________________________________________of___________________________
P.O.BOX,
______and_____________________________________of_____________________________
joint and severally make oath and say as follows:
1) We are proposed sureties on behalf of__________________________________________
the intended administrator (with will and codicil) annexed of the estate of the above-named
__________________________________ in the sum of Kenya Shillings____________________
200,.00
________________________ (Kshs.___________________________).
2) I,______________________________ for myself say that I am after payment of all my just
debits and having taken into account all my liabilities, well and truly worth net of such debits and
liabilities immovable and movable assets in Kenya at least the sum of Kenya Shillings________
ONE HUNDRED THOUSAND
______________________________________________(Kshs._________________________).
3) I,____________________________ for myself say that I am after payment of all my just
debits and having taken into account all my liabilities, well and truly worth net of such debits and
liabilities in immovable and movable assets in Kenya at least sum of Kenya Shillings ________
____________________________________(Kshs.___________________________________).
4) The facts deponed to are known to us of our personal knowledge
SWORN at KISUMU by the Said
1. ____________________________________
2. ____________________________________
This _______ day of ___________________.
_______________________
Before me:
_______________________
Deponents
Page 15 of 179
Commissioner for Oaths
(Or other swearing Officer)
DRAWN & FILED BY:
& ADVOCATES
, 2ND FLOOR
P. O. BOX 3055 – 40100,
.
Page 16 of 179
FORM A 12
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU .
SUCCESSION CAUSE NO.
OF
.
IN THE MATTER OF THE ESTATE OF_______________________________(DECEASED).
AFFIDAVIT OF JUSTIFICATION OF PROPOSED SURETIES.
I,___________________________________________________of P.O. Box ________________
Having petitioned this Honourable Court for grant of letters of administration (or which the will
land codicil annexed) of the estate of the above-named_________________________________
Who died on_________________________, 20____________ make oath and say as follows:
1) I am after payment of all my just debits and having taken into account all my liabilities,
well and truly worth net of such debts and liabilities in immovable and movable assets in Kenya at
least sum of Kenya Shillings __________________________________(Kshs._______________).
2) The facts herein deposed to are known to me of my personal knowledge
SWORN at by the Said
____________________________________
This _______ day of ___________________.
Before me:
_______________________
Deponent
Commissioner for Oaths
(Or other swearing Officer)
DRAWN & FILED BY:
& ADVOCATES
, 2ND FLOOR
Page 17 of 179
P. O. BOX,
KISUMU.
Page 18 of 179
Guarantee by Personal Sureties.
FORM A. 57
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU .
SUCCESSION CAUSE NO.
OF
.
In the matter of the Estate of______________________________________________Deceased
WHEREAS the above-named________________________________________________
3/3/
Of_____________________________________ died on the____________________________,
03
20__________
and____________________________________________(hereinafter called “the
administrator”) is the intended administrator of his estate:
NOW WE,_______________________________ of_____________________________
And___________________________________of_____________________________________
hereby jointly and severally guarantee and agree as follows:
1) We will when lawfully required to do so make good any loss which any person interested in
the administration of the estate of the deceased may suffer in consequence of the breach by
the administrator of his duty:a) To collect and get in the estate of the deceased and administer it according to law;
b) When required to do so by the Court to exhibit on oath in Court a full inventory of
the said estate and when so required to render an account of the estate; and
c) When so required by the Court to deliver up the grant to Court.
2) The giving of time to the administrator or any other forbearance or indulgence shall not in
any way affect our ability under this guarantee.
3) The liability under this guarantee shall be continuing and shall before the whole amount of
the loss mentioned in paragraph one above that our aggregated total liability shall not in
any event exceed the sum of Kenya Shillings_____________________________________
(Kshs.____________________________).
Dated the_______________________, 20_______________.
Signed, Sealed and delivered by the within named
}
}
}
In the presence of
}
}
Commissioner for Oaths/ Magistrate.
Page 19 of 179
DRAWN & FILED BY:
& ADVOCATES
, 2ND FLOOR
P. O. BOX ,
.
Page 20 of 179
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCCESSION CAUSE NO.
OF 2012
IN THE MATTER OF THE ESTATE OF ………………..
AND
IN THE MATTER OF AN APPLICATION BY: NOTICE
LET ALL PARTIES, take notice that a petition for Grant of letter of Administration intestate to
the estate of the above named deceased who died at ……………….., on the …………., has been filed
in the registry by ………………………. in his capacity as a SON to the deceased.
AND FURTHER TAKE NOTICE THATobjection in the prescribed form to the making of the
proposed grant are invited and must be lodged in this registry within thirty (30) days of publication
of this notice.
AND FURTHER TAKE NOTICE THATif no objection has been lodged in this registry in the
prescribed form within thirty (30) days of the date of publication of this notice, the court may
proceed to make grant as prayed or make such Orders as it thinks fit.
DATED at …………….. this day of2012.
____________________
DEPUTY REGISTRAR
KSL
Page 21 of 179
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL
SUCCESSION CAUSE NO.
OF 2012
IN THE MATTER OF THE ESTATE OF …………………………..
1. AND
IN THE MATTER OF AN APPLICATION BY: -
NOTICE TO THE PRINCIPAL REGISTRAR
The Principal Registrar,
Probate Registry,
P. O. Box 30041,
NAIROBI.
TAKE NOTICE that an application has been made in this registry by…………………………, of P. O.
Box ……………., for Grant of Letter of Administration intestate of the estate of ………………. in his
capacity as SON of the deceased who died on the ………………, at ……………..
The relevant details of the deceased as far as is known to this registry appear in the index card.
DATED at…………………… thisday of, 2012
____________________
DEPUTY REGISTRAR
KSL
Page 22 of 179
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT….
SUCCESSION CAUSE NO.
OF 2012
IN THE MATTER OF THE ESTATE OF ………………………..
2. AND
IN THE MATTER OF AN APPLICATION BY: INDEX CARD
1.
Full name of the deceased
-
2.
Address of the deceased
-
3.
Name of Applicant
-
4.
Capacity of Applicant
-
SON
5.
Title of proceedings
-
SUCCESSION CAUSE NO. OF 2012.
P.O. BOX
DATED at …………… thisday of2012.
_____________________
DEPUTY REGISTRAR
KSL
Page 23 of 179
NORMAL APPLICATION:
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL
ELC NO.
OF 2013
…………………………………………..1ST PLAINTIFF
…………………………………….2ND PLAINTIFF
……………………………………………3RD PLAINTIFF
VERSUS
……….........……………………………………..1ST DEFENDANT
……….......……………..…………………..2ND DEFENDANT
…………....……………………………………3RD DEFENDANT
…….…....…………………………………….4TH DEFENDANT
CERTIFICATE OF URGENCY
I GINI WASEKAO, an Advocate of the High Court of Kenya, practicing as such under the name
and style of ……………… ADVOCATES, GATE NO…., P. O. BOX RONGAI, do hereby
certify this Application as extremely urgent and be heard on a priority basis for the reason that:
1. The Defendants by themselves and/or their agents, servants, assignees or successors herein
are in the process of selling and disposing the subject of the Suit being the (property)
otherwise known as LAND PARCEL NO…………………..
2. UNLESS this Honourable Court intervenes and grants the orders sought in the Application
annexed hereto, the Applicant will suffer substantial loss which cannot be compensated in
damages.
DATED
at RONGAI this
day of
ADVOCATES FOR THE PLAINTIFFS
DRAWN & FILED BY:
ADVOCATES,
GATE NO. ,
AGHA KHAN ROAD,),
P. O. BOX
Our Reference:
Page 24 of 179
2013
TO BE SERVED UPON:
1. ………………………..
(To be effected through the Plaintiffs’ Advocates office)
Page 25 of 179
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
ELC NO.
OF 2013
…………………….........……………………..1ST PLAINTIFF
………………..........…………………….2ND PLAINTIFF
……………………...........………………………3RD PLAINTIFF
VERSUS
…………………………………………....…..1ST DEFENDANT
………..……………..………………....…..2ND DEFENDANT
…………………………………………..……3RD DEFENDANT
…….…………………………………..…….4TH DEFENDANT
NOTICE OF MOTION
Under Order 40 Rule 1(a), Order 51 Rules 1 and 2 of the Civil Procedure Rules, 2010, Section
3A of Civil Procedure Act, High Court Rules (Practice and Procedure) Rules 3 Sub Rule 1
and 2, Section 28 of the Registered Land Act Cap. 300. Sections 25, 26 and 107 of the Land
Registration Act, 2012 and ALL ENABLING PROVISIONS OF THE LAW.
TAKE NOTICE that this Honourable Court shall be moved on the __________ day of
________________, 2013 at 9.00 O’clock in the forenoon or soon thereafter by the counsel for the
Applicants for ORDERS:1. THAT this application be certified urgent and this service be dispensed with in the first
instance.
2. THAT the Honourable Court be pleased issue a Temporary Injunction restraining the
Defendants herein by themselves and any other person acting on their behalf from any
dealings in the portion of property LAND PARCEL NO…………that belongs to the
applicants pending the hearing and determination of this application inter-partes.
3. THAT the Honourable Court be pleased issue a Temporary Injunction restraining the
Defendants herein by themselves and any other person acting on their behalf from any
dealings in the portion of property LAND PARCEL NO. ….that belongs to the applicants
pending the hearing and determination of this suit inter-partes.
4. THAT an order of specific performance be issued against the defendants compelling them
to transfer to the Applicants all that property known as LAND PARCEL NO………….
measuring approximately twelve (12) acres.
5. THAT the Respondents do bear costs for this Application.
WHICH APPLICATION is based on the grounds:
a. THATthe Plaintiffs concluded a land sale agreement wherein they purchased a portion
measuring approximately ………… out of …… Ha of the above said land vide an
agreement dated the
b. THAT the same parcel of land was also the subject matter of a suit KSL HCC Succession
Cause No …………….
Page 26 of 179
c. THAT the suit was concluded and a Certificate of Confirmation of Grant was issued on the
29……………….. to ………………….. and ……………….. having been appointed the
Administrators after the other heirs having agreed to the same via their affidavits.
d. THAT in the above Grant Certificate, the land was also distributed to the Plaintiffs in acres.
e. THAT in the cause of proceedings in the above case, no objection was raised by any party
whatsoever and hence the confirmation of the Grant.
f. THAT ……………. (4th Defendant) is currently in the process of negotiating a sale
agreement in regard to the said land with a company named ………………to the detriment
of the Plaintiffs because they are the bonafide owners of the said parcel vide the sale
agreement referred to above and the court order that distributed the same.
g. THAT the Applicants is likely to suffer great prejudice unless the orders sought herein are
granted.
h. THAT the Respondents will not suffer any prejudice and/ loss should the application
herein be allowed as the orders sought are only to preserve the subject matter.
THIS APPLICATION is supported by the annexed affidavit of ……………………….. and
other grounds and/ or reasons as may be adduced at the hearing hereof.
DATED
at KSL this
day of
2013
OKBICHALONEGI & CO ADVOCATES
ADVOCATES FOR THE PLAINTIFFS
DRAWN & FILED BY:
OKBICHALONEGI & CO ADVOCATES,
GATE NO. ,
AGHA KHAN ROAD,
P. O. BOX
KSL
Our Reference:
TO BE SERVED UPON:
1. …………………………….
(To be effected through the Plaintiffs’ Advocates office)
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
ELC NO.
OF 2013
…………………………………………..1ST PLAINTIFF
…………………………………….2ND PLAINTIFF
……………………………………………3RD PLAINTIFF
VERSUS
……………………………………………..1ST DEFENDANT
Page 27 of 179
……………………………………….…...2ND DEFENDANT
………………………………………………3RD DEFENDANT
…….……………………………………….4TH DEFENDANT
SUPPORTING AFFIDAVIT
I, ………………a resident of ………….. County of P.O. BOX ………. in the Republic of Kenya
do hereby make oath and state as hereunder:
1. THAT I am a male adult of sound mind and the 1ST Applicant herein thus competent to swear
this affidavit.
2. THAT we did conclude a land sale agreement wherein my co-plaintiffs and I purchased a
portion measuring approximately ….. acres out of ….. Ha of the above said land vide an
agreement dated the ……………..from the Defendants.
3. THAT the same parcel of land was also the subject matter of a suit … HCC Succession
Cause No ….
4. THAT the suit was concluded and a Certificate of Confirmation of Grant was issued on the 29th
……………… to ………………… and ……………… having been appointed the
Administrators after the other heirs having agreed to the same via their affidavits.
5. THAT in the above Certificate of Grant of Confirmation issued on29th…………. the land was
also distributed to us (heirs) in acres.
6. THAT in the cause of proceedings in the above case, no objection was raised by any party
whatsoever and hence the confirmation of the Grant.
7. THAT………………….(4th Defendant) is currently in the process of negotiating a sale
agreement in regard to the said land with a company named………………..to our detriment
because we are the bonafide owners of the said parcel vide the sale agreement referred to above
and the court order that distributed the same.
8. THAT I swear this affidavit in support of my application regarding property ………………..
9. THAT if the Defendants’ action is not restrained from selling and/or transferring the said
parcel, we shall stand to suffer irreparable loss.
10. THAT all I have deponed to hereinabove is true and correct to the best of my knowledge
SAVE for facts based on information sources and grounds of believe have been disclosed
thereof.
SWORN at KSL by the said
Page 28 of 179
This ………. day of …………………………..
_________________
DEPONENT
BEFORE ME:
COMMISSIONER FOR OATHS.
DRAWN & FILED BY:
OKBICHALONEGI
ADVOCATES,
GATE NO. ,
AGHA KHAN ROAD,
P. O. BOX
KSL
TO BE SERVED UPON:
1. ……………………………………
(To be effected through the Plaintiffs’ Advocates office)
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL
ELC NO.
OF 2013
…………………………………………..1ST PLAINTIFF
…………………………………….2ND PLAINTIFF
……………………………………………3RD PLAINTIFF
VERSUS
……………………………………………..1ST DEFENDANT
………..……………..…………………..2ND DEFENDANT
………………………………………………3RD DEFENDANT
…….……………………………………….4TH DEFENDANT
Page 29 of 179
PLAINT
(FAST TRACK)
1. The 1st and 2nd Plaintiffs are male adults of sound mind and disposition residing in and
working for gain in ……………. County within the Republic of Kenya. Their address of
service for purposes of this suit shall be C/O Messrs Okbichalonegi Advocates, Gate No.,
Agha Khan Road, P. O. BOX ….
2. The 3rd Plaintiff is an adult of sound mind and disposition residing in and working for
gain in the Republic of South Africa. His address of service for purposes of this suit shall
be C/O Messrs Okbichalonegi Advocates, Gate No., P. O. BOX .
3. The Defendants are male adults of sound mind working for gain within the Republic of
Kenya. (Service of summons herein shall be effected through the Plaintiff’s Advocates’
offices aforesaid.)
4. The plaintiffs aver that they concluded a land sale agreement for LAND PARCEL
NO…..wherein they purchased a portion measuring approximately ….. acres out of
…..Ha of the above said land vide an agreement dated the ……….
5. The Plaintiffs further aver that the same parcel of land was also the subject matter of a
suit … HCC Succession Cause No ………..which was concluded and a Certificate of
Confirmation of Grant issued on the ………………….. to …….. and ………………..
having been appointed the Administrators.
6. That the land in contention was also distributed to the heirs in acres in the above
mentioned certificate of Grant by the court.
7. By virtue of the contents of paragraphs 4, 5 and 6 hereinabove, the Plaintiffs are the
lawful and rightful owners of a portion of the suit property.
Page 30 of 179
8. The 4th Defendant is currently without any colour of right, consideration or the consent of
the Plaintiffs in the process of negotiating a sale agreement in regard to the said portion
of the land with a company named ………………..thereby denying the Plaintiffs use and
quiet possession of the said portion of land.
PARTICULARS OF BREACH OF CONTRACT:
i.
It was an express term of the sale agreement that upon the confirmation of Grant
the defendants (vendors) were to notify the plaintiffs (purchasers) of the same so
as the balance of the purchase price can be paid.
ii.
That the defendants have failed to put the plaintiffs into possession of the above
stated parcel of land.
iii.
That the defendants have failed to do all that that is within their powers to ensure
the smooth transfer of the property into the name of the purchasers despite the fact
that they have obtained the letters of administration.
iv.
That in the aforementioned suit the suit property was divided to the plaintiffs too
and since then the defendants have been frustrating the plaintiffs efforts to initiate
the transfer process.
v.
That the defendants through the 4th Defendant have initiated the process of selling
the same portion of land to another party (name of the party) in total disregard to
the initial sale agreement and the court order.
9. The plaintiffs aver that notwithstanding demand and notice of intention to sue the
Defendants have failed to abort the sale process and transfer the land to them.
10. The plaintiffs aver that there is no other suit pending and there have been no previous
proceedings in any court between the plaintiff and the defendants over the same subject
matter.
11. The cause of action arose within the jurisdiction of this court.
Page 31 of 179
REASONS WHEREFORE the plaintiffs pray for ORDERS:
(a) THAT an order of injunction against the defendants either by themselves or their
servants, employees, agents or any other person acting for them or on their behalf
from transferring, selling exchanging, disposing of or dealing in the portion of land
that was sold to the plaintiffs in ……………….to …………… be issued.
(b) THAT an order be issued compelling the defendants to transfer the title of the suit
property to the plaintiffs herein.
(c) THAT a permanent injunction restraining the defendants either by themselves or
their servants, employees, agents or any other person acting for them or on their
behalf from transferring, selling, exchanging, disposing of or dealing in the suit
property in any other manner whatsoever with the parcel of land known as
………………be issued.
(d) THAT an order for compensation for loss and additional costs incurred since then be
issued.
(e) THAT an order for specific performance be issued against the defendants.
(f) Costs of this suit.
DATED
at KSL this
day of
2013
OKBICHALONEGI
ADVOCATES FOR THE PLAINTIFFS
DRAWN & FILED BY:
OKBICHALONEGI
ADVOCATES,
Page 32 of 179
GATE NO. 4,
AGHA KHAN ROAD,
P. O. BOX
KSL
Our Reference:
TO BE SERVED UPON:
2. ………………………………………
(To be effected through the Plaintiffs’ Advocates office)
CERTIFICATE OF POSTING (applies to all documents served/sent by POSTA)
Our Ref:Your Ref: TBA
DATE:
M/s Ondiek Marach,
P.O. Box ,
Ksl.
Dear Sir/Madam
“BY REGISTERED POST
UNDER CERTIFICATE OF POSTING”
RE: LAND PARCEL NO……
OUR CLIENTS; (name of clients)
The above matter refers.
Kindly find enclosed herewith a copy of the Demand letter dated ……………….. served upon
yourself by registered post.
Thank you.
Yours faithfully,
FOR: Giniwasekano Advocates
ADVOCATE
Page 33 of 179
/ow
C.c: 1.
3.
Lands Registrar,
KSL County
4.
Our Clients-
EXTRACTED ORDERS (IS EXTRACTED BY THE ADVOCATE AFTER A RULING IN
AN f APPLICATION):
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL
ELC NO. OF 2013.
……………………………………………………. 1ST PLAINTIFF
………………………………………………..2ND PLAINTIFF
……………………………………………………….3RD PLAINTIFF
-VERSUS…………………………………………………………. 1ST DEFENDANT
………………………………………………………2ND DEFENDANT
……………………………………………………………………..3RD DEFENDANT
…………………………………………………………..4TH DEFENDANT
ORDER
UPON READING the Plaintiff’s application dated…………., filed under certificate of urgency together with
Affidavit in support sworn on ………….. and UPON HEARING submissions and arguments by the Applicant’s
counsel on ……………., before Justice JL Onguto, IT IS HEREBY ORDERED THAT:
1.
This application is hereby certified as extremely urgent and deserving to be heard ex-parte.
2.
An order of temporary injunction is hereby issued against the Defendant restraining them, their agents,
servants, employees and/or any other person from any dealings in the portion of property LAND PARCEL
NO. ……………….. that belongs to the applicants.
3.
That an inter-partes hearing of this application be on the (the no of days is determined by the days given by
the Judge for injunction….normally after 14 days).
4.
The cost of this application is hereby granted to the Applicants.
Page 34 of 179
Given under my hand and the seal of the court on this ……… day of ………… 2013.
ISSUED on this
day of
2013.
_________________________________
DEPUTY REGISTRAR
HIGH COURT OF KENYA AT KSL
PENAL NOTICE:
TAKE NOTICE: That an order has been made by this court and any party served that does not comply with
the said ORDER shall be cited for court contempt and shall be liable to an imprisonment for a period of six
(6) months.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL SUIT NO OF 2009
…………………………………………………………………….1ST PLAINTIFF
……………………………………………………………………..2ND PLAINTIFF
……………………………………………………………………………3RD PLAINTIFF
…………………………………………………………………………4TH PLAINTIFF
…………………………………………………………………5TH PLAINTIFF
…………………………………………………………………6TH PLAINTIFF
VERSUS
…….…………………………………….……………………DEFENDANT
ORDER.
[Before: Hon …. Judge of the High court of Kenya at ………..]
APPLICATION FOR ORDERS OF:
i.
Certification of Urgency.
ii.
Extension of time pending hearing and determination of application
iii.
Direction as to the currency of deposit in a joint interest earning account.
UPON READING the Notice of motion dated the …………….. filed by the Plaintiffs
AND UPON HEARING Mr. ………….. Advocate,holding brief for………… Advocate for the
Plaintiff”s ex-parte,
IT IS NOW ORDERED:i.
THAT the said application is hereby certified as urgent and leave is granted the applicants
to be heard ex-parte in the first instance.
ii.
THAT pending the hearing and determination of the said application the plaintiffs are
hereby granted an extension of time for fulfilling clause 2 of the consent recorded by the
parties in court on ……………………..
Page 35 of 179
iii.
THAT this application be heard inter-parties on………..day……20…….
iv.
Costs in the cause
DATED at KSLthis _________ day of ____________________, 2012.
GIVEN UNDER MY HANDS and the SEAL of this Court this ______ day of __________ 2012.
___________________________
DEPUTY REGISTRAR
HIGH COURT KSL .
Page 36 of 179
APPLICATION FOR SUMMARY JUDGMENT:
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
“FAST TRACK” CIVIL SUIT NO. ……………. OF 2011
…………………………………………………..…………….. PLAINTIFF/APPLICANT
VERSUS
…………………..……..…. DEFENDANT/RESPONDENT
NOTICE OF MOTION
(Under Order ….. Rules 1 & 2 and Order …… Rule 1 of the Civil Procedure Rules, 2010 A
ND ALL OTHER ENABLING PROVISIONS OF THE LAW)
TAKE NOTICE that this Honourable Court will be moved on the ……….…… day of
……………………………. 2011 at 9:00 o’clock in the forenoon or so soon thereafter as Counsel for the
Plaintiff/Applicant (the “Applicant”) may be heard on an application FOR ORDERS:
1. THAT
judgment
be
entered
for
the
Plaintiff/Applicant
against
the
Defendant/Respondent for the sum of Kshs……………../=, being the sum of accrued rent
together with interest thereon as from April 2010 to January 2011.
2. THAT the costs of this application and of the entire suit be awarded to the Plaintiff
against the Defendant together with interest thereon.
WHICH APPLICATION is based on the following GROUNDS:
1. THAT the Defendant is well and truly indebted to the Plaintiff for the sum of Kshs.
……………./= and was so indebted at the commencement of this suit.
2. THAT the judgment sought by the Plaintiff herein, is for a straight-forward liquidated
sum.
Page 37 of 179
3. THAT the Defendant does not have any and/or a reasonable defence to this suit.
AND WHICH APPLICATION is further supported by the annexed Affidavit of
………………..and on such other and further grounds and reasons as may be adduced at the hearing
hereof.
DATED at KSL this ………… day of …………………………………….. 2014.
………………………………………………
ICHIENI& CO.
ADVOCATES FOR THE PLAINTIFF/APPLICANT
DRAWN & FILED BY:
ICHIENI& CO.
ADVOCATES,
, 2ND FLOOR,
P.O. BOX ,
KSL.
TO BE SERVED UPON:
“If any party served does not appear at the time and place above-mentioned, such order will be
made and proceedings taken as the court may think just and expedient.”
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
“FAST TRACK” CIVIL SUIT NO. ……………. OF 2011
…………………………………………………………..………………………….. PLAINTIFF
VERSUS
……………………………..………………………. DEFENDANT
SUPPORTING AFFIDAVIT
I, ………………, of Post Office Box Number ………………… within the Republic of Kenya, and a
resident of KSL County within the aforesaid Republic, do hereby make oath and state as follows:
Page 38 of 179
1. THAT I am the Plaintiff herein, conversant with the facts arising therefrom hence
competent to swear this affidavit.
2. THAT on or about March 2010, the Defendant and I executed a Tenancy Agreement
whereof I, as Landlord of the business premises known as “…..”, plot number
………..situated at the Ground Floor of……….. located within ……………… within ……
County, agreed to let the said premises to the Defendant subject to payment (by the
Defendant) of a monthly rent of Kshs. ………………../= plus 16% V.A.T.
3. THAT the terms and conditions of the said Agreement stipulated that the tenancy was to
operate for a period of 63 months (5 years 3 months) effective as of .
4. THAT since the commencement of the said tenancy, the Defendant has been in breach of
the terms and conditions of the Tenancy Agreement as outlined hereinbelow:
a. Failure, neglect and/or refusal to pay the stipulated rent when the same has
become due and owing.
b. Failure, neglect and/or refusal to pay the stipulated rent as from …… to …….
thereby accumulating rent arrears amounting to Kshs. …………/= inclusive of 16%
V.A.T. thereof.
c. Failure, neglect and/or refusal to pay 3 months’ rent in advance as per the terms of
the Tenancy Agreement.
5. THAT despite having made a demand and further, having issued a notice of intention to
sue, the Defendant has failed, ignored, neglected and/or refused to settle the amount due
and still persists on such failure, ignorance, neglect and/or refusal to date.
6. THAT in the said premises, I swear this affidavitin support of my application for summary
judgment against the Defendant.
7. THAT the matters deponed to herein are true to the best of my knowledge save for matters
deponed to on belief the grounds whereof have been given and matters deponed to on
information the sources whereof have been disclosed.
SWORN at KSL by
The said ………
}
}
This ………... day of ………………………….…… 2011
BEFORE ME
}
}
}
}
}
}
}
Page 39 of 179
COMMISSIONER FOR OATHS
}
DRAWN & FILED BY:
ICHIENI& CO.
ADVOCATES,
, 2ND FLOOR,
P.O. BOX ,
KSL.
APPLICATION FOR EXECUTION OF A DECREE:
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL
MISC. CIV. APPL. NO. OF 2014.
APPLICATION FOR EXECUTION OF A DECREE
I, Obat Wasonga decree holder do hereby apply for execution of a decree herein below:
1
No of the suit
KSL Hc Misc Civ. Appl. No. 245 of 2014
2
Name of the parties
Obat Wasonga& Co. Advocates –vs- nkt Co. Ltd.
3
Date of decree
19/11/2014
4
Whether any appeal preferred from
N/A
decree
5
Payment or Adjustment
N/A
6
Previous application if any with Date N/A
and Result
7
Amount with interest due upon the
Court - Kshs.1,044,662.00
decree or any other relief granted with
particulars of any cross decree
8
Amount of cost if any Awarded
As awarded in the decree Costs - 1,044,662.00
Interest
- 353,444.00
VAT 16%
- 223,697.00
Subsequent incurred
- 3,500.00
Court collect fees
- 1,500.00
Total
- 1,626,803.00
9
Against whom to be executed
nkt Co. Ltd
10 Mode in which the assistance of the
By issue of warrant of attachment of the judgment
court is required
debtors movable properties through (NAME OF
AUCTINEERS-THE AUCTIONEERS MUST BE
Page 40 of 179
REGISTERED)
I, OBAT WASONGA Advocate declare that what is stated herein is true to the best of my
knowledge and belief __________________________ decree holder.
NOTE: The following declaration is to be made in the case of immovable property
______________ declare that what is stated above description is true to the best of my knowledge
and belief and so far as I have been able to ascertain the interest of the Defendant in the property
therein specified_________________________ decree holder.
DATED at KSL thisday of
2013.
DRAWN & FILED BY
OBAT WASONGA & Co. Advocates
, 2nd Floor,
P. O Box ,
KSL.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL
MISC. CIV. APPL. NO. … OF 2014.
OBAT WASONGA& ADVOCATES=====================APPLICANT
-VERSUSNKT CO. LTD=====================RESPONDENT
CLAIM FOR:-
DECREE
1) That this honorable court be pleased to enter judgment and issue a decree for the taxed cost
of Kshs ……………../=
2) That the honorable court be pleased to issue certificate of costs for the taxed costs of
Kshs……………………./= only
3) That the costs of the application be provided for
UPON READING the bill of cost dated ………….., presented before Co-operative Tribunal on
the ………………….
AND UPON HEARING, counsel for both parties.
IT IS HEREBY ORDERED THAT:a) Judgment be and is hereby entered against the respondent in the sum of
Kshs…………../= only
Page 41 of 179
b) A certificate of costs be and hereby issued for the taxed cost of kshs…………../= only
c) Costs for the applications
Dated at KSL thisday of2012
Issued at KSL thisday of2012
__________________
THE CHAIRMAN
C-OPERATIVE TRIBUNAL
Page 42 of 179
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT KSL
TRIBUNAL CASE NO. 4 OF 2010
………………………………………………………….CLAIMANT
VERSUS
………………………………………………………RESPONDENT
CERTIFICATE OF COSTS
I do hereby certify that applicants bills of costs herein were taxed at Kshs………………./= only.
Dated at KSL thisday of 2012
ISSUED at KSL thisday of2012
__________________
THE CHAIRMAN
C-OPERATIVE TRIBUNAL
LEGAL OPINIONS:
A. FACILITY AGREEMENT
To: [ Agent Bank]
[Date]
for itself and as agent for
the Banks referred to below
[which are original parties to the Agreement]
Dear Sirs
Page 43 of 179
We have acted as English legal advisers to the Agent in connection with the Facility Agreement (the
“Agreement”) dated
and made between (1)
(as Borrower), [(2)
(as Lead Managers),] (3) the Banks as therein defined
and (4)
as Agent, whereby the Banks have severally agreed to make available
to the Borrower a loan facility in the maximum aggregate principal amount of
on and subject to the terms and conditions therein contained.
Expressions defined in the Agreement have the same respective meanings when used in this opinion.
3.
Documents
For the purposes of this opinion, we have examined:
3.1
a copy of the Agreement in the form signed by the parties to it;
3.2
other specific documents;
3.3
a certified copy of the certificate of incorporation and the memorandum and articles of association
of the Borrower [and each Initial Guarantor];
3.4
certified copies of resolutions passed at a meeting of the board of directors of the Borrower [ each
Initial Guarantor] [ a resolution passed by the members of each Initial Guarantor in general meeting
held on 1 relating to the Agreement [and related matters];
3.5
such other documents as we have considered appropriate for the purposes of this opinion.
4.
Assumptions
For the purposes of this opinion we have assumed without investigation:
4.1
the authenticity and completeness of all documents submitted to us as originals or copies, the
genuineness of all signatures and the conformity to original documents of all copies [and the
accuracy of all translations];
Page 44 of 179
4.2
the capacity power and authority of each of the parties (other than the Borrower [and the Initial
Guarantors]) to the Agreement [and any Transfer Certificate];
4.3
the due execution and delivery of the Agreement [and any Transfer Certificate], in compliance with
all requisite corporate authorisations, by each of the parties to it other than the Borrower [and the
Initial Guarantors];
4.4
that the Memorandum and Articles of Association of the Borrower [and each Initial Guarantor] in
the form certified by an officer thereof and delivered as a condition precedent under the Agreement
were true complete and up to date as at the date of the Agreement and the date of this opinion;
4.5
that the resolutions of the board of directors of the Borrower [and each Initial Guarantor] certified by
an officer thereof and delivered as a condition precedent under the Agreement were duly passed at
properly convened meetings of duly appointed directors of [the Borrower/each such company] at
which a quorum was present throughout, have not been amended or rescinded and are in full force
and effect;
4.6
that any provisions of the Borrower’s Articles of Association which limit its directors’ authority to
borrow [and any provisions of any Initial Guarantor’s Articles of Association which limit its directors’
authority to guarantee third parties’ obligations] have been, and will be, observed;
4.7
that the list of authorised signatories of the Borrower [and each Initial Guarantor] certified by an
officer thereof and delivered as a condition precedent under the Agreement is correct;
4.8
that [the Borrower has not/neither the Borrower nor any Initial Guarantor has] passed a voluntary
winding-up resolution, no petition has been presented or order made for the winding-up dissolution
or administration of [the Borrower/any such company] and no receiver administrative receiver
administrator or similar officer has been appointed in relation to [the Borrower/any such company]
or any of [its/their respective] assets;
4.9
that the execution and delivery of the Agreement by [each of] the Borrower [and the Initial
Guarantors] was a proper use of [its/their respective directors’ powers and in [ best interests and
that the exercise of [its/their respective] rights and performance of [ respective] obligations
thereunder will be of material commercial benefit to the Borrower [and, as the case may be, each
of the Initial Guarantors] [and that, immediately after the execution of the Agreement, each Initial
Guarantor was solvent];]
4.10
that the choice of English law to govern the Agreement was made for bona fide purposes;
Page 45 of 179
4.11
that there are no provisions of the laws of any jurisdiction outside England which would be
contravened by the execution delivery or performance of the Agreement and that, in so far as any
obligation under the Agreement falls to be performed in any jurisdiction outside England, its
performance will not be illegal or adversely affected by virtue of the laws or regulations of or
applicable in that jurisdiction.
5.
Opinion
Based upon and subject to the foregoing, and subject to the reservations mentioned below and to any
matters not disclosed to us, we are of the opinion that:
5.1
the Borrower [ each Initial Guarantor] is a company duly incorporated in England with power to
execute deliver and exercise its rights and perform its obligations under the Agreement and such
execution delivery and performance have been duly authorised by appropriate corporate action;
5.2
the Agreement constitutes a valid and binding agreement under English law;
5.3
the execution, delivery and performance by the Borrower [and the Initial Guarantors] of the
Agreement and the transactions contemplated by it will not violate any existing laws of England;
5.4
no authorisations approvals consents licences exemptions filings or registrations of or with any
governmental or public bodies or authorities of or in England are required in connection with the
execution delivery or performance of the Agreement or for the Agreement to be valid and binding;
5.5
no stamp duty or similar document taxes are payable in England on the Agreement;
5.6
the choice of English law to govern the Agreement is a valid choice of law according to the laws of
England as to conflict of laws [and the submission of the Borrower [and the Initial Guarantors] to
the non-exclusive jurisdiction of the Courts of England is a valid submission to that jurisdiction
according to English law].
6.
Reservations
Our reservations are as follows:
6.1
We express no opinion as to any law other than English law in force at and as interpreted at the
date of this opinion. We are not qualified to, and we do not, express an opinion on the laws of any
other jurisdiction. [In particular, we have not independently investigated the laws of [specify other
relevant country or state] for the purpose of this opinion or in connection with the Agreement or the
Page 46 of 179
transactions contemplated by it and as to such matters we have relied exclusively on the opinion of
[specify lawyers of relevant jurisdiction].
6.2
We express no opinion as to any document other than the Agreement.
6.3
The expression “valid and binding” in paragraph 4.2 above means that the obligations expressed to
be assumed under the Agreement are of a type which the English courts will treat as valid and
binding. It does not mean that these obligations will necessarily be enforced in all circumstances in
accordance with their terms, as to which reference is made to the other reservations expressed in
this letter.
6.4
We express no opinion as to whether any equitable remedies, and in particular an order for specific
performance or an injunction, would be available in respect of any of the obligations of the
Borrower [ any Initial Guarantor] as set out in the Agreement or whether any specific remedy, other
than monetary damages, would be available.
6.5
The obligations of the Borrower [and each Initial Guarantor] under the Agreement will be subject to
any laws from time to time in effect relating to bankruptcy insolvency liquidation administration
reorganisation or any other laws or other legal or equitable remedies affecting generally the
enforcement of creditors’ rights.
6.6
An English court would not give effect to obligations of the Borrower as set out in Clause [ ] of the
Agreement (Default Interest) providing for the payment by the Borrower of interest on overdue
amounts if the amount expressed as being payable were a penalty or in the nature of a penalty.
6.7
The undertaking and indemnity contained in Clause [ ] of the Agreement (Duties) may be void in
respect of stamp duties payable in the United Kingdom.
6.8
Clause [ ] of the Agreement (concerning partial payments) may not be effective to exclude any
appropriation made by the Borrower.
6.9
We express no opinion with respect to the enforceability in all circumstances of Clause [ of the
Agreement (Sharing Payments).
6.10
Although Clause [ ] of the Agreement (Waivers amendments and consents) contemplates written
waivers or consents, an agreement may be varied amended or discharged by a further agreement
or a collateral agreement which may be effected by an oral agreement or a course of dealing.
Page 47 of 179
6.11
Clause [ ] of the Agreement (Severance) may not be effective under English law.
6.12
Any determination or certificate made or given pursuant to any provision of the Agreement which
provides for such determination or certificate to be final conclusive or binding might be held under
English law not to be final conclusive or binding if such determination or certificate could be shown
to have been incorrect unreasonable or arbitrary or not to have been given or made in good faith.
6.13
Where any obligations are to be performed or observed in a jurisdiction outside England, they may
not be enforceable under English law if and to the extent that such performance or observance
would be unlawful unenforceable or contrary to public policy under the laws of such jurisdiction.
6.14
As regards jurisdiction, an English court may stay proceedings if concurrent proceedings are being
brought elsewhere.
6.15
An English court may not give effect to a purported obligation to pay another party’s litigation costs
and may make its own order as to costs.
6.16
Whilst English courts would have power to give judgment expressed as an order to pay a currency
other than pounds sterling and are normally prepared to do so, they may decline to do so in their
discretion and may not enforce the benefit of currency conversion and indemnity clauses.
6.17
Claims may become barred under the Limitation Acts or may be or become subject to defences of
set-off or counterclaim.
6.18
The enforcement of the rights and obligations of the parties to the Agreement may be limited by the
provisions of English law concerning frustration of contracts.
6.19
Without limiting any other assumption or reservation made in this opinion, we have not investigated
whether the Borrower [and any Initial Guarantor] is or will by reason of the execution of, or the
transactions contemplated by, the Agreement or any document referred to in the Agreement be in
breach of any of its obligations under any licence authorisation consent agreement or document.
6.20
We express no opinion as to the tax treatment or consequences of the Agreement or the
transactions contemplated by it.
This opinion is given to [name of Agent] for the sole benefit of itself and the Banks [ party to the
Agreement and for the purpose of the Agreement. [It is given on condition that it is governed by and
shall be construed in accordance with English law and that any action arising out of it is subject to the
Page 48 of 179
exclusive jurisdiction of the English courts.] It may not be delivered to nor relied upon by any other
person or for any other purpose nor is it to be quoted or referred to in any document or filed with any
person, except in any case with our prior written consent.
Yours faithfully
B. SECURITY
ENGLISH LEGAL OPINION
To: [ Agent Bank]
[Date]
for itself and as agent for
the Banks referred to below
[which are original parties to the Agreement]
Dear Sirs
We have acted as English legal advisers to the Agent in connection with the Facility Agreement (the
“Agreement”) dated
and made between (1)
(as Borrower), [(2)
(as Lead Managers),] (3) the Banks as therein defined
and (4)
as Agent, whereby the Banks have severally agreed to make available
to the Borrower a loan facility in the maximum aggregate principal amount of
on and subject to the terms and conditions therein contained.
Expressions defined in the Agreement have the same respective meanings when used in this opinion.
7.
Documents
For the purposes of this opinion, we have examined:
Page 49 of 179
7.1 a copy of the Agreement in the form signed by the parties to it;
7.2 other specific documents;
7.3 a certified copy of the certificate of incorporation and the memorandum and articles of association of
the Borrower [and each Initial Guarantor];
7.4 certified copies of resolutions passed at a meeting of the board of directors of the Borrower [ each
Initial Guarantor] [ a resolution passed by the members of each Initial Guarantor in general meeting held on
1 relating to the Agreement [and related matters];
7.5 such other documents as we have considered appropriate for the purposes of this opinion.
8.
Assumptions
For the purposes of this opinion we have assumed without investigation:
8.1 the authenticity and completeness of all documents submitted to us as originals or copies, the
genuineness of all signatures and the conformity to original documents of all copies [and the accuracy of all
translations];
8.2 the capacity power and authority of each of the parties (other than the Borrower [and the Initial
Guarantors]) to the Agreement [and any Transfer Certificate];
8.3 the due execution and delivery of the Agreement [and any Transfer Certificate], in compliance with all
requisite corporate authorisations, by each of the parties to it other than the Borrower [and the Initial
Guarantors];
8.4 that the Memorandum and Articles of Association of the Borrower [and each Initial Guarantor] in the
form certified by an officer thereof and delivered as a condition precedent under the Agreement were true
complete and up to date as at the date of the Agreement and the date of this opinion;
8.5 that the resolutions of the board of directors of the Borrower [and each Initial Guarantor] certified by an
officer thereof and delivered as a condition precedent under the Agreement were duly passed at properly
convened meetings of duly appointed directors of [the Borrower/each such company] at which a quorum
was present throughout, have not been amended or rescinded and are in full force and effect;
Page 50 of 179
8.6 that any provisions of the Borrower’s Articles of Association which limit its directors’ authority to borrow
[and any provisions of any Initial Guarantor’s Articles of Association which limit its directors’ authority to
guarantee third parties’ obligations] have been, and will be, observed;
8.7 that the list of authorised signatories of the Borrower [and each Initial Guarantor] certified by an officer
thereof and delivered as a condition precedent under the Agreement is correct;
8.8 that [the Borrower has not/neither the Borrower nor any Initial Guarantor has] passed a voluntary
winding-up resolution, no petition has been presented or order made for the winding-up dissolution or
administration of [the Borrower/any such company] and no receiver administrative receiver administrator or
similar officer has been appointed in relation to [the Borrower/any such company] or any of [its/their
respective] assets;
8.9 that the execution and delivery of the Agreement by [each of] the Borrower [and the Initial Guarantors]
was a proper use of [its/their respective directors’ powers and in [ best interests and that the exercise of
[its/their respective] rights and performance of [ respective] obligations thereunder will be of material
commercial benefit to the Borrower [and, as the case may be, each of the Initial Guarantors] [and that,
immediately after the execution of the Agreement, each Initial Guarantor was solvent];]
8.10 that the choice of English law to govern the Agreement was made for bona fide purposes;
8.11 that there are no provisions of the laws of any jurisdiction outside England which would be
contravened by the execution delivery or performance of the Agreement and that, in so far as any
obligation under the Agreement falls to be performed in any jurisdiction outside England, its performance
will not be illegal or adversely affected by virtue of the laws or regulations of or applicable in that
jurisdiction.
9.
Opinion
Based upon and subject to the foregoing, and subject to the reservations mentioned below and to any
matters not disclosed to us, we are of the opinion that:
9.1 the Borrower [ each Initial Guarantor] is a company duly incorporated in England with power to
execute deliver and exercise its rights and perform its obligations under the Agreement and such execution
delivery and performance have been duly authorised by appropriate corporate action;
9.2 the Agreement constitutes a valid and binding agreement under English law;
Page 51 of 179
9.3 the execution, delivery and performance by the Borrower [and the Initial Guarantors] of the Agreement
and the transactions contemplated by it will not violate any existing laws of England;
9.4 no authorisations approvals consents licences exemptions filings or registrations of or with any
governmental or public bodies or authorities of or in England are required in connection with the execution
delivery or performance of the Agreement or for the Agreement to be valid and binding;
9.5 no stamp duty or similar document taxes are payable in England on the Agreement;
9.6 the choice of English law to govern the Agreement is a valid choice of law according to the laws of
England as to conflict of laws [and the submission of the Borrower [and the Initial Guarantors] to the nonexclusive jurisdiction of the Courts of England is a valid submission to that jurisdiction according to English
law].
9.7 Subject to timely registration where required, the [Security] creates a security interest over the property
assets and rights [OR: specific property] owned by [the Borrower] at the date of execution and delivery of
the Charge and expressed to be mortgaged or charged by it.
10.
Reservations
Our reservations are as follows:
10.1 We express no opinion as to any law other than English law in force at and as interpreted at the date
of this opinion. We are not qualified to, and we do not, express an opinion on the laws of any other
jurisdiction. [In particular, we have not independently investigated the laws of [specify other relevant country
or state] for the purpose of this opinion or in connection with the Agreement or the transactions
contemplated by it and as to such matters we have relied exclusively on the opinion of [specify lawyers of
relevant jurisdiction].
10.2 We express no opinion as to any document other than the Agreement.
10.3 The expression “valid and binding” in paragraph 4.2 above means that the obligations expressed to
be assumed under the Agreement are of a type which the English courts will treat as valid and binding. It
does not mean that these obligations will necessarily be enforced in all circumstances in accordance with
their terms, as to which reference is made to the other reservations expressed in this letter.
10.4 We express no opinion as to whether any equitable remedies, and in particular an order for specific
performance or an injunction, would be available in respect of any of the obligations of the Borrower [ any
Page 52 of 179
Initial Guarantor] as set out in the Agreement or whether any specific remedy, other than monetary
damages, would be available.
10.5 The obligations of the Borrower [and each Initial Guarantor] under the Agreement will be subject to
any laws from time to time in effect relating to bankruptcy insolvency liquidation administration
reorganisation or any other laws or other legal or equitable remedies affecting generally the enforcement of
creditors’ rights.
10.6 An English court would not give effect to obligations of the Borrower as set out in Clause [ ] of the
Agreement (Default Interest) providing for the payment by the Borrower of interest on overdue amounts if
the amount expressed as being payable were a penalty or in the nature of a penalty.
10.7 The undertaking and indemnity contained in Clause [ ] of the Agreement (Duties) may be void in
respect of stamp duties payable in the United Kingdom.
10.8 Clause [ ] of the Agreement (concerning partial payments) may not be effective to exclude any
appropriation made by the Borrower.
10.9 We express no opinion with respect to the enforceability in all circumstances of Clause [ of the
Agreement (Sharing Payments).
10.10 Although Clause [ ] of the Agreement (Waivers amendments and consents) contemplates written
waivers or consents, an agreement may be varied amended or discharged by a further agreement or a
collateral agreement which may be effected by an oral agreement or a course of dealing.
10.11 Clause [ ] of the Agreement (Severance) may not be effective under English law.
10.12 Any determination or certificate made or given pursuant to any provision of the Agreement which
provides for such determination or certificate to be final conclusive or binding might be held under English
law not to be final conclusive or binding if such determination or certificate could be shown to have been
incorrect unreasonable or arbitrary or not to have been given or made in good faith.
10.13 Where any obligations are to be performed or observed in a jurisdiction outside England, they may
not be enforceable under English law if and to the extent that such performance or observance would be
unlawful unenforceable or contrary to public policy under the laws of such jurisdiction.
Page 53 of 179
10.14 As regards jurisdiction, an English court may stay proceedings if concurrent proceedings are being
brought elsewhere.
10.15 An English court may not give effect to a purported obligation to pay another party’s litigation costs
and may make its own order as to costs.
10.16 Whilst English courts would have power to give judgment expressed as an order to pay a currency
other than pounds sterling and are normally prepared to do so, they may decline to do so in their discretion
and may not enforce the benefit of currency conversion and indemnity clauses.
10.17 Claims may become barred under the Limitation Acts or may be or become subject to defences of
set-off or counterclaim.
10.18 The enforcement of the rights and obligations of the parties to the Agreement may be limited by the
provisions of English law concerning frustration of contracts.
10.19 Without limiting any other assumption or reservation made in this opinion, we have not investigated
whether the Borrower [and any Initial Guarantor] is or will by reason of the execution of, or the transactions
contemplated by, the Agreement or any document referred to in the Agreement be in breach of any of its
obligations under any licence authorisation consent agreement or document.
10.20 We express no opinion as to the tax treatment or consequences of the Agreement or the
transactions contemplated by it.
10.21 It is beyond the scope of this opinion to deal comprehensively with matters concerning property
assets and rights expressed to be subject to the Charge and priority nature registration and enforcement of
the Charge and its effectiveness in all circumstances. In particularly, we express no opinion in this letter as
to any of the following matters:
10.21.1 The existence of, or the title of [the Borrower] to, or the marketability or value of, any of
the property assets or rights expressed to be subject to the Charge;
10.21.2 the priority of any security or whether any property assets or rights expressed to be
subject to the Charge are or may become subject tot any equities rights or interests in
favour of any other person, in priority to the Charge or otherwise;
Page 54 of 179
10.21.3 whether the Charge creates effective security in respect of any property assets or rights
outside Wales and England;
10.21.4 whether the Charge creates effective security in respect of cash or credit balances of [the
Borrower] with [the Bank/any of the Banks];
10.21.5 the nature of the security created by the Charge, whether fixed or floating (and in
particular charges may only take effect as floating charges);
10.21.6 whether statutory preferences, fixed charges, liens, preferential creditors, title retention
arrangements or priorities arising by operation of law may effectively rank ahead of the
Charge or certain provisions of ot;
10.21.7 whether [the Borrower] is solvent immediately following creation of the Charge and
whether the Charge is or may at any time prove to have been created at a relevant time
prior to the presentation of a petition for an administration order in relation to, or the
commencement of the winding up of, [the Borrower] so that it may be void or voidable or
otherwise affected by any order of a court under any insolvency laws;
10.21.8 whether the floating charge comprised in the Charge is or may at any time prove to be
wholly or partly invalid as having been created at a relevant time prior to the presentation
of a petition for an administration order in relation to, or a commencement of the windingup of [the Borrower].
10.22 The Insolvency Act 1986 prohibits certain steps being taken except with the leave of the court (or,
where an administration order is in force, the administrator) against a company after the presentation of a
petition for an administration order. This prohibition continues if an administration order is made for so long
as it is in force. Prohibited steps include steps taken to enforce any security over the company’s property,
the commencement or continuation of proceedings or execution or other legal process or the levying of
distress against the company or its property and, where an administration order is in force, the appointment
of an administrative receiver.
10.23 Where the Charge is expressed to create security over debts owing from, or contractual or other
rights against, third parties, these are subject to the rights of the third parties concerned and may be invalid
if the terms of such debts or rights do not permit them to be charged or assigned.
10.24 A floating charge is more vulnerable than a fixed charge both to being set aside in a liquidation or
administration and to losing its priority to other rights and interests. A floating charge will take effect subject
to third party concerned (including rights of set-off) unless the third party concerned had express notice that
a term in the Charge prohibited the type of transaction to which that person is a party or that the floating
Page 55 of 179
charge will also take effect subject to any execution or attachment completed before crystallization and to
any distress levied before crystallization. An administrator has wider powers to sell assets subject to a
floating charge than assets subject to a fixed charge.
10.25 The enforcement of security interests is subject to certain rules of law; for example, a person who
holds a charge over property cannot sell the property to himself and owes a duty to take reasonable care to
realise the property for a proper price.
10.26 We express no opinion as to whether [the Borrower] is in compliance with United Kingdom or
European Union requirements concerning safety at work, protection of the environment or similar matters
or as to any potential liability of [the Bank/any of the Banks/ any security trustee for the Banks] as
mortgagees for any loss or damage resulting from or arising out of the failure by [the Borrower] to comply
with any such requirements.
This opinion is given to [name of Agent] for the sole benefit of itself and the Banks [ party to the
Agreement and for the purpose of the Agreement. [It is given on condition that it is governed by and
shall be construed in accordance with English law and that any action arising out of it is subject to the
exclusive jurisdiction of the English courts.] It may not be delivered to nor relied upon by any other
person or for any other purpose nor is it to be quoted or referred to in any document or filed with any
person, except in any case with our prior written consent.
Yours faithfully
NOTICE OF OBJECTION OF ATTACHMENT:
REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT ……
CIVIL SUIT NO. OF 2014.
KET WANG’I===============================================PLAINTIFF
-VERSUSSILALII MASKIO==========================================DEFENDANT
AND
NIKO RADA=====================================OBJECTOR
NOTICE OF STAY OF EXECUTION ORDER…. RULE 54.
To
Page 56 of 179
Acha za Ovyo& Co. Advocates
Sifa House
Ksl
Omera Auctioneers
P.O Box ,
Rongai.
TAKE NOTICE that the Objector herein has filed objection in respect of the proclamation
and/or attachment pursuant to a decree of this Honourable court.
It is HEREBY ORDERED that there be stay of execution proceedings herein and more
particularly there be stay of attachment of all HOUSE HOLD GOODS proclaimed on …………...
DATED at KSL this _______ day of ___________________, 2014.
GIVEN under my hand and SEAL of the court at KSL this ____ day of __________, 2014.
………………….………………………
SENIOR PRINCIPAL MAGISTRATE
CLAS F COURT.
Page 57 of 179
REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT KSL.
CIVIL SUIT NO. OF 2014.
KET WANG’I===============================================PLAINTIFF
-VERSUSSILALII MASKIO==========================================DEFENDANT
AND
NIKO RADA=====================================OBJECTOR
NOTICE OF STAY OF EXECUTION ORDER RULE 54
TO THE ATTACHING CREDITOR
OMERA Auctioneers
P.O Box ,
KSL.
WHEREAS THE Objector has lodged objection to the proclamation and attachment of ALL
HOUSEHOLD GOODS.
AND HAS exhibited documents in support of the objection; you are therefore COMMANDED NOT to
proceed with attachment and/or sale of the same until further orders of this court.
DATED at KSL this _______ day of ___________________, 2011.
GIVEN under my hand and SEAL of the court at KSL this ____ day of __________, 2011.
………………….………………………
SENIOR PRINCIPAL MAGISTRATE
CLASS F COURT.
To
Acha za Ovyo& Co. Advocates
Sifa House,
KSL
WHEREAS a Notice of Objection has been filed on the ____ day of _______________, 2011 by Messrs
……& CO. ADVOCATES on behalf of the above-named objection whereof is attached hereto.
YOU ARE HEREBY REQUIRED within 15 DAYS (fifteen days) from the date of service of this notice
upon you to intimate to this court in writing whether you propose to proceed with the attachment of all or
part of the goods attached in execution of the decree herein and more specifically referred to in the said
Notice of Objection.
Page 58 of 179
DATED at KSL this _______ day of ___________________, 2011.
GIVEN under my hand and SEAL of the court at KSL this ____ day of __________, 2011.
………………….………………………
SENIOR PRINCIPAL MAGISTRATE
CLASS F COURT.
NOTICE OF PRELIMINARY OBJECTION:
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL.
CIVIL SUIT NO. OF 2014.
======================================1ST PLAINTIFF
-VERSUS======================================1ST DEFENDANT
NOTICE OF PRELIMINARY OBJECTION ON POINTS OF LAW.
TAKE NOTICE that the Defendants are taking objection to the hearing and determination of the
Plaintiff’s applications by Notice of Motion dated ………………, for the following grounds:1. THAT the said application is in flagrant and incurable breach of Section 5 of the
Judicature Act.
2. THAT the said application is in any event premature and therefore a non-starter.
3. THAT the Applicant in the said application, one ……………, doesn’t have a right audience
before the court in the said application.
DATEDat KSL this
___
day of
, 2011.
_____________________________
CHAP CHAP& CO ADVOCATES
FOR THE DEFENDANTS
DRAWN & FILED BY:
CHAP CHAP& COMPANY
ADVOCATES
, 2ND FLOOR
P.O. BOX
Page 59 of 179
TO BE SERVED UPON:
AMENDED DEFENCE AND COUNTERCLAIM:
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO.
GGGG BANK LIMITED....
..
..
OF 2000
..
..
.PLAINTIFF
-VERSUSBBB HIGH LIMITED..
..
..
..
..
1ST DEFENDANT
DDDDDDDDDDDDDDDDD.. ..
..
..
.2ND DEFENDANT
LLLLLLLLLLLLLLLLLLL..
..
..
3RD DEFENDANT
..
DEFENCE AND COUNTER-CLAIM OF THE 1ST , 2ND AND 3RD DEFENDANTS
1.
Save as is expressly admitted hereinabove the Defendants deny each and every
allegation contained in the Plaint as if the same were set out herein verbatim and
traversed seriatim.
2.
The Defendants admit paragraphs 1, 2, 3 and 4 of the Plaint in so far as the same
are merely descriptive of the parties to this suit save that the Defendants address
for service for the purposes of this suit is care of KK & Company Advocates, P.O.
Box ,,,,,,,,,, Nairobi.
3.
Before or at the hearing of this suit, the Defendants will raise a preliminary
objection on a point of law, to be determined in limine, to the effect that this suit
is bad in law, does not lie, is misconceived and should be struck out on the
ground that the deponent of the Verifying Affidavit has no knowledge and/or
Page 60 of 179
information concerning the suit and as such, he cannot swear positively to the
facts alleged in the Plaint.
4.
In response to paragraphs 5, 6 and 7 of the Plaint, the Defendants aver that the
2nd and 3rd Defendants and one NNNN as Directors of the 1st Defendant
approached the Plaintiff in or about October, 1996 with a view to:
a) Opening an account with the said Bank
b) Eventually applying for and obtaining such credit facilities as the Defendant
Company would from time to time require for its business operations.
5.
Pursuant thereto, in or about the week of 25th October, 1996, the 2nd and 3rd
Defendants together with NNNNNNN aforesaid visited the premises of the
Plaintiff at LLe Building, Moi Avenue Nairobi, wherein the following matters
transpired:
a) The 2nd and 3rd Defendants and MMM met up with Mr. AAA, the then
Chairman of the Plaintiff bank for the purposes of discussing the 1 st
Defendant's intended custom with the Plaintiff Bank.
b) The 2nd and 3rd Defendants and NNNN appraised Mr. AAAA, the then
Chairman of the Plaintiff bank as to the banking needs of the 1 st Defendant
and further expressed the 1st Defendant's interest in opening a Current
Account with the Plaintiff for purposes of transacting banking business.
c) In the course of discussions referred to in (b) above, the 2nd and 3rd
Defendants and NNNN indicated that the 1st Defendant would from time to
time, require credit facilities by way of an Overdraft for the purpose of
running the 1st Defendant's business operations.
Page 61 of 179
d) After extensive discussions on the aforesaid matters, the said Mr. Ajay Shah
agreed to grant the 1st Defendant a facility in the sum of Kshs. 20,000,000.00 to
be secured by a cash deposit of Kshs. 14,000,000.00. The said Ajay Shah
indicated to the 2nd and 3rd Defendants and Mr. NNNN D.NNNN that they
would have to sign personal guarantees in favour of the Bank. Further, the
said Ajay Shah presented to the 1st and 2nd Defendants and NNNN D.NNNN
the following documents:
i)
A set of General Terms and Conditions intended to govern the
relationship between the Plaintiff and its new customers, namely, the
1st Defendant. The said General Terms and Conditions contained thirty
(30) Clauses and ran to four (4) pages. The 2nd and 3rd Defendants and
NNNN D.NNNN were required to sign at the bottom of the fourth
(4th) page of the said set of documents in acceptance of the terms and
conditions set out therein. Annexed to the said General Terms and
Conditions was another page headed " Guarantee and Indemnity by
the Directors in their Personal Capacity for Limited Company"
(hereinafter referred to as " the said Guarantee").
e) Upon conclusion of the aforesaid discussions between Mr. Ajay Shah
representing the Plaintiff and
the 2nd and 3rd Defendants and NNNN
D.NNNN representing the 1st Defendant Company, the 1st Defendant, on 28th
October, 1996 was allocated Account Number 55719-01 after the 2nd and 3rd
Defendants and NNNN D.NNNN having appended their signatures at the
bottom of the last (fourth) page of the aforesaid General Terms and
Conditions in acceptance thereof. However, although the said General Terms
and Conditions were surrendered to the Plaintiff on 28th October, 1996, the
Plaintiff inserted the 26th day of October, 1996 as the date of execution.
Page 62 of 179
f) In appending their signatures however, the 2nd and 3rd Defendants and
NNNN D.NNNN mistakenly appended the same at the bottom of the said
Guarantee instead of at the requisite places at the bottom of the last (fourth)
page of the General Terms and Conditions.
g) The 2nd and 3rd Defendants aver that they appended their signatures at the
bottom of the said Guarantee in the honest but mistaken belief that they were
appending their signatures at the requisite places of the General Terms and
Conditions.
h) In the foregoing circumstances, the 2nd and 3rd Defendants aver that the
execution of the said guarantee is not their deed and accordingly invoke and
rely on the principle of non es facto for its full meaning term and effect.
i) Further, the Defendants aver that as no credit facilities had been negotiated or
agreed upon at the material time, the 2nd and 3rd Defendants and NNNN
D.NNNN had not and could not possibly have executed the said Guarantee.
j) In view of the foregoing, the 2nd and 3rd Defendants, respectively, aver
that the execution of the said Guarantee instead of the General Terms and
Conditions was not their deed as the same was as consequence of a
mutual mistake of fact between Mr. Ajay Shah on behalf of the Plaintiff on the
one hand and the 2nd and 3rd Defendants and NNNN D.NNNN on behalf of
the 1st Defendant on the other hand. In any event, the Defendants aver as
follows:i) On
19th November, 1996 the Plaintiff wrote to the 2nd and 3rd
Defendant and the said NNNN D.NNNN requesting them to execute
alleged Personal Guarantees which had never been received by either
the 2nd or
3rd Defendant and/or the said NNNN D.NNNN. The
Page 63 of 179
Plaintiff further sent reminders on 6th March 1997 and 7th April 1997
requesting them to execute the same. At this point, the 3rd Defendant
spoke to the Plaintiff's then Manager
Mr. Vinod Chaudry on
telephone and informed him that the alleged Personal Guarantees had
never been received by any of the Directors of the 1st Defendant.
Accordingly, d. uring same telephone conversation, the said Mr. Vinod
Chaudry agreed to resend the said Personal Guarantees.
ii)
Subsequently, on 23rd December, 1996 the 1st Defendant forwarded to
the Plaintiff a cheque in the sum of Kshs. 14,000,000.00 as cash security
as agreed upon during the meeting aforesaid between Mr. Ajay Shah
representing the Plaintiff and the 2nd and 3rd Defendants and NNNN
D.NNNN representing the 1st Defendant.
iii)
Thereafter,
vide
a
letter dated
21st August 1997,
the Plaintiff,
pursuant to the aforesaid telephone conversation, sent to the 3rd
Defendant,
the said Personal Guarantees
which were headed "
Guarantee and Indemnity (Individual Guarantee)". In the said letter,
the Plaintiff also requested the 1st Defendant to provide the following:
 a Board resolution authorising the 1st Defendant to borrow
 a letter of lien in the name of a third party
 a duly executed Letter of Offer
 duly executed Personal Guarantees of the directors of the 1st
Defendant
 duly executed Credit Agreement
iv)
The Defendants never forwarded any of the
foregoing documents to
the Plaintiff nor did they ever execute the said Personal Guarantee
Forms
Page 64 of 179
v)
n)
Accordingly, in mid September 1997, the said Mr. Vinod Chaudry
called the 3rd Defendant requesting her to forward the duly executed
documents as outlined in
5(j) (iii) above. However, as the
said
documents had not been executed, the 3rd Defendant informed the said
Mr. Vinod Chaudry that she was not in a position to forward the
same.Further, during the said telephone conversation, the 3rd Defendant
instructed the said Mr. Vinod Chaudry to utilise the cash security by
reflecting it in the current account to bring down the then
outstanding
overdraft.
vi)
vi)
Subsequently, by a letter dated 28th November, 1997 the Plaintiff,
once again, requested the 2nd and 3rd Defendants and the said NNNN
D.NNNN to forward the duly executed Personal Guarantees together
with other documents as aforesaid.
vii)
The Defendants
aver
that to date,
neither
the
duly
executed
Guarantees nor the aforesaid documents have ever been forwarded
to the Plaintiff.
Accordingly, the Defendants shall at the hearing of this suit, crave the leave of the
Honourable Court to refer to and rely on the relevant correspondence emanating from
the Plaintiff and calling for the duly executedPersonal Guarantees from , inter alia,
the 2nd and 3rd Defendants, including its letters dated 25th October, 1996, 6th March
1997, 7th April 1997, 21st August 1997 and 28th November, 1997 respectively, as well as
the original unexecuted Personal Guarantee forms forwarded under cover of the
aforesaid letter dated 21st August, 1997.
viii)
Pursuant
they
ever
to the foregoing, the
entered
into
2nd and 3rd Defendants
or
Page 65 of 179
executed
any
or
deny
any
of
that
the
allegedPersonal Guarantees dated 13th December 1996 in favour of the
Plaintiff. In the circumstances, the Defendants aver that the purported
Personal Guarantees sought to be relied upon by the Plaintiff have
been fraudulently procured by the Plaintiff for the following reasons:-
The 2nd and 3rd Defendants, respectively, never agreed to
grant any Personal Guarantees in favour of the Plaintiff either
for an aggregate liability of Kshs. 50,000,000.00 as alleged or at
all.
-
The 2nd and 3rd Defendants never executed any Personal
Guarantees in favour of the Plaintiff either for
an aggregate
liability of the said sum of Kshs. 50,000,000.00 as alleged or at all.
-
The 2nd and 3rd Defendants never executed any Personal
Guarantees dated 13thDecember 1996 either as alleged or at all.
-
In any event,
the purported Personal Guarantees sought to be
relied upon by the Plaintiff are purportedly dated 13thDecember
1996 whereas subsequent thereto, in the year 1997, the Plaintiff kept
sending reminders to the 2nd and 3rd Defendants to return to the
Plaintiff the duly executed Personal Guarantee forms.
-
The only Personal Guarantees ever forwarded by the Plaintiff to the
2nd and 3rd Defendants for execution have never been executed and
neither have the same ever been returned to the Defendants duly
executed or otherwise.
ix)
In the premises the 2nd and 3rd Defendants, respectively, aver that for
the foregoing reasons, the purported Personal Guarantees are
void
and unenforceable
as
against
them
for
all
null,
purposes.
Consequently, the 2nd and 3rd Defendants further aver that they are e
not liable to the Plaintiff for the said sum of Kshs.50,000,000.00 either as
Page 66 of 179
alleged or at all. Further, any action against the 2nd and 3rdDefendants,
respectively, on the Purported Guarantees cannot, for the foregoing
averments, lie.
6.
IN THE ALTERNATIVE AND WITHOUT ANY PREJUDICE WHATSOEVER
to any of the foregoing, the Defendants aver that the only ‘Guarantee’ ever
executed by the 2nd and 3rd Defendant respectively, was the Guarantee headed
“Guarantee and Indemnity by the Directors in their personal capacity for a
Limited Company”(“the said Guarantee”) which was annexed to the General
Terms and Conditions aforesaid. In any event, the 2nd and 3rd Defendants
aver that the execution of the said Guarantee was procured by fraudulent
misrepresentation made by the Plaintiff to the 2nd and 3rd Defendants and a Mr.
NNNN D.NNNN.
ULENT MISREPRESENTATION
a)
Well knowing that the mutual agreement at that point in time was to
append their signatures to the General Terms and Conditions only, Mr.
Ajay Shah presented to the 2nd and 3rd Defendants and NNNN D.NNNN
a blank guarantee form representing that the same was no more than the
last page of the General Terms and Conditions and requiring the 2nd and
3rd Defendants and NNNN D.NNNN to append their signatures thereto.
b)
Well knowing that no credit facilities had been negotiated or the terms
thereof agreed upon, presenting the 2nd and 3rd Defendants and NNNN
D.NNNN with a blank guarantee form representing that the same was no
more than the last page of the General Terms and Conditions and
requiring the 2nd and 3rd Defendants and NNNN D.NNNN to append
their signatures thereto.
Page 67 of 179
c)
Presenting the 2nd and 3rd Defendants and NNNN D.NNNN with a blank
guarantee form representing that the same was no more than the last page
of the General Terms and Conditions and requiring the 2nd and 3rd
Defendants and NNNN D.NNNN to append their signatures thereto well
knowing that the Plaintiff had not provided any consideration in any way
whatsoever to the 1st Defendant.
d)
Well knowing that the 2nd and 3rd Defendants and NNNN D.NNNN had
not agreed to provide any personal guarantees, presenting the 2 nd and 3rd
Defendants and NNNN D.NNNN with a blank guarantee form
representing that the same was no more than the last page of the General
Terms and Conditions and requiring the 2nd and 3rd Defendants and
NNNN D.NNNN to append their signatures thereto.
The 2nd and 3rd Defendants accordingly pray that this Honourable Court do
award damages for fraudulent misrepresentation.
7.
The 2nd and 3rd Defendants, respectively further aver that in any event, the
said Guarantee is in all material respects different in form and substance, from
the Personal Guarantees sought to be relied upon by the Plaintiff and enforced as
against them for reasons, inter alia, : a)
The said Guarantee is dated 26th October 1996 whereas the purported
Personal Guarantees are dated 13th December, 1996
b)
The said Guarantees does
not stipulate
any
or
the
2nd and 3rd
Defendants purported aggregate maximum liability thereunder as
K.Shs.50,000,000.00 either as alleged or at all.
c)
The said Guarantee runs upto four pages whereas the purported Personal
Guarantees sought to be relied upon by the Plaintiff run upto 7 pages.
8.
On account of the foregoing matters, the 2nd and 3rd Defendants aver that:
Page 68 of 179
a)
they did not execute, and neither did they intend to grant any Personal
Guarantees to the Plaintiff.
b)
the said Personal Guarantees purportedly executed by the 2nd and 3rd
Defendants are null and void and unenforceable for all purposes.
c)
the 2nd and 3rd Defendants are not liable under the said Personal
Guarantees either as alleged or at all.
d)
A declaration ought to be issued by this Honourable Court to the effect
that the purported guarantee is not only null and void and unenforceable,
but that the same should be discharged and set aside.
9.
The 1st Defendant denies that it is indebted to the Plaintiff in the sum of Kshs.
94,869,743.60 with interest thereon at the rate of 25% per annum as alleged or at
all and puts the Plaintiff to strict proof thereof. Without prejudice whatsoever to
the foregoing, the 1st Defendant avers that:
a) The alleged interest charged by the Plaintiff had never been agreed upon as
between the Plaintiff and the 1st Defendant;
b) In any event, the said rate
of interest
is excessive, oppressive,
unconscionable and therefore unenforceable in law;
c) The amount claimed includes interest which is unmaintainable in law and the
1st Defendant prays that account be taken and a declaration be issued by this
Honourable Court to the effect that a proper account be furnished by the
Plaintiff.
10.
In response to paragraph 10 of the Plaint, the 2nd and 3rd Defendants aver that in
view of the matters pleaded hereinabove, they could not act on any of the letters
of demand served on them by the Plaintiff. The 2nd and 3rd Defendants deny in
toto that any guarantee ever crystallised as against them and put the Plaintiff to
strict proof thereof.
11.
The jurisdiction of the Honourable Court is admitted.9
Page 69 of 179
12.
In view of the foregoing matters, the Defendants aver that the Plaintiff is not
entitled to any of the reliefs sought in the Plaint or at all. Further the Defendants
aver that for the foregoing reasons no action can lie against the Defendants either
on the purported Guarantees or at all.
1.
COUNTERCLAIM
13. The Defendants repeat and reiterate the contents paragraphs 2 to 12 hereinabove.
14. The Defendants aver that Mr. Ajay Shah representing the Plaintiff fraudulently
procured from the 2nd and 3rd Defendants the signatures appended by the 2nd and
3rd Defendants on the said Guarantee. In this regard, the Defendants reiterate the
entire particulars of Fraudulent Misrepresentation as set out in paragraph 6
above.
And
the
Defendants
claim
damages
against
the
Plaintiff
for
fraudulent
misrepresentation.
11.
The Defendants aver that the Plaintiff fraudulently procured, through means
unknown to the Defendants, the 2nd and 3rd Defendants signatures and had the
same endorsed on the purported Personal Guarantees.
And the Defendants claim damages against the Plaintiff for fraud.
12.
The Plaintiff has charged interest that has neither been agreed upon nor
acceptable in commercial practice. The Defendants aver that the rate charged is
excessive, oppressive, unconscionable and the same therefore not maintainable
in law.
Accordingly, the Defendants pray the a declaration be granted that a proper account be
furnished.
13.
By reason of the foregoing matters, the Defendants have suffered loss and
damage.
Page 70 of 179
14.
The Defendants aver that there is no other suit and there have been no previous
proceedings in any Court between the Plaintiff and the Defendant in respect of
thesubject matter of this suit.
REASONS WHEREFORE the Defendants pray:-
2.
a)
That this Honourable Court do find and declare that:-
The 2nd and 3rd Defendants , respectively, never agreed execute any Personal
Guarantees in favour of the Plaintiff.
b)
The 2nd and 3rd Defendants, respectively, never executed any or the Personal
Guarantees dated 13th December, 1996 in favour of the Plaintiff.
c)
The purported Personal Guarantees dated 13th December, 1996 were
fraudulently procured by the Plaintiff
d)
The purported Personal Guarantees dated 13th December, 1996 are in all the
circumstances of this case,
null , void and unenforceable against the 2 nd
and 3rd Defendants, respectively.
e)
The
execution of the
Guarantee
annexed
to the General
Terms and
Conditions on 26th October, 1996 (“the said Guarantee”) was not a deed of
the 2nd and 3rd Defendants, respectively.
f)
The said Guarantee is therefore null, void and unenforceable for all purposes.
3.
That General Damages be awarded to the 2nd and 3rd Defendants for the Plaintiff’s
fraudulent misrepresentation.
4.
That this Honourable court do order the Plaintiff to render to the 1 st Defendant,
a true, full and comprehensive account.
5.
That the Plaintiff’s suit against the Defendants be dismissed with costs to the
Defendants for such period of time and at such rate as the Court may
determine.
Page 71 of 179
6.
That the
Defendants be awarded the costs of the Counter-claim together with
interest thereon at such rate and for such period of time as this Honourable Court
may deem fit to order
7.
That any such other or further relief as this Honourable Court may deem
appropriate to be made .
DATED at Nairobi this
day of
2014.
,,,,,,, & COMPANY
8.
ADVOCATES FOR THE DEFENDANTS
DRAWN & FILED BY:,,,,,,, & Company
Advocates
,,,,,,,
Arboretum Drive
P.O. Box ,,,,,,,
9. NAIROBI
)
TO BE SERVED UPON:Bruce House
Standard Street
P.O. Box ,,,,,,,
NAIROBI
()
AMENDED REPLY TO AMENDED DEFENCE:
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
Page 72 of 179
CIVIL CASE NO. xxx OF 2000
XXX BANK LIMITED ..
..
..
PLAINTIFF
-VERSUS-
fffffffffff .. ..
ggggggggg .. ..
..
..
..
..
…
..
..
.. 1ST DEFENDANT
.. 2ND DEFENDANT
RE-AMENDED REPLY TO RE-AMENDED DEFENCE
1.
Save in so far as the same consists of admissions, the Plaintiff joins issue with the
Re-Amended Statement of Defence filed herein on behalf of the Defendants herein
("the Defence").
2.
The Plaintiff repeats paragraphs 3, 4 and 5 of the Plaint in reply to paragraphs 3
and 4 of the Re-Amended Defence.
3.
In reply to paragraph 5 of the Re-Amended Defence the Plaintiff avers that it is
not a mandatory requirement in law or otherwise that the guarantee executed by
them should have been registered and/or stamp duty paid in respect thereof and
that the guarantee is valid as against the Defendants and is evidence of a personal
covenant to repay on their part. The Defendants are therefore bound to repay the
monies so guaranteed.
3(a)
In reply to paragraph 5(a) of the Re-Amended Defence the Plaintiff denies the
allegations of false misrepresentations and puts the Defendants to strict proof
thereof. The Plaintiff further avers that the said paragraph 5(a) of the ReAmended Defence is bad in law and should be struck off for failing to provide
the particulars of the alleged false misrepresentations. Further, the Plaintiff
avers that it is greatly prejudiced by the allegations contained in the said
paragraph as the Plaintiff is unable to plead fully in response to the same in the
absence of particulars of the alleged misrepresentations. In this regard, the
Page 73 of 179
Plaintiff reserves the right to further amend its Reply to Defence upon the supply
of such particulars from the Defendants.
4.
The Plaintiff avers in response to paragraph 6 of the Re-Amended Defence that
the default giving rise to this suit took place in or about May 1998 and as a result
this action is not barred by virtue of the Limitation of Actions Act.
5.
The Plaintiff avers in response to paragraph 7 of the Re-Amended Defence that
the Plaintiff did not, without the Defendants’ consent alter, vary or change the terms
upon which the overdraft facility was granted as alleged or at all.
6.
The Plaintiff further avers that it is greatly prejudiced by the allegations
contained in paragraph 7 of the Re-Amended Defence as the Plaintiff is unable to
plead fully in response to the same in the absence of particulars of the alleged
alterations. In this regard, the Plaintiff reserves the right to amend its Reply to ReAmended Defence upon the supply of such particulars from the Defendants.
6(a)
In reply to paragraph 7(a) of the Re-Amended Defence the Plaintiff denies
having acted in any manner as to prejudice the Defendants as alleged under the
said paragraph or at all and puts the Defendants to strict proof thereof. In the
alternative but “WITHOUT PREJUDICE” to the foregoing the Plaintiff avers that it
was an express term of the Letter of Offer and the Guarantee that the Plaintiff
reserved the right to set off, combine and/or consolidate all or any account of
the borrower Company without affecting the validity of the Guarantee. The
Plaintiff also reserved the right to consolidate all securities held on any account
as security for all liabilities due and owing from the borrower.
7.
In response to paragraphs 8 and 9 of the Re-Amended Defence, the Plaintiff
avers that it did not act in any way that would make it impossible for the principle
debtor to meet its obligations.
Page 74 of 179
8.
Further, the Plaintiff avers that it is greatly prejudiced by the allegations
contained in paragraph 8 of the Re-Amended Defence as the Plaintiff is unable to
plead fully in response to the same in the absence of particulars of the alleged
alterations. In this regard, the Plaintiff reserves the right to amend its Reply to ReAmended Defence upon the supply of such particulars from the Defendants.
9.
The Plaintiff further avers that it was on account of the default on the part of the
Hirer and on account of the failure of the Hirer to respond to the Plaintiff’s demand
letters and pursuant to its rights under the agreement that the Plaintiff repossessed
and sold the motor vehicles set out in paragraph 10 of the Plaint, which motor
vehicles were pledged to the Plaintiff under the agreement between the Plaintiff and
the Hirer.
10.
The Plaintiff avers in response to paragraph 9 of the Re-Amended Defence that
the only motor vehicles repossessed and sold were as enumerated in paragraph 10
of the Plaint and that all of these motor vehicles were the subject of the Hire
Purchase Agreement. Further, the Plaintiff avers that it did not make it difficult for
the Hirer to operate normally as alleged or at all.
11.
The Plaintiff denies the entire content of paragraph 10 of the Re-Amended
Defence and avers that the guarantee expressly provided that the liability of the
Defendants thereunder was that of a Principal Debtor and the Plaintiff was at
liberty under the guarantee to hold the Defendants primarily responsible for the
liabilities of the Hirer.
12.
In particular, the Plaintiff denies that it was under any obligation, express or
implied, to attach and sell all the Hirer’s assets before it requested payment of the
shortfall, if any, from the Defendants, as alleged in paragraph 10 of the ReAmended Defence or at all.
Page 75 of 179
13.
The Plaintiff reiterates the contents of paragraph 10 herein in response to
paragraph 11 of the Re-Amended Defence.
14.
The Plaintiff denies that there was any term in the guarantee of the nature
alleged in paragraph 12 of the Re-Amended Defence or at all.
15.
The Plaintiff avers in the alternative and strictly without prejudice to paragraph
14 herein above that even if there was such a term, which is denied, the Defendants’
liability under the guarantee was limited to Kshs. 30,000,000.00 together with
interest and other charges in respect of the overdraft facility and they would
therefore not have been exposed to any risk or large debts other than the debt due
under the terms of the guarantee.
16.
The Plaintiff denies that it acted fraudulently in selling the Hirer’s motor vehicles
or that it sold the motor vehicles as alleged in paragraph 13 of the Re-Amended
Defence.
The Plaintiff denies each and every particular of fraud alleged in
paragraph 13 of the Re-Amended Defence as if the same were set out verbatim and
traversed seriatim.
17.
The Plaintiff avers in further response to paragraph 13 of the Re-Amended
Defence that :i) Upon repossession of the motor vehicles enumerated in paragraph 10 of the
Plaint, the Plaintiff caused the same to be inspected and valued by the
Automobile Association of Kenya, to determine their market values at the
time.
ii) The said inspection and valuation was conducted the results of which were:KAE 545J
Kshs. 3,175,000.00
ZB 4709
Kshs.
875,000.00
ZB 4710
Kshs.
820,000.00
Page 76 of 179
iii) The Plaintiff thereafter placed an advertisement in the Daily Nation of March
29, 1999 advertising the sale of inter alia the aforesaid motor vehicles,
and inviting tenders for the same, which were required to reach the
Plaintiff by the 31st of March 1999.
iv) The Plaintiff further re-advertised the sale of the aforesaid motor vehicles on
the 31st of March, 1999 and invited tenders for the same to be submitted
to the Plaintiff on or before the 9th of April, 1999.
v) In the circumstances, the Plaintiff avers that the period of notice for the sale
was adequate.
vi) The sale was conducted with due regard to the market value of the aforesaid
motor vehicles and the prices procured by the Plaintiff were the best
prices tendered.
vii)That the Plaintiff was not under any obligation in law or otherwise to obtain
the highest possible price for the motor vehicles at the sale and was only
obliged to act in good faith and with due regard to the market value of the
motor vehicles at the time.
18.
For the aforesaid reasons, the Plaintiff denies that it acted fraudulently as alleged
in paragraph 14 of the Re-Amended Defence or at all and further denies that the
Defendants have been discharged from their liabilities under the guarantee.
19.
The Plaintiff avers that the Defendants are indebted to the Plaintiff jointly and
severally in the sum of Kshs. 30,000,000.00 together with interest thereon and costs
as per the Plaint.
Page 77 of 179
19(a) In reply to Paragraph 15A of the Re-Amended defence the Plaintiff avers that the
claimed interest rate of 27% p.a. was mutually agreed upon by the parties and
was applied and duly paid from time to time. Accordingly, the same cannot be
illegal, exhorbitant, unconsionable, as alleged or at all.
REASONS WHEREFORE the Plaintiff prays that judgement be entered against the 1st&
2nd Defendants as prayed in the Plaint.
DATED at Nairobi this
26th day of June
AMENDED at Nairobi this
day of
RE-AMENDED at Nairobi this
day of
2012.
XXX AND COMPANY
ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY:Xxx and Company
Advocates
Xxx
,,,,,,,
)
P O Box xxx
NAIROBI
TO BE SERVED UPON:xxxxxxx
Nakuru
Page 78 of 179
2014.
2014.
cccccccc
cccccccc
Nakuru
Dear Sirs,
Re:
ccccccccccccccc
Xxx Bank Limited –vsddddddd & mmmmm
============================
We have been served with your Re-Amended Defence filed on 3rd July. 2002.
We had given you our consent to amend paragraph 7(a) only but you appear to have
extended our consent to effect amendments to paragraph 5(a) as well. We wish to state
that the said amendment in paragraph 5(a) has been effected without our consent and
the same is therefore irregularly on records. However, in view of the importance of
this matter to our client, we do not wish to trigger any application for adjournment of
the hearing of this suit and we shall refrain from urging the Court to have the same
struck off. We have on our part filed our Re-Amended Reply to Re-Amended Defence
which we enclose herewith by way of service upon yourselves.
Yours faithfully,
XXX AND COMPANY
xxxxxxxxxxxxxxxx
cc:
The Deputy Registrar
High Court
Milimani Commercial Courts
Nairobi
cc:
xxxxxxxxxxxx
Advocates
House
Koinange Street
Nairobi
cc:
Xxx Bank Ltd
Victor Towers
Upper Hill Road
Nairobi
Attn: Mmm/sssss
Page 79 of 179
AMENDED PLAINT:
REPUBLIC OF KENYA
11. IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NUMBER ccccc OF 2001
CCCCC TRANSPORT COMPANY LIMITED ..
..
..
PLAINTIFF
-VSCCCCC ENTERPRISES LIMITED .
.. ..
DEFENDANT
AMENDED PLAINT.
1.
The Plaintiff is a limited liability Company duly incorporated in the Republic of
Kenya under the provisions of the Companies Act (Cap. 486 of the Laws of
Kenya) and carrying on transportation business in Nairobi and elsewhere in
the said Republic. Its address for service for purposes of this suit is care of
Messrs. ..... & Company, Advocates, Ccccc, Arboretum Drive, P. O. Box ccccc ,
Nairobi.
2.
The Defendant is a limited liability Company duly incorporated in the Republic
aforesaid under the provisions of the Companies Act , Cap. 486 of the Laws of
Kenya ) and carrying on business in Nairobi and elsewhere in the said Republic.
Service of Summons to Enter Appearance shall be effected upon the Defendant
through the offices of the Plaintiff’s Advocates.
3.
At all material times, the Defendant was the employer of one
Mogiri
Ondieki,
Defendant as a
now
deceased, (“the said
driver”)
Zephania
engaged
by the
driver of the Defendant’s motor vehicle registration number
CCCCC 327 F.
Page 80 of 179
4.
On or about 9th May, 1998 along the Nairobi – Mombasa Highway near a place
known as Aimima Kilungu, the
said
driver, whilst
in the course of his
aforesaid employment and with the authority and/or consent of the Defendant
was driving the Defendant’s said motor vehicle. The same was so negligently
and/or recklessly driven, managed and or controlled by the said driver, that the
he caused and/or permitted the same to violently collide with the Plaintiff’s
motor vehicle registration number KAG 993 T.
12. PARTICULARS OF NEGLIGENCE AND/OR RECKLESSNESS
a) Driving the Defendant’s said motor vehicle along the said road in an
aggressive manner and/or at an excessive speed;
b) Failing to keep any or any proper look – out or to or to have any or
any sufficient regard for any oncoming traffic that was or might
reasonably have been expected on the opposite side of the said road;
c) Carelessly overtaking at a dangerous speed and without keeping any
proper look out for other road users;
d) Failing to take any sufficient steps to brake, stop, swerve and/or
otherwise manoeuvre the Defendant’s said motor vehicle so as to
avoid colliding with the Plaintiff’s said motor vehicle;
5.
By reason of the foregoing, the Plaintiff has suffered loss and damage.
13.
14. PARTICULARS OF LOSS AND SPECIAL DAMAGE
a) Value of goods damaged and /or destroyed
in the accident.. ..
..
..
..
Kshs. 3,151,290.00
b) Less amount paid by the insurers ..
..
Page 81 of 179
Kshs. 2,507,000.00
------------------------Kshs. 644,290.00
c) Cost of repairs to the Plaintiff’s said
motor vehicle. .. ..
…
..
..
Kshs. 2,430,525.65
d) Loss of user
(Kshs. 200,000.00 per week for four weeks) Kshs. 800,000.00
------------------------TOTAL
Kshs. 3,874,815.65
===========
TOTAL
Kshs. 1,444,290.00
6.
The Plaintiff avers that the Defendant as employer of the said driver and owner
of motor vehicle registration number CCCCC 327 F is vicariously liable to the
Plaintiff for the said driver’s said negligent acts aforesaid. Accordingly, the
Plaintiff claims from the
Defendant the said sum of Kshs. 3,874,815.65.
1,444,290.00
7.
Despite demand being made upon the Defendant to pay the Plaintiff the
aforesaid sum, the Defendant has refused, neglected and /or otherwise failed to
pay the said sum of Kshs. 3,874,815.65 1,444,290.00 or any part thereof.
8.
The Plaintiff avers that there are arbitration proceedings pending between itself
and Panafrican Insurance Company Limited, the insurer of the Plaintiff’s motor
vehicle aforesaid
which proceedings arose out of the said accident. In the
said proceedings, the Plaintiff claims, inter alia, the sum of Kshs. 2,430,525.65
together with interest thereon, the same
being the sum incurred by the
Plaintiff in repairing its said motor vehicle subsequent to the said accident.
Accordingly, the Plaintiff avers that in the event that it is successful in the said
arbitration proceedings and
it is awarded
the said sum of Kshs
2,430,525.65 together with interest thereon as prayed therein,
Page 82 of 179
the Plaintiff
hereby undertakes to offset the said sum of Kshs 2,430,525.65
against the
similar sum of Kshs. 2,430,525.65 claimed against the Defendant herein and
more particularly set out in paragraph 5(c) above.
8a)
The Plaintiff avers that at the time of instituting this suit there were arbitration
proceedings pending between itself and Panafrican Insurance Company Limited,
the insurer of the Plaintiff's motor vehicle aforesaid, which proceedings arose out
of the said accident have since been concluded. In the said proceedings, the
Plaintiff claimed, inter alia, the sum of Kshs. 2,430,525.65 together with interest
thereon, the same being the sum incurred by the Plaintiff in repairing its said
motor vehicle subsequent to the said accident. Consequently, the Plaintiff was
awarded the sum of Kshs. 1,317,279.00 in full and final settlement thereof.
9.
The cause of action arose within the jurisdiction of this Honourable Court.
REASONS WHEREFORE the Plaintiff prays for judgment against the Defendant
jointly for: a) Special damages in the said sum of Kshs. 3,874,815.65 1,444,229.00 together with
interest thereon at the prevailing commercial rates from 9th May 1998 until payment
in full.
b) Costs of this suit and interest thereon at Court rates.
c) Such other or further relief as this Honourable Court may deem fit and just to grant.
DATEDat Nairobi this
DATED at Nairobi this
day of
2011
day of
2012
15. CCCCC AND COMPANY
ADVOCATES FOR THE PLAINTIFF
Page 83 of 179
DRAWN AND FILED BY:Ccccc and Company
Advocates
Ccccc
Arboretum Drive
P. O. Box ccccc
Nairobi
TO BE SERVED UPON
(Through the Plaintiff's Advocates Offices)
1.
Ccccc Enterprises Limited
Mombasa.
REPLY TO DEFENCE
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL SUIT NO. ,,,,, OF 2003
YYYYY ………………………..……….........................PLAINTIFF
VERSUS
,,,,, ASSURANCE (K) LIMITED …….……………………...DEFENDANT
5.
6. REPLY TO DEFENCE AND DEFENCE TO COUNTER-CLAIM
Page 84 of 179
1
Save in so far as the same consists of admissions, the Plaintiff joins issues with the
Defendant on matters raised in the various paragraphs of its Defence (“the
Defence”).
2
The Plaintiff admits the contents of paragraph 2 of the Defence in so far as the same is
merely descriptive of the parties.
3
The contents of paragraphs 3 of the Defence are denied in toto and the Defendant put to
strict proof thereof. In further response thereto, the Plaintiff reiterates the entire contents
of paragraph 5 of the Plaint.
4
In further answer to paragraph 3 and 4 of the Defence, the Plaintiff avers as follows:
a)
The loan application dated 9th may 1994 was procured by the Defendant at its
own instance by false misrepresentation and undue influence.
b)
The subsequent agreements were equally tainted with illegality in view of the
undue influence and misrepresentations of fact as particularised in paragraph 5 of
the Plaint.
c)
The loan application by the Plaintiff and the charging of L.R. Number
Dagoretti/,,,,,/,,,,, (“the suit property”) to secure the purported facility is invalid
and therefore not binding on the Plaintiff, by failing to comply with section 74 of
the Registered Land Act Cap. 300 of the laws of Kenya.
d)
The said charge on the suit property was not attested by two witnesses as by law
required and the same is therefore invalid ab initio and cannot be enforced in law.
e)
The lending by the Defendant to the Plaintiff was done outside the confines
of the law and relevant legal stipulations were thereby violated.
Page 85 of 179
f)
The charge was not voluntarily issued with the requisite knowledge
consent, and authority of the Plaintiff.
7. In answer to paragraph 5,6 and 7 of the Defence, the Plaintiff reiterates the entire contents of
paragraphs 5, 6 and 7 of the Plaint and puts the Defendant to strict proof thereof.
8. The Plaintiff denies having admitted liability in respect to the purported facility as alleged in
paragraph 8 of the Defence or at all and puts the Defendant to strict proof thereof.
DEFENCE TO COUNTER-CLAIM
9. The contents of paragraph 12 of the Defence are denied in toto and the Defendant put to strict
proof thereof. In further response thereto, the Plaintiff avers as follows:-
a)
The purported lending having been done in blatant disregard of the Banking Act Cap.
488 of the Laws of Kenya and the Central Bank Act , the same has no legal basis and
all interests charged thereby are illegal and unenforceable at all.
b)
In any event the Plaintiff has paid back over and above the monies that were allegedly
extended to him in disguise of a loan facility in the sum of Kshs 850,000.00.
c)
The alleged loan agreement and subsequent charge on the suit property are invalid as
they were procured under undue influence and misrepresentation of facts as
particularised in paragraph 5 of the Plaint and the same are therefore illegal and
unenforceable in law.
d)
In view of the foregoing, the Plaintiff does not owe the Defendant Kshs 4,026,033 as
alleged or at all and puts the Defendant to strict proof thereof.
Page 86 of 179
10. The Plaintiff therefore puts Defendant to strict proof of their Defence and Counterclaim and prays that it be struck out with costs as it is hopelessly incompetent, and
judgement be entered against the Defendant as prayed for in the Plaint.
DATED at Nairobithis
day of
2012.
,,,,, & COMPANY
ADVOCATES FOR THE PLAINTIFF
11.
12.
13. DRAWN AND FILED BY:gggggg
Nairobi
14.
15. TO BE SERVED UPON:-
Nairobi.
PLAINTIFF’S DEFENCE TO COUNTERCLAIM
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL SUIT NO. uuuuuu OF 2002
UUUUUU & CO. INC. …………………………….................PLAINTIFF
VERSUS
ccccccccccccccccccccccccccccc ……1 ST DEFENDANT
Page 87 of 179
cccccccccccccLIMITED……………………..........…......2ND DEFENDANT
ccccccccccccccccccccccc…….…………..……3 RD DEFENDANT
cccccccccccccccccc…………..………………4TH DEFENDANT
16. REPLY TO 1ST DEFENDANT'S DEFENCE AND PLAINTIFF'S DEFENCE
TO COUNTER-CLAIM
5
Save as is expressly admitted herein, the Plaintiff joins issues with the 1 st Defendant
on the various allegations made in the Defence filed herein on 14 th June 2002 ("the
Defence").
6
In response to paragraph 2 at page 1 of the Defence and paragraphs 2 and 3 at page 2
of the Defence Plaintiff avers that:a) The Plaintiff is a limited liability Company duly incorporated and
registered in the United States of America and carrying on business as a
private financial institutions in the said States and elsewhere, including the
Republic of Kenya and therefore has the requisite legal interest and legal
standing, respectively, to institute these proceedings.
b) The lending by the Plaintiff to the 1st Defendant was an off shore private
transaction entered into within the confines of the law and facilitated by
the Plaintiff's wholly owned subsidiary namely, ,,,,,, Capital Limited, a duly
registered Company under the Companies Act Cap. 486 of the Laws of
Kenya and therefore no legal stipulations were violated thereby as alleged
or at all.
Page 88 of 179
c) The said transaction was further facilitated by the Managing Director of
the 1st Defendant one Eugenio Luigi Francescon, the 3rd Defendant
herein, who was then a Director of the Plaintiff's wholly owned subsidiary
company, ,,,,,, Capital Limited aforesaid.
d) In view of the foregoing, the Plaintiff did not require a licence or
authorisation under either the Banking Act Cap. 488 or the Companies Act
Cap. 486 in order to extend the loan facility to the 1st Defendant as alleged
or at all.
e) The transactions which are the subject matter of this suit were carried with
the mutual participation of all the parties concerned and within the
confines of the law. No legal requirements, either as alleged or at all, were
thereby violated.
3.
In further answer to paragraph 3 of the Defence the Plaintiff avers that:
a) The said charges, debentures, Promissory Notes were issued voluntarily by the
respective parties who thereby, with full knowledge and authority, unconditionally
and irrevocably guaranteed the repayment of all moneys and liabilities including
the principal amount, interest thereon, costs, charges and expenses due, owing or
incurred by the 1st Defendant to the Plaintiff. They further guaranteed that in the
event of the 1st Defendant defaulting in repayment, the 2nd 3rd and 4th Defendants,
respectively, would pay the amount thereof to the Plaintiff.
b) It was on the strength of the said charges, debentures and Promissory Notes that
the Plaintiff, at the request of the 1st Defendant, extended and disbursed the loan
facility of US$ 60,000 to the 1st Defendant.
Page 89 of 179
4.
In view of paragraphs 2 and 3 above, the contents of paragraph 4 of the Defence are
denied in and the 1st Defendant put to strict proof therefore. It is specifically denied
that this suit is misconceived, bad in law or an abuse of the Court process, as alleged
or at all. To the contrary, it is manifest that the Plaintiff has proper and maintainable
claims against the Defendants, jointly and severally.
5.
In response to paragraphs 6, 7, 8 and 9 of the Defence, the Plaintiff reiterates the
entire contents of paragraphs 6, 7 and 8 of the Plaint. Further, the Plaintiff avers that
the interest rate of 27% per annum was negotiated and mutually agreed upon
between the Plaintiff and the 1st Defendant.
6.
In response to paragraphs 10 and 11, the Plaintiff reiterates the contents of paragraph
3 herein-above and further avers as follows:a)
The 1st Defendant voluntarily and with full knowledge and consent, without
any misrepresentation or fraud whatsoever on the part of the Plaintiff as
alleged or at all, duly executed a Floating Charge Debenture which was
registered on 20th August 1998, a Corporate Guarantee dated 5th August 1998
and a Promissory Note, to secure repayment of loan facility extended to the
1st Defendant by the Plaintiff.
b)
The Promissory Note was and still is for all purposes lawful and enforceable
as the same was duly executed by the 1st Defendant and the Plaintiff's
Attorney one ,,,,,, Gitau who had and still has a special power of Attorney
authorising him to execute Promissory Notes on behalf of the Plaintiff in
Kenya.
Page 90 of 179
c)
In consideration and on the strength of the said Promissory Note and
Debenture duly executed by the 1st Defendant, the Plaintiff duly extended and
disbursed the loan facility of US$ 60,000 to the 1st Defendant.
d)
The loan facility herein was rolled over three times upon requests from the 1 st
Defendant due to its inability to repay at the maturity of each rollover. The
said requests were made and acceded to by the Plaintiff, with the full
knowledge and consent of the 2nd, 3rd and 4th Defendants being the
Guarantors thereto.
e)
Sandro Francini is the current Vice President International of the Plaintiff and
the Managing Director of the Plaintiff's subsidiary, ,,,,,, Capital Management
Company situated in Florida, United States of America and a duly appointed
Attorney of the Plaintiff, duly authorised to negotiate and execute any
transaction in either the United States of America or abroad.
f)
The Plaintiff did not retain any part of the said facility to finance a purchase of
a Mercedes Benz Motor Vehicle from itself, as this was a separate and distinct
transaction entered into between the 1st Defendant and the Plaintiff's said
subsidiary ,,,,,, Capital Limited and at no one time did the 1 st Defendant
intimate to the Plaintiff that part of the facility was to be expended on the
purchase of the said vehicle as alleged or at all.
g)
The interest thereon together with the commitment fees have been calculated
at the mutually agreed rates of 27% per annum and 1% flat rate, respectively,
and there has been no interest overcharge as alleged or at all.
h)
The Plaintiff has never offered any kind of advice whatsoever tothe 1st
Defendant as alleged or at all. In any event, the Plaintiff, not being an expert
Page 91 of 179
in marble and/or granite, or in any matters connected therewith, was in no
position to give and did not in fact give, any kind of advice, expertise or
otherwise, in relation thereto.
i)
Further, and without prejudice to the foregoing, any such matters as were
discussed between the 1st Defendant and Sandro Francini in connection with
the said marble and/or granite or any other business in general including the
alleged ten year contract between the 1st Defendant and East African Portland
Cement Company Limited, if at all, were so discussed on a purely personal,
friendly and informal basis and at no time whatsoever did Sandro Francini
offer "advice" to 1st Defendant on behalf of the Plaintiff as alleged or at all.
j)
The two facilities extended to the 1st Defendant on 5th August 1998 and 23rd
February 1999, respectively, were separate and distinct transactions entered
into between the 1st Defendant and the Plaintiff. The second facility was not
extended to the 1st Defendant to enable it repay the 1st facility as alleged or at
all.
k)
Due to the 1st Defendant's failure to discharge its obligations pursuant to the
said Floating Charge Debenture and Promissory Note respectively, the
Plaintiff issued a demand notice on 7th August 2000 for the repayment of the
amount due and owing then, as by law required.
l)
It is denied that the Plaintiff induced the 1st Defendant with any
misrepresentation, illegality or fraud as alleged or at all. The 1st Defendant is
put to strict proof thereof. Further, the Plaintiff repeats that the various
securities given by the 1st Defendant to the Plaintiff were given freely,
voluntarily in consideration whereof funds were duly disbursed to the 1 st
Defendant.
Page 92 of 179
m)
It is denied that there is any conflict of interest between the Plaintiff and
Sandro Francini as alleged or at all. The 1st Defendant is put to strict proof
thereof. Further, the Plaintiff repeats paragraph 6 (e) hereinabove.
n)
Any such monies as were paid by the 1st Defendant to the Plaintiff were paid
on account of interest on the loan facility and not the principal amount. It is
denied that any funds were paid by the 1st Defendant to Sandro Francini to
the account of the Plaintiff. The 1st Defendant is put to strict proof thereof. In
any event, if any payment was made to Sandro Francini to the account of the
Plaintiff, which is denied, the 1st Defendant had no basis or warrant for
making such payment and would accordingly be still held liable in respect
thereof.
o)
The Plaintiff is in no way concerned with or interested in any such dealings as
may have taken place between the 1st Defendant and Sandro Francini. Further,
the Plaintiff avers that such securities as were given in its favour by the 1 st
Defendant are independent securities which have no connection with any
other dealings.
7.
In response to paragraph 12 of the Defence the Plaintiff avers that the scheduled
repayments therein were made on account of interest only. No repayment has been
made on account of the principal amount as alleged or at all. Consequently, the 1 st
Defendant is truly and justly indebted to the Plaintiff as pleaded in the Plaint.
8.
In answer to paragraph 13 and 14 of the Defence the Plaintiff reiterates the contents
of paragraph 6 (a to g) and (j) hereinabove.
Page 93 of 179
9.
In response to paragraphs 15 and 16 the Plaintiff avers that the Counter-claim in
Nairobi HCCC No. 1115 of 2001 is in respect of the outstanding balance on the
facility extended to the 1st Defendant by the Plaintiff on 23rd February 1999 and not
in respect of the facility granted on 5th August 1998 which is the subject matter of
this suit. As such the Plaintiff is well within its rights to institute this suit to recover
the debt outstanding on the latter facility.
10.
In response to paragraphs 17 of the Defence the Plaintiff reiterates the entire
contents of paragraphs 6, 7, 8, 9 and 10 hereinabove.
11.
In answer to paragraph 18 of the Defence, the Plaintiff reiterates the entire contents
of paragraph 7 hereinabove and paragraphs 11 and 16 of the Plaint.
12.
In response to paragraphs 19, 20 and 21 of the Defence, the Plaintiff reiterates the
entire contents of paragraphs 6 (k) hereinabove and paragraph 6, 11,16 and 17 of the
Plaint.
13.
In further answer to paragraph 21 and in answer to paragraph 22 of the Defence, the
Plaintiff repeats paragraph 9 hereinabove.
DEFENCE TO COUNTER-CLAIM
14.
The Plaintiffs repeats paragraphs 1 to 10 (both inclusive), hereinabove and save as is
expressly admitted herein, joins issue on the various allegations made in the
Counterclaim.
15.
The Plaintiff repeats paragraph 6 (l) hereinabove in answer to paragraph 25 of the
Counterclaim.
Page 94 of 179
16.
The contents of paragraphs 26 and 27 of the Counterclaim is denied and the 1 st
Defendant put to strict proof thereof. It is specifically denied that the Plaintiff itself,
or any of its officers or agents, offered any kind of advice whatsoever tothe 1 st
Defendant as alleged or at all. In any event, the Plaintiff and its officers or agents not
being experts in marble and/or granite, or in any matters connected therewith, were
in no position to give any kind of advice, expertise or otherwise, in relation thereto as
alleged or at all.
17.
In further response to paragraphs 26 and 27 of the Counterclaim, the Plaintiff avers
that any such matters as were discussed between the 1st Defendant and Sandro
Francini in connection with the said marble and/or granite or any other business in
general including the alleged ten year contract between the 1st Defendant and East
African Portland Cement Company Limited, if at all, and even the E-mails exchanged
between the 1st Defendant and Sandro Francini as alleged, were so discussed and
exchanged on a purely personal, friendly and informal basis and that at no time
whatsoever did Sandro Francini offer "advice" to 1st Defendant on behalf of the
Plaintiff as alleged or at all.
18.
In answer to paragraphs 28, 29,30, 31,32 33, 34 and 35 of the Counterclaim:-
a) The Plaintiff avers that it has no knowledge, and accordingly makes no admission, of the
allegation contained thereon. The 1st Defendant is put to strict proof thereof.
b) It is denied that Mr. Sandro Francini provided any advice to the 1 st Defendant as an
agent of the Plaintiff as alleged or at all. The 1st Defendant is put to strict proof thereof.
19.
In answer to paragraph 36 of the Counterclaim, the Plaintiff avers that in view
paragraphs 16, 17 and 18 hereinabove, the Plaintiff cannot be held liable for the
Page 95 of 179
alleged loss, if any, that might have been occasioned to the 1st Defendant, if at all, and
the 1st Defendant cannot thereby claim to have been discharged from its obligation to
repay the facility extended to it by the Plaintiff.
REASONS WHEREFORE the Plaintiffs prays that:
a)
The 1st Defendant's Counterclaim be dismissed with costs together with interest
thereon at such rates and for such period of time as this Honourable Court may
deem fit to grant.
b)
Judgement be entered in favour of the Plaintiff against the 1 st Defendant as prayed in
the Plaint.
DATED at Nairobi this …………..…….. day of ……………………..…….. 2002
UUUUUU & COMPANY
ADVOCATES FOR THE PLAINTIFF.
DRAWN AND FILED BY;
Uuuuuu & Company
Advocates,
Uuuuuu,
P.O. Box uuuuuu,
Nairobi.
TO BE SERVED UPON;
Nairobi.
.
SET-OFF TO COUNTERCLAIM
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
Page 96 of 179
CIVIL SUIT NO. ,,,,,,,, OF 2001
XXX PHARMACEUTICALS LIMITED..
..
..
PLAINTIFF
VERSUS
17. XXX CONSUMER
18. HEALTHCARE LIMITED ..
..
..
.
....
..DEFENDANT
REPLY TO DEFENCE AND DEFENCE AND/OR SET OFF TO COUNTER- CLAIM.
1.
Save in so far as the same consists of admissions, the Plaintiff joins issue with the
Statement of Defence and Counter- claim filed herein on behalf of the Defendant ("the
said Defence").
2.
In response to paragraphs 4 and 5 of the said Defence the Plaintiff reiterates the
contents of paragraphs 3 and 4 of the Plaint filed herein on 20 th June, 2001. (“the
Plaint”)
3.
The contents of paragraph 6 of the said Defence are denied in toto and the
Defendant put to strict proof thereof. In further response thereto, the Plaintiff avers
that in early 1998, three of the Defendant’s officers, Messrs. Yesse ,,,,,,,,, Evans ,,,,,,,,
and George ,,,,,,,,, approached the directors of the Plaintiff Company, Mr and Mrs.
,,,,,,,, and
proposed that the Plaintiff
Company be appointed as one of the
Defendant’s distributors in Uganda. The Plaintiff’s said directors agreed to the said
proposal and an agreement was therefore reached between the Plaintiff and the
Defendant (hereinafter referred to as “the said Agreement”),
the terms and
conditions whereof are more particularly set out in paragraph 4 of the Plaint.
4.
The said Agreement was made partly in writing, orally and by conduct. In so far as the
said Agreement was in writing, the same was contained in, inter alia, correspondence
exchanged between the parties and documents executed by the parties including the
Guarantee procured by the Plaintiff from Crane Bank Limited, for USD . 300,000.00
in favour of the Defendant. In so far as it was oral, the said Agreement was inferred
from discussions between the Defendant and the Plaintiff’s officers. In so far as it was
by conduct, the said Agreement was inferred from the conduct of the parties whereby
Page 97 of 179
the Defendant supplied to the Plaintiff, various goods for onward distribution by
the Plaintiff.
5.
In response to paragraph 7 of the said Defence, the Plaintiff avers that at all
material times, the Plaintiff has always been and still is, a company with sufficient
infrastructure and capacity to carry out distribution. In that regard, the Plaintiff avers
that it is and has been for a long time, one of the major distributors of, inter alia,
,,,,,,,, & ,,,,,,,,, ,,,,,,,,’s Kenya Limited, ,,,,,,,, Wax and Firestone East Africa, 1969 Limited.
6.
In response to paragraph 8 of the said Defence, the Plaintiff reiterates the entire
contents of paragraphs 4 and 5 of the Plaint and further avers as follows:-
i)
That in accordance
with
the Uganda’s National Drug
Authority’s
Statutory Regulations, the Plaintiff recruited a qualified pharmacist to
prescribe and dispense the drugs supplied by the
Defendant to the
Plaintiff.
ii)
That the Plaintiff had to
acquire
additional
business
premises
conducive for the carrying out of the distributorship between itself
and the Defendant.
iii)
That although the Guarantee procured in favour of the Defendant was
for USD 300,000.00, the credit limit
allowed to the Plaintiff by the
Defendant in accordance with the said Agreement, was in the sum of
USD 900,000.00 (“the agreed credit limit”).
The agreed credit limit was
discussed at the aforesaid meeting between the Defendant’s Messrs.
,,,,,,,,, ,,,,,,,, and ,,,,,,,, and the Plaintiff’s directors aforesaid. In that
regard, the Plaintiff avers that in carrying out the said distributorship
on behalf of the Defendant, with due regard to the aforesaid agreed
credit limit, the Plaintiff was entitled to and accordingly, procured at
all material times, supplies from the Defendant, well in excess of the
alleged credit limit of USD 300,000.00, but within the agreed credit
limit of USD 900,000.00. In due recognition of the agreed credit limit, it
was not until mid 2000, that the Defendant made
Page 98 of 179
a demand to the
Plaintiff for purportedly exceeding the alleged credit limit of USD
300,000.00.
Accordingly, at the hearing of this suit, the Plaintiff shall crave the leave of this Honourable
Court to refer to and rely on, inter alia, the Statements of Accounts issued to the Plaintiff
by the Defendant which clearly show that the Defendant allowed the Plaintiff a credit limit
of USD 900,000.00 as agreed.
iv)
The Plaintiff avers that it was an express and/or implied term of
the said Agreement that all the payments in respect of goods supplied
to the Plaintiff by the Defendant would be subject to a 90 - day credit
limit. This therefore obviated the need to carry out the distributorship
business on a cash basis. In any event, the aforesaid Statements of
Accounts clearly show that the
Plaintiff was given a 90 day credit
limit by the Defendant within which to redeem its account in respect
of each particular transaction.
v)
The Plaintiff reiterates the contents of paragraph 4(v) of the Plaint in
response to paragraph 8 (v) of the said Defence. In further response
thereto, the Plaintiff avers that pursuant to the said Agreement, all
credit notes were at all material times approved
by the Uganda
Country Sales Manager, George ,,,,,,,,, who was
the immediate
supervisor
behalf
of the
Plaintiff’s
distributorship
on
of
the
Defendant. Accordingly, the Defendant’s allegation in paragraph 8 (v)
of the said Defence is therefore untrue and totally without basis.
vi)
The Plaintiff avers that the Defendant failed to maintain
true and
proper accounts in respect of its transactions with the Plaintiff hence
the numerous verbal and written demands by the Plaintiff to the
Defendant to reconcile and rectify the said accounts so that the same
were a true reflection of the said transactions between the parties. It is
in that regard that a meeting was subsequently held between the
Plaintiff and the Defendant in Mombasa on 10th February, 2000.
Page 99 of 179
7.
In response to paragraph 9 of the said Defence, the Plaintiff reiterates the entire contents
of paragraph 5 of the Plaint.
8.
In response to paragraph 10 of the said Defence, the Plaintiff
reiterates the
contents of paragraph 6 of the Plaint and avers that it was in recognition of the
Plaintiff’s exemplary
performance in 1998 as evidenced by the Defendant’s
numerous letters to the Plaintiff, that the Defendant as an incentive, offered the
Plaintiff a two- day trip for two to the United States, fully paid for.
9.
Accordingly, it is highly contradictory of the Defendant to have commended the
Plaintiff so highly in 1998 as aforesaid and to on the other hand, allege that the
Plaintiff at that material time, had not only exceeded its credit limit, but also
owed the Defendant the sum of USD. 1,010,926.64. Accordingly, the Plaintiff puts the
Defendant to strict proof of the contents of paragraph 10 of the said Defence. In
any event, the Plaintiff avers that the Defendant never made any demand from the
Plaintiff, for the alleged sum of USD 1,010,926.64.
10.
In response to paragraphs 11 and 12 of the said Defence, the Plaintiff reiterates the
entire contents of paragraph 7 of the Plaint. In further response thereto, the Plaintiff
avers that the factors set out in paragraph 12 of the said Defence, merely
aggravated the Defendant’s said breaches which were in any event, the major
cause of the Plaintiff’s failure to meet its set targets.
11.
In response to paragraph 13 of the said Defence, the Plaintiff
reiterates the entire
contents of paragraph 7 of the Plaint and further avers as follows:-
a) That despite numerous requests by the Plaintiff to the Defendant to post
credit to the Plaintiff’s accounts, verbally and in writing,
the Defendant
failed to post to the Plaintiff’s accounts, the said outstanding credit notes
resulting in un - reconciled accounts not indicative of the true situation of
the Plaintiffs transaction with the Defendant as they then were.
b) That the Plaintiff is truly and justly entitled to the posting of the said credit
notes in view of the fact that it is the Defendant’s sales officers, Messrs.
Tom ,,,,,,,, and Charles ,,,,,,,, together with the Defendant’s Uganda Country
Page 100 of 179
Sales
Manager
aforesaid, Mr. George ,,,,,,,,,
who
collected
payment, goods from the Plaintiff’s premises for onward
without
distribution to
other distributors. This necessarily reduced the Plaintiff’s stock and the
cash flow input hence occasioning the low business volume referred to
in the Plaint.
c) Despite the fact that the low business volume aforesaid was occasioned
by the Defendant’s officers actions aforesaid, the Plaintiff avers that the
Defendant wrongfully withheld, without any justification whatsoever,
supplies
officers
to the Plaintiff to refurbish the stock collected by its said
and/or failed, to post credit to the Plaintiff’s
account as
aforesaid.
d) That the Plaintiff never once
complained
stocking and accordingly puts the
to the Defendant of over-
Defendant to strict proof of
paragraph 13(d) of the said Defence.
e) That the Plaintiff never once, exceeded the agreed credit limit of USD
900,000.00
12. That in response to paragraphs 14, 15, 16, 17 and 18 of the said Defence the Plaintiff
reiterates the entire contents of 8 and 9 of the Plaint and further avers as follows:-
a) That at no time did the Plaintiff ever exceed the agreed credit limit of USD
900,000.000
b) That the review and adjustment of the Plaintiff’s accounts by the Defendant after the
Mombasa meeting, was in recognition of the improper accounts maintained by the
Defendant. In any event, the Plaintiff avers that the Defendant subsequently backtracked on the said reviewed and adjusted accounts as well as the agreement reached at
the Mombasa meeting and once again, started making improper demands on the
Plaintiff. This is despite the fact that the Plaintiff had fulfilled its obligations pursuant to
the Mombasa meeting as averred in paragraph 9 of the Plaint.
c) Despite numerous demands made by the Plaintiff to the Defendant to render true and
accurate accounts to facilitate payment thereof by the Plaintiff, the Defendant refused,
neglected and/or otherwise failed to rectify the aforesaid accounts and persisted in its
Page 101 of 179
demand of the improper sum then allegedly due and owing from the Plaintiff as more
particularly set out in paragraph 15 of the said Defence.
13. In response to paragraphs 18 and 19 of the said Defence, the Plaintiff avers as follows:-
a) That the extension of the Bank Guarantee by the Plaintiff was in view of the fact
that pursuant to the said Agreement, the Plaintiff had
90 day credit limit as
aforesaid which obviated the necessity of trading on a cash basis.
b) That the Plaintiff reiterates that credit notes were verified and approved by the
Defendant’s Country Sales Manager , Mr. George ,,,,,,,, who was the Plaintiff’s
immediate supervisor on behalf of the Defendant.
c) The Plaintiff reiterates that the Defendant undertook to write off all its bad debts
as averred in paragraph 8 (iii) of the Plaint with a view to facilitating continued
trading between the Plaintiff and the Defendant and in particular, with a view to
increasing the low business volume.
14. The Plaintiff reiterates the entire contents of paragraph 10 of the Plaint in response to
paragraph 20 of the said Defence.
15. In response to paragraph 21 of the said Defence the Plaintiff reiterates that it never once
exceeded the agreed credit limit of USD 900,000.00 . Accordingly, the Plaintiff avers that
the reduction of the said
agreed credit limit to USD 500,000.00 was in view of the
Defendants allegation that the Plaintiff had exceeded the alleged credit limit of USD
300,000.00. In any event, the Plaintiff avers that it would have been highly irregular of
the Defendant to on the one hand, allege that the Plaintiff had exceeded the alleged
credit limit of USD 300,000.00 and to on the other hand increase the alleged credit limit
from USD 300,000.00 to USD 500,000.00
16. In further response thereto, the Plaintiff avers that in view of the Defendant’s failure,
refusal and/or neglect to regularise the Plaintiff’s accounts as aforesaid, the Plaintiff
was unable to repay the Defendant the amounts allegedly due to the Defendant as the
same did not reflect a true picture of the Plaintiff’s accounts with the Defendant as
they then stood. The Plaintiff has however, now given due credit to the Defendant of the
amounts truly and justly due to the Defendant as per paragraph 15(j) of the Plaint.
17. The Plaintiff reiterates the entire contents of paragraph 11 in response to paragraph 22
of the Plaint.
Page 102 of 179
18. The Plaintiff reiterates the entire contents of paragraph 12 in response to paragraph 23
of the Plaint.
19. The Plaintiff reiterates the entire contents of paragraph 13 in response to paragraph 24
of the Plaint.
20. The contents of paragraph 25 of the said Defence are misplaced and totally irrelevant
for the purpose of these proceedings.
21. The Plaintiff reiterates the entire contents of paragraph 14 in response to paragraph 26
of the Plaint.
22. In response to paragraphs 27, 28 , 29 and 30 of the said Defence, the Plaintiff reiterates
the entire contents of paragraphs 7 and 15 of the Plaint.
23. In response to paragraphs 30 , 31 and 32 of the said Defence, the Plaintiff avers that
in
view of all the foregoing and the avermnets made in the Plaint, the Defendant is truly
and justly indebted to the Plaintiff in the sum of USD 992,430.33
24. The Plaintiff avers that it has not failed to disclose to this Honourable Court, any
material facts pertaining hereto and puts the Defendant to strict proof of the contents
of paragraph 33 of the said Defence. In any event, the Plaintiff avers that if any
concealment of material facts has been made, which is denied, the same
was
occasioned by the fact that the objects of the suits referred to in paragraph 25 of the
said Defence and the remedies sought therein, are completely distinct from the suit
hereof. Further, the Plaintiff avers that if any concealment of material facts has been
made, which is denied, the same has been made by the Defendant in view of all the
fore going facts and the averments made in the Plaint.
DEFENCE AND/OR SET –OFF TO COUNTER- CLAIM.
25.
Save and except what is expressly or impliedly admitted herein, the Plaintiff denies
each and every allegation
contained in the Counter-claim as if the same were set
out and traversed seriatim.
26.
The Plaintiff
reiterates all the foregoing averments in defence of the Counter-claim
herein as well as all the averments made in the Plaint and further states as follows:-
Page 103 of 179
27.
That
due credit of the alleged sum of USD 85,929.93 claimed by the Defendant as
against the Plaintiff
has
already been given to the Defendant as more particularly
set out in paragraph 15 (j) of the Plaint
28.
Accordingly, the Plaintiff hereby seeks to set off the aforesaid sum of USD
85,929.93 against such part of the Plaintiff’s claim against the Defendant as is
necessary to offset the aforesaid sum in satisfaction of the Defendant’s Counterclaim herein.
REASONS WHEREFORE the Plaintiff prays that:1.
The sum of USD 85,929.93 be set off against such part of the Plaintiff’s claim
against the Defendant as is necessary to offset the aforesaid sum in satisfaction
of the Defendant’s Counter- claim herein.
2.
Judgment be entered against the Defendant in favour of the Plaintiff as prayed in
the Plaint.
DATED at Nairobi this
day of
2001
XXX AND COMPANY
19. ADVOCATES FOR THE PLAINTIFF
20. DRAWN AND FILED BY:Xxx and Company
Advocates
P. O. Box xxx
Nairobi
21. TO BE SERVED UPON
gggggggg & Co.
Advocates
Nairobi
MEMORUNDAM OF APPEAL
REPUBLIC OF KENYA
Page 104 of 179
IN THE COURT OF APPEAL AT NAIROBI
22. CIVIL APPLICATION NO. NAI.
OF 2002
IN THE MATTER OF AN INTENDED APPEAL
BETWEEN
23. THE ATTORNEY GENERAL.......................………………...1ST APPLICANT
NN KENYA LIMITED.....................…........………………...2ND APPLICANT
AND
24. MMMMMMMMMMM...…...…….................……………….1ST RESPONDENT
25.
26. PPPPPPPPPPPPPPPP...………..…………………….……2ND RESPONDENT
(Application for extension of time to file and serve the Notice of Appeal, out of
time in an intended Appeal from a Judgement of the High Court of Kenya at
Nairobi (Honourable Mrs. Justice Rawal), dated 11th ,,,,,,,, 2002 in the High
Court Civil Case No. 2…. of 200..)
BETWEEN
27. MMMMMMMMMMM……………….................................……1ST APPLICANT
28. PPPPPPPPPPPPPPPPP.....................................................…….2ND APPLICANT
29. VERSUS
30. THE ATTORNEY GENERAL……..........................................1ST RESPONDENT
NNN KENYA LIMITED..................……....…..........................2ND RESPONDENT
Page 105 of 179
MEMORANDUM OF APPEAL
The Appellant above-named appeals to the Court of Appeal against the entire
Judgement above-mentioned on the following GROUNDS inter alia, namely:-
1. The Learned Judge erred in fact in finding that the predominant purpose
behind the institution of Criminal proceedings on 1st February, 2000 against
the Applicants/Respondents (hereinafter collectively referred to as “the
Respondents”) was to put pressure on them to pay the claims of NN and to
prevent them from continuing with their civil suits.
2. The Learned Judge erred in fact in making a finding that the Attorney General
did not exercise the power enshrined in section 26 of the constitution in a
quasi-judicial manner.
3. The Learned Judge erred in law and in fact in making a declaration that the
institution and maintenance of the Chief Magistrates Nairobi Criminal Case No.
,,,,, of 2000 against MMMM and PPP on 2nd February 200….. upon the
complaint of NNN Kenya Limited was and is for the purposes of exerting
pressure on the applicants/ respondents to pay NN Kenya Limited a sum of
K.Shs 99,563,416/= which is disputed by them.
Page 106 of 179
4. The Learned Judge erred in law and in fact in making a declaration that the
institution, prosecution and maintenance of the aforesaid criminal case is an
abuse of the criminal process of the Court and is arbitrary and a contravention
of the said applicants’ rights under section 82 of the constitution.
5. The Learned Judge erred in fact and in law by ordering that the proceedings in
the Chief Magistrate’s Case No. ,,,,,, of 2000 be permanently stayed and
further that the Chief Magistrate Nairobi or any other Magistrate be
prohibited from hearing and determining the said case.
6. Having conceded that it may be true that in isolation, the transactions
between 12TH and 15TH September, 19….. could raise a reasonable belief of
committal of criminal offences, the Learned Judge failed to make a finding that
indeed a criminal offence, that of obtaining by false pretence had indeed been
committed on the said dates pursuant to which the Appellant made a
complaint to the Police.
7. The Learned Judge erred in fact by upholding Mrs. MM evidence that the
terms of payment between the parties was “Cash on delivery” despite the
evidence of Mr. KKK both oral and by way of affidavit that the terms of trade
was “Cash on order”.
8. Having accepted the evidence of Mrs MMM that she stopped the payments of
the subject cheques “believing that NN would come around to give her a full
account of money owed by both parties”, the Learned Judge erred in fact in
Page 107 of 179
failing to find that the Respondents had in fact lifted products for the value of
the said cheques that she had stopped and that she had continued to do so
even after she knew that
she had stopped payment of said cheques a fact
unknown to the 2nd Respondent/Applicant.
9. Having satisfied herself that indeed some form of dispute existed between the
parties and having had the benefit of listening to Mr. KKK evidence on behalf
of the Appellant, the Learned Judge erred in fact in failing to find that in those
circumstances, it was doubtful that NN Kenya would indeed have continued to
sell petroleum products to the Respondents on credit.
10.The Learned Judge failed in the circumstances that the Appellant must have
relied on the said Cheques as value for money before it authorised the release
of its products to the Respondents from its depot.
11.The Learned Judge erred in fact in failing to find that if in fact the evidence of
Mrs MMM was to be believed i.e, that the terms of trade was “cash on order”,
then it was not necessary for her to leave blank signed cheques with the
Appellant as opposed to going with the said cheques to the Appellants offices
and writing out a cheque for the value of the products collected every day.
12.The Learned Judge erred in fact in failing to make a finding that if indeed the
MMM had no knowledge of the other three cheques which they claimed were
fraudulently filled in by the Appellant,
they have never made a formal
complaint to the Police in respect of the alleged fraud.
Page 108 of 179
13.By satisfying herself that the subject matters of the counter-claim filed by the
Appellant in the civil suit filed by the Respondents is the same which are used
in the charge sheet of the criminal proceedings, the Learned Judge failed to
appreciate the submissions made on behalf of the Appellant relating to the
sequence of events prior to the filing of the said suits and the subject Notice of
Motion from which this Appeal lies in that, the complaint by the Appellant was
made on 7th,,,,,,, 199,, way before the Respondents filed the civil suits.
14.The Learned Judge failed to appreciate that the suit having been commenced
by the Respondents, the Appellant was compelled in the circumstances and
therefore obliged to file not only a Defence but also a Counterclaim within the
time prescribed by the civil procedure rules and to include the amounts of the
subject cheques for which by the Appellants had by their own admission,
collected products for the value thereof.
15.In the circumstances, the Learned Judge erred in fact in finding that the filing
of the Civil suits by the Respondents definitely hampered the Appellant from
realizing its claim from the Respondents suggesting that the Appellants
resorted to exerting pressure on the Respondents to pay the amounts due to it
by the Respondent.
16.That the Learned Judge erred in fact in failing to appreciate that the fact that
the Appellant had filed a counter-claim which included the value of the subject
Page 109 of 179
five cheques did not in any way change the manner in which NN came to be
owed the amounts thereof by the Respondents.
17.Having made a finding that the Investigating Officer did not properly
investigate the case, the Learned Judge erred in Law in ordering that only NN
Kenya do pay the Applicants/Respondents costs when the original Application
was in fact made against the Attorney General who is an independent party
from the Appellants herein.
18.In view of the circumstances set out herein above, the Learned Judge totally
misdirected herself in delivering Judgement in favour of the Respondents by
failing to consider and appreciate the evidence on record tendered on behalf
of the Appellant.
It is proposed to ask the Court FOR ORDERS THAT:-
The Appeal be allowed and a declaration be made to the extent that the
Appellant properly made a complaint to the police on 7th ,,,,,,,, 1999 believing that
an offence had been committed against it in the period between 12TH and 15TH
September 199….
In the result the orders made by the Learned Judge be set aside.
The costs of the Appeal be granted to the Appellant against the Respondent.
Page 110 of 179
DATED at Nairobi this
day of
200,,,,,,,,,
TTTTTTTTTT AND COMPANY
ADVOCATES FOR THE APPELLANT
TO:The Honourable the Judges of the Kenya Court of Appeal.
COPY TO BE SERVED UPON:WWWW & IIIIIII
Advocates
NAIROBI.
The Attorney General
State Law Offices
Sheria House
Room 308
NAIROBI
LODGED in the Registry at Nairobi this
day of
DEPUTY REGISTRAR
COURT OF APPEAL
Page 111 of 179
200,,,,
ORIGINATING SUMMONS:
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
31. MILIMANI COMMERCIAL COURTS
32. CIVIL CASE NO. OF 2001(O.S)
33.
34. IN THE MATTER OF EVICTION PROCEEDINGS
35. BETWEEN
THE ++ ++
AND ++ BANK (THE ++ BANK)………………….PLAINTIFF
36.
37. AND
++ INTERNATIONAL LIMITED……………DEFENDANT
38.
39. ORIGINATING SUMMONS
Page 112 of 179
(Under Order XXXVI, Rules 3A and 7 of the Civil Procedure Rules, Section 3A of the
Civil Procedure Act and all other enabling provisions of the law)
LET XXXXXX XXXXXX of Post Office Box Number xxxxxx, Nairobi, the Defendant in
the above eviction proceedings attend before a judge in chambers on the
of
day
2001 at 9.00 O’clock in the forenoon or so soon thereafter on the
hearing of an Application by the ++ ++ & ++ BANK (THE ++ BANK) FOR ORDERS:
1
A declaration that Xxxxxx Xxxxxx (‘the Defendant’) the Executive Director of
the ++ International Limited which is the registered owner of the Land
Reference Number ++/ 583 Nairobi continued occupation of L.R No.
++/583, I.R. ++/1 EMBAKASI NAIROBI is unlawful and that the same
constitutes illegal trespass.
2
THAT the Defendant be evicted from the said parcel of land being L.R
No.++/583, I.R. ++/1 EMBAKASI NAIROBI.
3
THAT the Defendant do pay Mesne profits equivalent to rent chargeable
and for continued occupation of the property from 12th of June 2001 until
the final determination of the Summons.
4
THAT the Defendants do bear the costs of this application.
WHICH APPLICATION is based on the annexed affidavit bbbbbbb and on such
other or further grounds and reasons as may be adduced at the hearing thereof.
Page 113 of 179
DATED at Nairobi this
day of
2001
40.
41.
42. XXXXXX & COMPANY
ADVOCATES FOR THE PLAINTIFF
DRAWN & FILED BY:
Xxxxxx & Company
Advocates,
Xxxxxx,
Arboretum Drive,
P.O. Box xxxxxx,
Nairobi.
TO BE SERVED UPON :
ccccccccccc
Nairobi.
Page 114 of 179
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI.
CIVIL SUIT NO. OF 2001
THE ++ ++
BANK & ++ BANK(THE ++ BANK) …………….PLAINTIFF
43.
44. VERSUS
++ INTERNATIONAL LIMITED……………DEFENDANT
45.
46.
47. AFFIDAVIT
I cccccccc of Post Office Box Number bbbbbbNairobi in the Republic of Kenya do
hereby make oath and state as follows;
1
THAT I am a senior Legal Counsel with the Plaintiff , ++ ++ and ++ Bank,
(hereinafter ‘the Bank’), I have full knowledge concerning this suit and as
such I am duly authorised by the Plaintiff to swear this Affidavit on its behalf..
1.
2.
THAT the claim, the subject matter of this suit and application, arise from
the implementation of the Facility Agreement entered into by and between
the Defendant and the Plaintiff in or about 6th of July, 1998 (hereinafter
called “the Facility Agreement”) pursuant whereto the Defendant, inter
alia, at the Plaintiff’s request, agreed to advance to the Plaintiff a sum of
Page 115 of 179
U.S.$2,500,000 upon the terms and conditions more specifically set out
therein.
3.
THAT pursuant to the terms and conditions of the Facility Agreement, the
parties hereto subsequently executed the following security documents:-
a)
Debenture dated 7th July, 1998 to secure a sum of US$2,500,000
(hereinafter called “the Debenture”).
b)
A Charge dated 7th July, 1998 over L.R. No. ++/583 Embakasi, Nairobi
to secure a sum of US$2,500,000 (hereinafter called “the Charge”).
c)
A variation of Agreement dated 4th August, 1998 which varied the
terms of repayment as set out in the Facility Agreement.
d)
A collection Account Agreement made on 7th August, 1998 between
the Plaintiff, ++ Bank and Standard Chartered Bank Kenya Limited
pursuant to the Variation of Agreement aforesaid.
16
THAT pursuant to the terms and conditions of the aforesaid security
documents, the Defendant duly advanced and disbursed to the Plaintiff the
total sum of US$2,250,000. At pages 62 to 75 of the exhibit hereto are true
copies of letters from the Plaintiff acknowledging and admitting its
indebtedness to the Plaintiff as aforesaid.
17.
THAT clause 8 of the Charge at page 6 thereof stipulated that:
Page 116 of 179
“without prejudice to the powers hereby conferred on the lender
all the covenants, agreements, provisions and powers contained in
the Loan Agreement and the Debenture and each of them for
securing or enforcing payment of all moneys due thereunder shall
where applicable extend and apply to this Instrument and shall be
deemed to be incorporated therein”.
18.
THAT in breach of its obligations under the various security documents, the
Plaintiff from time to time defaulted in making schedule repayments on the
amounts advanced to it. As a consequence whereof events of default did
occur entitling the ++ Bank to demand the immediate payment of the total
amount then outstanding, interest thereon and the cost and expense
incidental thereto. Further the ++ Bank was and is not obliged to make any
further disbursements pursuant to the terms of the Facility Agreement or
any subsequent variation thereto.
19.
THAT in the premises, the ++ Bank wrote to the Plaintiff several letters
demanding payment of outstanding monies as follows:a)
A letter dated 8th April, 1999 demanding payment by 16th April,
1999.
b)
A letter dated 27th May, 1999 demanding full payment of the total
amount then outstanding in accordance with Article XI of the Facility
Agreement. The total amount then totalled US$2,023,537.93.
Page 117 of 179
c)
A letter dated 29th July, 1999 demanding full payment of the total
amount then outstanding in accordance with Article XI of the Facility
Agreement. The total amount then totalled US$2,161,690.91.
True copies of the said letters are at pages 76 - 79.
20.
THAT I am advised by Xxxxxx & Company Advocates on record for the ++
Bank which advice I verily believe to be true that
arising from the foregoing:-
a)
Under clause 9 of the Debenture, the ++ Bank became entitled to appoint
any person or persons to be a receiver or receiver and manager and
receivers and managers of the property and assets thereby charged.
b)
Under the Charge and the Indian Transfer of Property Act 1882, the ++ Bank
became entitled to exercise its statutory power of sale of the charged
property aforesaid.
21.
THAT further to paragraph 20 hereinabove, I swear that:a)
By a Deed of Appointment of Receivers and Managers dated 29th
July, 1999, the ++ Bank appointed Messrs Graham James Greer
Silcock and Pratul Hemraj Shah. A true copy of the said Deed is at
pages 80 to 82 of the exhibit hereto.
The same has not been
stamped as the ++ Bank is exempt from payment of duties.
Page 118 of 179
b)
The ++ Bank at the material time, did not take any steps towards
exercise of its duly arisen statutory power of sale. In this regard, the
++ Bank has neither advertised the charged property for sale nor
offered the same for sale by private treaty or otherwise howsoever.
THAT subject to the Debenture, the Company/Borrower created a Charge dated
7th July 1998 over its property known as L.R ++/583, I.R. ++/1
EMBAKASINAIROBI in favour of the Plaintiff to secure the said facility.
Annexed hereto at pages…. of the said exhibit marked ‘SM1’ is a true copy of
the Charge.
4
THAT in pursuance of the foregoing, and in performance of its obligations
thereunder, the Plaintiff duly advanced moneys or otherwise gave credit or
afforded a banking facility and other financial accommodation to the
Company/Borrower. However, the Company breached its obligations under
the facility as a consequence whereof, the Plaintiff in exercise of its rights
under the security herein, the Plaintiff wrote to the Company on 29th July
1999 demanding full and immediate payment of the sum of US$
2,162,690.91 by the Company/Borrower being the outstanding balance as at
that time under the said facility together with such interest as would accrue
thereon at a rate of 2% p.a.
5
THAT in persistent and blatant breach of its obligation to the Plaintiff under
the terms and conditions of the Debenture, the Company /Borrower refused,
Page 119 of 179
neglected and or otherwise failed to make the scheduled payments to the
Plaintiff as a consequence whereof;
a)
In accordance with clause 8 of the Debenture, the principal moneys
and interest and other moneys and liabilities secured under the
Debenture became immediately payable and fell due to be
discharged without demand.
a)
Pursuant to clause 9 of the Debenture the Plaintiff on 29th July 1999
appointed a Receiver Manager over the assets of the Company
charged to the Plaintiff under the Debenture.
b)
The Plaintiff became entitled to exercise its duly arisen statutory
power of sale under the charge aforesaid.
6
THAT despite the statutory demand notices having been issued to the
Company/Borrower by the Plaintiff the Company/Borrower neglected,
ignored and or otherwise failed to make any efforts and or take any steps
towards liquidating the amounts outstanding under the said facility.
7
THAT the Defendant being the Executive Director of the Company /Borrower
was at all material times aware that the Company /Borrower did not have
any property which could be disposed of by the Plaintiff with a view to
recovering the balances outstanding under the said facility. In the premise,
the Defendant was in the event aware, that this charged property would be
put up for sale by public auction upon its failure to redeem the same within
the requisite statutory notice periods.
Page 120 of 179
8
THAT on several occasions and at the request of the Company/Borrower the
Plaintiff has postponed the sale of the charged property so as to negotiate
with the Company.
9
THAT the Company had on the 30th day of September 1999 filed an
Application under a Certificate of Urgency supported by an affidavit sworn by
Xxxxxx Xxxxxx an air line Xxxxxx and chief Executive, the of the
Company/Borrower, the Defendant herein, seeking inter alia,
a) An injunction restraining the Plaintiff from selling the charged property
b) An injunction restraining the Plaintiff from recalling, taking possession,
selling or otherwise realising any of the Defendant’s property.
c) An injunction both mandatory and prohibitory to eject the Receivers and
Managers namely GRAHAM JAMES GREER SILCOCK & PRATUL HEMRAJ
SHAH
d) Costs of the Application.
Annexed hereto at pages…. Of the exhibit marked ‘SM1’ are true copies of the
Plaint, Certificate of Urgency, Chamber Summons and Supporting Affidavit
respectively.
10 THAT the Plaintiff, through its advocates Xxxxxx & Company, filed its replying
Affidavit and Grounds of objection on the 13th October 1999 denying all the
allegations made in the Plaint, Certificate of Urgency, Chamber Summons
and the Supporting Affidavits respectively. Annexed hereto at pages… of the
exhibit marked ‘SM1’ are the true copies of the Replying Affidavit and
Grounds of Objection respectively.
Page 121 of 179
11 THAT on the same day the Plaintiff through its advocates aforesaid filed an
Application by way of Chamber Summons seeking orders for the stay of the
proceedings in the suit and for an order that the dispute be referred to an
arbitration. In the same Application the Plaintiff sought orders that the
Injunction Application filed by the Defendant dated 24th September 1999 be
heard in limine. Annexed hereto at pages ….. of the exhibit marked ‘SM1’ are
true copies of the Chamber Summons together with the Supporting Affidavit
respectively.
12 THAT the parties thereafter went into negotiations seeking an out of court
settlement of the matter and the Company’s Advocates aforesaid agreed
that once the settlement was agreed on they would withdraw the suit
aforesaid.
13 THAT as a consequence of not reaching at an agreement the
Company/Plaintiff’s application dated 24th September 1999 was fixed for
hearing on the 23rd of February 2000.
14 THAT when the Application came up for hearing on the aforesaid date the
Advocates for the Defendant sought leave to file a further Affidavit which
leave was granted and the matter stood over to the 23rd of March 2000.
However, the matter was not heard even then and the same was stood over
to 5th of April 2000 when it was finally heard.
Page 122 of 179
15 THAT upon hearing the matter, Justice Hewett gave a ruling immediately
dismissing the Application with costs. Annexed hereto at pages… of the
exhibit marked ‘SM1’ is a true Copy of the order.
16 THAT on the 6th day of April 2000, the Company/Plaintiff filed a Notice of
Motion and Supporting Affidavit under a Certificate of Urgency wherein it
sought, inter alia, the following orders;
a) A temporary stay of the ruling dated 5th April 2000 and all consequential
orders.
b) The costs of the Application.
Annexed hereto at pages… of the exhibit marked SM1 are true copies of the
Notice of Motion, Supporting Affidavit and the certificate of Urgency
respectively.
17 THAT the Plaintiff herein ('the Defendant') filed the Grounds of Opposition
and a Replying Affidavit on the 19th of April 2000. Annexed hereto at pages…
of the Exhibit marked ‘SM1’ are true copies of the Grounds of Opposition and
the Replying Affidavit respectively.
18 THAT the stay Application was heard on the 12th June 2000 and upon hearing
both sides, Justice Hewett dismissed the stay Application with costs and
made no order. Attached hereto at pages….. marked SM1 is a true copy of
the order dismissing the same.
Page 123 of 179
19 THAT on the 17th of July 2000 the Company/Plaintiff filed an Application
under a Certificate of Urgency for an ex-parte injunction and for review of
the order of Justice Hewett of the 20th April 2000. Attached hereto at
pages….. of the exhibit marked SM1 are true copies of the Notice of Motion
and the Affidavit of the Defendant herein.
20 THAT the Plaintiff filed its Replying Affidavit denying all the allegations set in
the Application.
21 THAT when the Application came up for hearing on the 23rd of January 2001,
the Company/Plaintiff’s Application was dismissed with costs. Attached
hereto at page…. Of the exhibit marked SM1 is a true copy of the order
dismissing the same.
22 THAT on the 23rd day of August the Company/Plaintiff made an Application
under a Certificate of Urgency seeking inter alia the following orders;
a) That there be a stay of execution of the Order of the Court made on the
23rd
day
of
January
pending
the
intended
appeal
by
the
Company/Plaintiff.
b) That there be no order of the court under section 52 of the Transfer of
Property Act permitting the Defendants therein to deal in the Plaintiff’s
property L.R No. ++/583 during the pendency and prosecution of the
proceedings and suit. Annexed hereto at pages.. . of the exhibit marked
‘SM1’ is a true copy of the Application.
Page 124 of 179
23 THAT on the 24th August 2001 the Court made Orders to that effect bit when
the matter was heard inter partes, the Application was dismissed with cost.
Annexed hereto at page …of the exhibit marked ‘SM1’ is a true copy of the
Order.
24 THAT the Company has never executed the intended appeal aforementioned
despite several courts order made against it in this matter.
25 THAT in blatant breach of the loan agreement, Debenture and the several
aforestated Court Orders the Company/Borrower refused, failed and/ or
neglected to pay the outstanding debt owing from itself to the Plaintiff
herein or any part thereof within the stipulated period of time and /or at all
giving rise to the Plaintiff’s right to realise the security aforesaid.
26 THAT the Plaintiff’s efforts to sell the security aforesaid which is the subject
matter of this Originating Summons , has been frustrated by the Defendant
as he occupies and continue to occupy the said property thereby making it
impossible for interested buyers to view the same.
27 THAT I am advised by the Plaintiff’s advocates on record aforesaid whose
advice I verily believe to be true that, the refusal by the Defendant herein to
vacate the said property is geared towards frustrating the Plaintiff herein
from realising the security aforesaid in breach of the loan agreement and the
Debenture thereof.
Page 125 of 179
28 THATI am further advised by the said advocates on record, whose advice I
verily believe to be true that failure by the Defendant, as the Executive
Director of the Company/Borrower, to fulfil his obligation under the
Debenture herein and more specifically the consequent Court Orders, such
as failure to vacate the said property and the frustration towards the Plaintiff
herein constitutes contempt of this Honourable Court.
29 THAT the Defendant has denied the Plaintiff herein its rights under the said
Debenture and the several Court Orders in the Company/Borrower suit
aforementioned to selling the said property to liquidate the amount
outstanding which currently stand at……
30 THAT in view of the foregoing, it is only fair, just and expedient that the
Defendant be ordered to vacate the property to enable the Plaintiff realise
the same for the purposes of liquidating the outstanding amount and by
virtue of its rights under the Court Orders made thereto.
31 THAT I swear this Affidavit in support of the originating Summons herein
seeking, inter alia, eviction orders of the Defendant from L.R No. ++/583,I.R
++/1 EMBAKASI, NAIROBI. Measuring approximately 2.4 acres and located
within the Jomo Kenyatta International Airport.
32 THAT what is deponed herein is true to the best of my knowledge save as to
matters deponed to on information sources whereof have been duly
Page 126 of 179
disclosed and matters deponed to on belief the grounds whereupon has
been given.
SWORN by the said cccccccccccccccccccc
At Nairobi On this
day of
2001
)
)
)
BEFORE ME
)
)
)
)
)
COMMISSIONER FOR OATHS
)
)
)
DRAW&FILED BY:
Xxxxxx & Company
Advocates,
Xxxxxx,
Arboretum Drive,
P.O. Box xxxxxx,
Nairobi.
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CIVIL CASE NO. 123 OF 1999
JOE BLOGGS ……………………………………………………………. PLAINTIFF
VERSUS
SIMPLE SIMON ………….…………………………………………….. DEFENDANT
NOTICE OF APPEAL
Page 127 of 179
TAKE NOTICE that SIMPLE SIMON being dissatisfied with the decision of the
Honourable Mr. Justice Dread given at Nairobi on the ……. day of ………., 1999 intends
to appeal to the Court of Appeal against the whole of the said decision /such part of the
said decision as decides that ..{specify.}..
The address for service of the appellant is ……
It is intended to serve copies of this notice on:- …{names and addresses of all persons
directly affected by the appeal}
Dated this ………….. day of ……………………….. 1999.
48. ADVOCATES FOR THE APPELLANT
To:-
The Registrar of the High Court of Kenya at Nairobi.
Lodged in the High Court of Kenya at Nairobi on the …………. day of
………………………., 1999.
…………………………………………………….
Registrar
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
CIVIL APPEAL NO. 123 OF 1999
49.
SIMPLE SIMON ……………………………………………………. APPELLANT
VERSUS
DESPERATE DAN …………………………………………………. RESPONDENT
[Appeal from the judgement, { decree order etc} of the High Court of Kenya at Nairobi
[of Justice Dread] dated 1st March 1999, in Civil Case {Civil Appeal/ Bankruptcy Cause/
Matrimonial Cause/ Miscellaneous Cause } No. …….. of 1999.]
Page 128 of 179
50. NOTICE OF CROSS-APPEAL
TAKE NOTICE that on the hearing of this appeal, the above-named respondent will
contend that the above-mentioned decision ought to be varied or reversed to the extent
and in the manner and on the grounds hereinafter set out, namely:1. ………
2. ………
It is proposed to ask the Court for an order that ……
It is intended to serve copies of this notice on …{names and addresses}…
Dated this …………… day of …………………………, 1999.
51. ADVOCATES FOR THE RESPONDENT
To:
1999.
The Honourable Judges of the Court of Appeal.
Lodged in the Registry {Sub-Registry} on the ……….. day of ……………………..,
…………………………………………
Registrar
NOTICE OF APPEAL (EECTION PETITION)
N/B: THE NOTICE OF APPEAL IS FILED AT THE COURT THAT HEARD THE MATTER
EG IF THE MATTER WAS IN THE HIGH COURT AND YOU INTEND TO APPEAL TO
THE COURT OF APPEAL, YOU FILE THE NOTICE OF APPEAL AT THE HIGH COURT
REGISTRY.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL
CIVIL APPEAL NO OF 2013
IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010
AND
Page 129 of 179
IN THE MATTER OF THE ELECTIONS ACT, 2011
AND
IN THE MATTER OF THE ELECTIONS (GENERAL) REGULATIONS, 2012
AND
IN THE MATTER OF THE INDEPENDENT ELECTORAL AND BOUNDARIES
COMMISSION ACT, 2011
AND
IN THE MATTER OF THE ELECTIONS (REGISTRATION OF VOTERS)
REGULATIONS, 2012
AND
IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY
ELECTIONS) PETITION RULES, 2013
AND
IN THE MATTER OF THE ELECTION FOR GOVERNOR OF ……COUNTY
………………………………….....PETITIONER
-VERSUSTHE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION………………………………FIRST RESPONDENT
……………………………………SECOND RESPONDENT
……………………………....THIRD RESPONDENT
(Being an Appeal against the judgment and order of the Hon. Mr. ……. delivered on ……….., in
KSL High Court Petition No of 2013 nullifying the …….. County Gubernatorial Election).
NOTICE OF APPEAL
(Filed Pursuant to Rule 75 of the Court of Appeal Rules, 2010).
TAKE NOTICE that………………., the 3rd respondent herein, being aggrieved with the
judgment of Hon. Mr. ……………. delivered on …………., in Ksl High Court Petition No of
2013 nullifying the ……. County Gubernatorial Election, wishes to appeal to the Court of
Appeal against the judgment and order in its entirety.
Page 130 of 179
DATED at Nairobi this
day of
2013
______________________________________________
OBAT WASONGA & Co. ADVOCATES
ADVOCATES FOR THE 3RD RESPONDENT/APPELANT
LODGED at the High Court Registry on this
of
2013
__________________________________
DEPUTY REGISTRAR
HIGH COURT KSL
Drawn and Filed by:
OBAT WASONGA & Co. Advocates
University way
P.O. Box
NAIROBI
To be Served Upon:
1.
Co. Advocates
Monrovia Streat/Utalii Lane
P.O. Box
NAIROBI
2.
& Associates
ELDORET
Page 131 of 179
P.O. Box
RECORD OF APPEAL:
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT THIKA
CIVIL APPEAL NO.
OF 2001
MOUNT BANK LIMITED………………………APPELLANT
52. AND
MOHAMMED GHIAS QUREISHI…………………1ST RESPONDENT
MOUNT LIMITED…….……………………...2ND RESPONDENT
Appeal from the decision of the High Court of Kenya (the Honourable Justice K
Mulwa) dated the 5th day of December 2000 in High Court Civil Case No. 1557 of
1997.
53.
54. BETWEEN
MOHAMMED GHIAS QUREISHI……………………….1ST PLAINTIFF
MOUNT LIMITED……………………………………2ND PLAINTIFF
55.
56. AND
MOUNT BANK LIMITED………………………….DEFENDANT
57.
58. RECORD OF APPEAL
KINYANJUI & COMPANY
Page 132 of 179
ADVOCATES
ATHU HOUSE
ATHUETUM DRIVE
Our Ref: P66/10/NR/ewm
P O BOX xxxxx
59. THIKA
(ADVOCATES FOR THE APPELLANT)
SOBHAG SHAH & GOSWAMI
ADVOCATES
EAGLE HOUSE, 3RD FLOOR
KIMATHI STREET
THIKA
(ADVOCATES FOR THE RESPONDENTS)
TABLE OF INDEX FOR RECORD OF APPEAL(ELECTION PETITION)
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA AT KSL
ELECTION PETITION APPEAL NO
OF 2013
IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ELECTIONS ACT, 2011
AND
IN THE MATTER OF THE ELECTIONS (GENERAL) REGULATIONS, 2012
AND
IN THE MATTER OF THE INDEPENDENT ELECTORAL AND BOUNDARIES
COMMISSION ACT, 2011
AND
IN THE MATTER OF THE ELECTIONS (REGISTRATION OF VOTERS)
REGULATIONS, 2012
AND
IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY
ELECTIONS) PETITION RULES, 2013
AND
IN THE MATTER OF THE ELECTION FOR GOVERNOR OF …….. COUNTY
………………………………….....APPELLANT
-VERSUSST
………………………………1 RESPONDENT
Page 133 of 179
THE INDEPENDENT ELECTORAL AND BOUNDARIES
COMMISSION…………………………………………….2NDRESPONDENT
………………………………………...3RD RESPONDENT
INDEX
NO
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
ITEM
CERTIFICATE OF XEROGRAPHY
MEMORANDUM OF APPEAL
PETITION
AFFIDAVIT IN SUPPORT OF PETITION &
ANNEXTURES THERETO
1ST& 2ND RESPONDENTS RESPONSE TO THE
PETITION
AFFIDAVIT IN SUPPORT OF THE 1ST& 2ND
RESPONDENTS’S RESPONSE
ST
ND
1 & 2 RESPONDENTS’ WITNESSES AFFIDAVITS
3RD RESPONDENTS’ RESPONSE TO THE PETITION
3RD RESPONDENTS’ AFFIDAVIT OF RESPONSE
3RD RESPONDENT’S WITNESSES AFFIDAVITS
PETITIONER’S WITNESSES AFFIDAVITS
PETITIONER’S APPLICATION DATED 10TH MAY
2013 & THE SUPPORTING AFFIDAVITS THERETO
RESPONSES TO THE APPLICATION DATED 10TH
MAY 2013
WRITTEN SUBMISSIONS ON THE PETITIONERS’
APPLICATION DATED 10TH MAY 2013
RULING ON THE APPLICATION DATED 10TH MAY
2013 (DATED 3RD JULY 2013)
ORDER ARISING FROM THE RULING DATED 3RD
JULY 2013
17.
18.
RESULTS OF THE RE-COUNT
3 RESPONDENT’S APPLICATION DATED 16TH
JULY 2013
19.
1ST& 2ND RESPONDENTS APPLICATION DATED
16TH JULY 2013.
PETITIONER’S APPLICATION DATED 17TH JULY
2013
20.
21.
22.
23.
24.
RD
RULING ON THE APPLICATIONS BY THE PARTIES
DATED 22ND JULY 2013
ORDER ARISING FROM THE RULING OF 22ND
JULY 2013
ORDER GRANTING LEAVE TO APPEAL THE
RULING OF 22ND JULY 2013
TYPED PROCEEDINGS
Page 134 of 179
PAGE
25.
26.
27.
28.
CERTIFICATE OF THE REGISTRAR
AGREED ISSUES
PETITIONER’S FINAL WRITTEN SUBMISSIONS
1ST& 2ND RESPONDENTS FINAL WRITTEN
SUBMISSIONS
RD
3 RESPONDENT’S FINAL WRITTEN
SUBMISSIONS
JUDGMENT OF THE COURT, DATED 23RD
AUGUST 2013
DECREE OF THE COURT
NOTICE OF APPEAL
29.
30.
31.
32.
DATED at Nairobi this
day of
2013
OBAT WASONGA& CO ADVOCATES,
ADVOCATES FOR THE APPELLANT
Drawn and Filed by:
O& Co. Advocates
University way
P.O. Box
Nairobi
To be Served Upon:
& Co. Advocates
2.
KVD Plaza,
Monrovia Streat/Utalii Lane
P.O. Box
Nairobi
& Associates
P.O. Box
Eldoret
CERTIFICATE OF XEROGRAPHY/ADVOCATES CERTIFICATE (IT BASICALLY STATES
THAT THE RECORD OF APPEAL HAS BEEN PREPARED BY PROCEEDINGS
OBTAINED FROM THE COURT WHOSE DECISION IS BEING APPEALED AGAINST)
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA AT KSL
Page 135 of 179
CIVIL APPEAL NO
OF 2013
IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ELECTIONS ACT, 2011
AND
IN THE MATTER OF THE ELECTIONS (GENERAL) REGULATIONS, 2012
AND
IN THE MATTER OF THE INDEPENDENT ELECTORAL AND BOUNDARIES
COMMISSION ACT, 2011
AND
IN THE MATTER OF THE ELECTIONS (REGISTRATION OF VOTERS)
REGULATIONS, 2012
AND
IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY
ELECTIONS) PETITION RULES, 2013
AND
IN THE MATTER OF THE ELECTION FOR GOVERNOR OF SIAYACOUNTY
………………………………….....APPELLANT
-VERSUS………………………………1ST RESPONDENT
THE INDEPENDENT ELECTORAL AND BOUNDARIES
COMMISSION…………………………………………….2NDRESPONDENT
………………………………………...3RD RESPONDENT
CERTIFICATE OF XEROGRAPHY
I, OBAT WASONGA, advocate having the conduct of this matter do hereby certify that the
Application herein has been produced by the process of xerography.
DATED at Nairobi this
day of
Drawn and Filed by:
Obat Wasonga& Co. Advocates
, 16th Floor
Page 136 of 179
2013
University way
P.O. Box
Nairobi
To be Served Upon:
2. & Co. Advocates
2.
5th Floor, View Park Towers
Monrovia Streat/Utalii Lane
P.O. Box
Nairobi
& Associates
KVD Pla,
P.O. Box
Eldoret
Page 137 of 179
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT THIKA
CIVIL APPEAL NO.
OF 2001
MOUNT BANK LIMITED………………………APPELLANT
60. AND
MOHAMMED GHIAS QUREISHI…………………1ST RESPONDENT
MOUNT LIMITED…….……………………...2ND RESPONDENT
Appeal from the decision of the High Court of Kenya (the Honourable Justice)
dated the 5th day of December 2000 in High Court Civil Case No. .
61.
62. BETWEEN
MOHAMMED GHIAS QUREISHI……………………….1ST PLAINTIFF
MOUNT LIMITED……………………………………2ND PLAINTIFF
63.
64. AND
MOUNT BANK LIMITED………………………….DEFENDANT
65.
66. RECORD OF APPEAL
& COMPANY
ADVOCATES
ATHU HOUSE
ATHUETUM DRIVE
Our Ref: P66/10/NR/ewm
P O BOX xxxxx
67. THIKA
(ADVOCATES FOR THE APPELLANT)
Page 138 of 179
SOBHAG SHAH & GOSWAMI
ADVOCATES
EAGLE HOUSE, 3RD FLOOR
KIMATHI STREET
THIKA
(ADVOCATES FOR THE RESPONDENTS)
Certified correct and prepared with copies supplied by the High Court of Kenya at
Thika.
KINYANJUI & COMPANY
ADVOCATES FOR THE APPELLANTS
Page 139 of 179
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT THIKA
CIVIL APPEAL NO.
OF 2001
MOUNT BANK LIMITED………………………APPELLANT
68. AND
MOHAMMED GHIAS QUREISHI…………………1ST RESPONDENT
MOUNT LIMITED…….……………………...2ND RESPONDENT
Appeal from the decision of the High Court of Kenya (the Honourable Justice K
Mulwa) dated the 5th day of December 2000 in High Court Civil Case No. 1557 of
1997.
69. BETWEEN
MOHAMMED GHIAS QUREISHI……………………….1ST PLAINTIFF
MOUNT LIMITED……………………………………2ND PLAINTIFF
70.
71. AND
MOUNT BANK LIMITED………………………….DEFENDANT
72. INDEX
1.
2.
3.
4.
5.
6.
Memorandum of Appeal
Plaint
Chamber Summons
Affidavit of M G Qureishi
Annextures
Affidavit of M G Qureishi
6.9.2001
24.6.1997
24.6.1997
24.6.1997
21.7.1997
Page 140 of 179
1-3
4-11
12-13
14- 20
21- 43
44-47
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
Annextures
Notice of appointment of
Advocates
Summons to Enter
Appearance
Grounds of objection
Replying affidavit of Ayaz
Merali
Annextures
Memorandum of Appearance
Defence
Notice of Change of Advocates
Summons for Directions
Plaintiff’s Statement of Issues
Defendants Statement of
issues
Ruling on Issues
Notice of Change of Advocates
Plaintiff’s list of documents
Notice to Produce
Plaintiff’s list of authourities
Defendant’s list of documents
Defendant’s list of authorities
Defendant’s amended list of
authourities
Plaintiffs written submissions
Defendant’s written
submissions
Plaintiff’s reply to defendants
submissions
Proceedings and exhibits
Judgement
Decree
Notice of Appeal
Letter requesting for
proceedings
Notice of Address for service
15.6.1999
26.11.1999
26.11.1999
26.11.1999
30.11.1999
24.2.2000
48- 51
52- 53
54
55- 58
59- 73
74- 134
135
136- 147
148- 149
150- 151
152- 155
156- 159
160- 162
163
164- 166
167
168
169- 170
171- 172
3.4.2000
12.4.2000
16.5.2000
173- 174
175- 182
183- 192
30.5.2000
193- 195
196- 267
268- 279
280- 281
282- 283
284
285
286-287
28.7.1997
25.6.1997
28.7.1997
11.8.1997
31.7.1997
13.8.1997
13.1.1998
26.5.1998
16.9.1998
5.12.2000
7.9.2001
8.12.2000
7.12.2000
18.12.2000
18.12.2000
8.1.2001
17.7.2001
Page 141 of 179
288- 289
290- 294
295- 296
Plaintiff’s Notice of appeal
Defendant’s Notice of address
for service
Miscellaneous
correspondence
Certificate of delay
Page 142 of 179
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT THIKA
CIVIL APPEAL NO.
OF 2001
MOUNT BANK LIMITED………………………APPELLANT
74. AND
MOHAMMED GHIAS QUREISHI…………………1ST RESPONDENT
MOUNT LIMITED…….……………………...2ND RESPONDENT
Appeal from the decision of the High Court of Kenya (the Honourable Justice K
Mulwa) dated the 5th day of December 2000 in High Court Civil Case No. 1557 of
1997.
75. BETWEEN
MOHAMMED GHIAS QUREISHI……………………….1ST PLAINTIFF
MOUNT LIMITED……………………………………2ND PLAINTIFF
76.
77. AND
MOUNT BANK LIMITED………………………….DEFENDANT
78.
79. MEMORANDUM OF APPEAL
The Appellant, MOUNT BANK LIMITED, being dissatisfied with the judgement
delivered by the Honourable Mr. Justice Kasanga Mulwa on 5th December 2000
Page 143 of 179
hereby appeals to the Court of Appeal against the whole of the said judgement on
the following grounds:1.
The Learned Judge erred in law and fact by finding that the 1st Respondent
was terminated whereas the said 1st Respondent had resigned from his
position.
2.
The Learned judge erred in finding that the 1st Respondent was receiving a
sum of K Shs. 200,000 as unofficial salary whereas no evidence had been
adduced to that effect.
3.
The Learned Judge erred in awarding special damages which had not been
specifically proved as is required by law.
4.
The Learned Judge erred in law and in fact by finding 36 months as
reasonable period of notice for the termination of an employment contract.
5.
The Learned Judge misdirected himself and based his finding on reasonable
notice on wrong considerations.
6.
The Learned Judge failed to consider the fact that the 1st Respondent had
failed to prove that he had mitigated his loss as is required in the particular
circumstances of this case.
7.
The Learned Judge erred in fact by failing to take into account and to
consider the evidence adduced on behalf of the Appellant.
8.
The Learned Judge failed to appreciate the submissions of the Learned
Counsel for the Appellant by finding in favour of the Respondent herein.
9.
The Learned Judge erred in law and fact by failing to award the Appellant
herein the costs of defending the suit against the 2nd Respondent.
10.
In all the circumstances of the case, the findings of the learned Judge are
insupportable in Law or on the basis of the evidence adduced.
Page 144 of 179
80. It is proposed to ask this Court for Orders that:(a)
The appeal be allowed.
(b)
The judgement in favour of the 1st Respondent be set aside.
(c)
The Order made by the Learned Judge in the Superior Court as to interest
and costs be set aside.
(d)
The Appellant be awarded the costs of this Appeal and in the Superior
Court.
DATED at Thika this
day of
2001.
& COMPANY
81. ADVOCATES FOR THE APPELLANT
To:
The Honourable Judges
Of the Court of Appeal of Kenya at Thika.
DRAWN & FILED BY:
& Company
Advocates
Athu House
Athuetum Drive
P O Box xxxxx
Thika.
TO BE SERVED UPON:
Sobhag Shah & V Goswami
Advocates
Page 145 of 179
3rd Floor, Eagle House
Kimathi Street
P O Box 45845
Thika.
LODGED in the Registry at Thika this
day of
2001.
DEPUTY REGISTRAR
82. COURT OF APPEAL
REPUBLIC OF KENYA
POWER OF ATTORNEY
I, OTOYO MARACH of Post Office Box Number 4040-40100 Nairobi, Kenya HEREBY
APPOINT my sister JABER NYARWEGIof Post Office Box Number 4040-40100 Nairobi,
Kenya ASMY TRUE AND LAWFUL ATTORNEY with authority to do all or any of the acts
and things hereunder specified on my behalf in relation to our property known as KAREN LR
NO. 2344-12L (hereinafter called “the Property”):
Authority
The Attorney has authority in my name and on my behalf and on such terms and conditions as
seen to her expedient to:
1. Attend and otherwise participate on my behalf and in my name (in so far as my signature
attendance or participation would be requisite) all documents, correspondence, meetings
and other activities relating to the property;
2. To sell all or any of my interest in the Property;
3. To demand and collect or receive and take all necessary steps to recover all rents and
other sums owing to me in relation to the property;
4. To exercise and execute all powers which are now or shall hereafter be vested in or
conferred on me as a lessee under any Act of Parliament in relation to the Property;
5. To represent me and to appear in my name and stead and on my behalf, before any Land
Registry in Kenya and before any other official government or County officer or any
Page 146 of 179
other administrative officers or before any other authority in all matters pertaining to or
connected with the Property and to sign and execute all certificates documents contracts
and declarations before such authorities or offices and to perform all actions and matters
which may be required by law in connection with this power of attorney;
6. To enter and permit others to enter the Property;
7. To exercise any right of re-entry or re-possession;
8. To bring or defend continue or discontinue any legal proceedings;
9. For me, and in my name, to sign all such transfers and other instruments and to do all
such act, matters and things as may be necessary or expedient for carrying out the powers
hereby given;
10. To do all other things incidental to the above powers or which she thinks necessary or
expedient in relation to the Property as fully and effectually as I could do them myself.
REVOCATION
I shall not revoke this Power of Attorney as long as I remain indebted in any manner to the
Attorney.
IN WITNESS whereof I have hereunto set my hands and seal thisday of September, 2014.
SIGNED, SEALED and DELIVERED
By the said OTOYO MARACH
_____________
In the presence of
DEPONENT
COMMISSIONER FOR OATHS
SALE AGREEMENT
Page 147 of 179
THIS
AGREEMENT
made
on
the…………. day
of
September,
2014
between:
GOR MAHIA FUN AND CHAMPION 2014 holders of Kenyan Identity Card Numbers
33998877
and
44332244
of Post office Box Number 4040-40100
AND
4040-40100
RESPECTIVELY (hereafter called “the Vendors” which expression shall where thecontext so
admit
include
their
executors,
administrators
and
assigns)
of
the
one
part,
and
SILALII MASKIO AND NIKO RADA holders of Kenyan Identity Card Numbers11223774
AND 11223344 RESPECTIVELY of Post Office Box Number 15629-00100 (hereafter called “the
Purchasers” which expression shall where the context so admits or requires include their executors,
administrators and assigns) of the other part
WHEREAS:
1. Definitions and Interpretations
"The Vendor" includes the successors in title of the Vendor and any other person who is at any
time entitled to the reversion immediately expectant on the term agreed to be granted by this
Agreement "The Vendors’ and Purchasers’ Advocates", are Prime Lawyer & Co.Advocates, 1st
Floor, Class FP.O Box 12345-00100.
1.1. "Interest" means interest calculated at the maximum rate lawfully permitted to be charged
by Gulf Bank of Kenya on overdraft accounts.
1.2. “The Lease” means the Lease dated 1strd day of December, 2014 and registered as
KAREN LR NO.
1.3. "The Interest Sold" means the leasehold term for the unexpired term of 99 years from 1st
December 1920.
1.4. "The Purchase Price" means the sum of Kenya Shillings Million only (Kshs./-) .
1.5. "The Purchaser" includes the personal representatives and successors of the Purchaser.
1.6. Words importing one gender shall be construed as importing any other gender.
1.7. Words importing the singular shall be construed as importing the plural and vice versa.
1.8. The Clause and paragraph headings in the body of this Agreement and in the schedules do
not form part of this Agreement and shall not be taken into account in its construction or
Page 148 of 179
interpretation.
2. Law Society Conditions of Sale (General Conditions) of 1989
The Sale is subject to the Law Society Conditions of Sale (1989 Edition) inso far as they are not
inconsistent with the conditions contained in thisAgreement or specifically hereby excluded.
3. Agreement for Sale and the Interest sold
The Vendors are the owners of the property Known as KAREN LR NO. though the title has not
been registered in their names but rather in their late mother’s. It is to be co-charged to Gulf Bank
Limited alongside another title to a property known as ELDORET LR NO. ….for a sum of Kenya
Shillings Only (KSHs FIGURES/-) and will be released to the Purchasers upon repayment of the
sum plus the interest thereof.
I.
The Vendors have agreed to sell and the Purchasers have agreed to purchasefrom the
Vendors the property described here below.
II.
The property (the property”) sold is all that parcel of land described asLand Reference
Number ……. situate at KAREN in Nairobi.
III.
The Vendors covenants that they are the absolute owners of the property withno third party
interests though the title has not been registered in their name.
IV.
The interest sold is residue of Leasehold of Ninety Nine (99) Years set to expire in the year
2015(from 1/12/1920) and is subject to renewal.
4. Purchase Price and Deposit
I.
The purchase price has been discussed between the parties herein andagreed at Kenya
Shillings OneHundred Million Only (KShs 100,000,000/- (“the Purchase Price”)
Page 149 of 179
II.
A Deposit of Kenya Shillings TEN Million Only (KShs 10,000,000/-) has been paid in
cash by the Purchasers to the Vendors and receipt thereof acknowledged by the Vendors
upon the execution of this Agreement.
III.
The balance of the Purchase Price of Kenya Shillings Ninety Million Only (KShs
90,000,000/-) shall be paid to the Vendors as follows: Kenya Shillings Forty Million
Only (KShs 40,000,000/-) by the vendors, and the remaining Kenya Shillings Fifty
Million Only (KShs 50,000,000/-) to be paid by Gulf Bank Limited upon transfer of the
said property to the Purchaser.
5. Completion & Completion Documents
Among the Completion Documents required hereby are; original Title documents, Transfer,
Lease Deed, Notice of withdrawal of caveat(where a 3rd party is interested), all consents
applicable to this transaction, KRA pin certificate of the Vendor, Identification Card copy of the
Vendor, Rent and Rates Clearance certificates, Stamp Duty payment receipts, Passport size
Photos of the Purchasers; and consideration.
All the costs for the preparation of this Agreement and completion and registration of the
Transfer Stamp Duty, registration fees, search fees and document production, photocopying and
binding charges and incidentals shall be borne by the Purchasers.
6. Special Conditions
a) The deposit as per the parties’ Agreement is 5%, a deviation from clause 3 of the Law
Society of Kenya’s (1989) General Conditions and in regard to clause 2 above.
b) Completion date is 20 days from the date the Last party signs the Document.
7. Capacity
The following are those with requisite Authority to sell the Property, the Vendors’ Agent, the
Advocate, other Administrators of the Estate, and any other person given Power of Attorney by
the Vendors, the Trustees, Other Beneficiaries if the Court so decides.
8. Possession and Movables
Page 150 of 179
The Vendors wish to grant vacant possession to the Purchasers, free of any encumbrances.
Fixtures and fittings are sold together with the property and their value well within the Purchase
Price. The movables don’t form part of the Property being sold.
9. Matters affecting the property
The property is sold subject to;
a) Disclosure by the Vendors of an existing boundary dispute with their neighbor
b) A dry rot in some part of the property; and,
c) Cracks on the foundation of the building that are patent.
d) all subsisting easements, quasi-easements and rights of way (if any);and
e) The acts, reservations, stipulations and conditions contained orimplied in the title.
10. Outgoings and income of the property
The vendors will be receiving rent and maintaining the property in good condition, including the
payment of all charges, Insurance, taxes and other liabilities due until the full execution takes
place. The purchasers will get vacant possession thereafter.
11. Default
Purchasers will retain the deposit plus other damages as awarded by the court if the Vendors are
guilty of default, whereas the Purchasers will be entitled to the refunding of their deposit plus
other damages as may be awarded by a court upon default by the Vendors.
Parties have 15 days from the date of last execution to complete their respective parts lest they
will be liable to a breach and the above penalty thus applied.
12. Non-merger
All the provisions of this Agreement shall (to the extent that they remain to be observed and
performed) continue in full force and effect notwithstanding the registration of the Transfer of
Lease in the Purchaser’s name. All terms and obligations attached to this property will waiver once
the transaction is complete.
13. Stamp Duty and related costs
The Purchaser shall on the signing of this Agreement pay to the Vendor’s Advocates the following
Page 151 of 179
sums:
a) Approximate Stamp Duty at 2% of the Purchase Kshs. 2000,000/Price
b) Valuation and Registration costs for the sub-lease Kshs. 12,500/and the reversionary interest
c) Purchase of Reversionary Interest
Kshs. 50,000/
d) Electricity Meter Deposit
Kshs. 5,000/-
e) Water Meter Deposit
Kshs. 5,000/-
f) Deposit for Service Charge
Kshs. 15,000/-
g) Legal fees (inclusive of VAT @ 16%)
Kshs. /-
TOTAL
Kshs./-
14. Disclaimer
The Purchaser has notice of identity of the property and takes it that way nevertheless.
15. Assignments
In this Clause:
16.1.1 "Permitted Assignment" means an assignment of the whole benefit of this Agreement such
assignment being made subject to the provisions of Clause 16.4.
16.1.2 "Assignee" means any person approved in writing by the Vendor in whose favour a
Permitted Assignment is proposed to be made and who (prior to the making of such Permitted
Assignment) has agreed with the Vendor in such manner as the Vendor may reasonably require to
be bound by the provisions of Clause 16.4
Page 152 of 179
16.2
Subject to indemnifying the Vendor against all costs incurred by the Vendor in that
connection the Purchaser may on or after (but not before) the Certificate Date with the prior
consent in writing of the Vendor assign the benefit of this Agreement by means of a Permitted
Assignment to an Assignee who shall enter into a novation agreement with the Vendor in respect
of the obligations of the parties hereunder.
16.3
Save as provided in Clause 16.2 the Purchaser shall not assign charge or otherwise deal in
any way with the benefit of this Agreement in whole or in part provided that this Clause shall not
prevent the Purchaser from entering into a contract with any person before the Certificate Date
either for the assignment to such person on or after the Certificate Date of the whole benefit of this
Agreement (otherwise than by way of security).
16.4
The Vendor shall not be obliged to transfer the Apartment to an Assignee unless the
Assignee has first agreed with the Vendor in such manner as the Vendor may require to be bound
by the provisions of this Agreement and to perform and observe all the obligations on the part of
the Purchaser contained in this Agreement which remain to be performed and observed.
The Vendor will assign the Purchasers the interest upon full payment of the consideration.
16. Guarantee of title
I.
The Purchaser hereby accepts the right of the Vendor to sell the Apartment and shall not
require any evidence of or raise any objection requisition or inquiry in respect of the
Vendor's title to the Site.
II.
The Apartment is sold subject to the Conditions contained in the Lease registered in the
Lands Titles Registry in Nairobi as I.R. No. 2344-12with vacant possession but
otherwise free from encumbrances.
III.
The Purchaser, having been supplied with such information as the Vendor has concerning
the Apartment and the Project has entered into this Agreement with notice of and shall
raise no objection requisition or inquiry in respect of such terms and conditions.
Executed as a Deed.
17. General
Page 153 of 179
This contract is made between parties with legal capacity to contract and shall be deemed to have
followed all necessary steps, and any party that breaches all or any clause shall be held liable
accordingly.
18. Intention to be bound
The parties hereby have agreed and shown the intention to be bound and any derogation will be
to the detriment of the defaulter.
FIRST SCHEDULE
Part I
(The Site)
All that piece of land situate in the City of Nairobi in the Nairobi Area of the Republic of Kenya
containing by measurement Two decimal Nought Nought Nought (2.000) hectares or thereabouts
that is to say L.R. No 2344-12 which said piece of land is comprised in a Grant registered in the
Lands Titles Registry in Nairobi as I.R. 2344-12
and is with the dimensions abuttals and
boundaries thereof delineated on the plan annexed to the said Grant and more particularly on Land
Survey Plan Number 128421 deposited in the Survey Records Office at Nairobi.
SECOND SCHEDULE
(The Apartment)
The Apartment to be constructed on the Site which said Apartment for identification only is
Apartment Number B9 asshown on the sub division plan available for inspection in the
Vendor’s or its agents’ offices.
THIRD SCHEDULE
(Building Repairs)
The Building Contract is in the custody of the Vendor and upon request, it is available for
inspection by the Purchaser.
Page 154 of 179
Execution.
This Agreement is an executory agreement;
The Purchaser shall not be entitled to occupation or possession of the Apartment until the Purchase Price
has been paid, the Transfer of Lease has been duly executed and the sums stated in Clause 14 have
been paid in full.
That the Vendors and the Purchasers appoint the firm PRIME LAWYERS & CO
ADVOCATESto be their Advocate in this transaction.
IN WITNESS of which this Agreement has been duly executed on the date andyear herein-before
written.
Signed by the Vendors
OTOYO MARACH AND).............................................
)
SILALII MASKIO
)............................
in the presence of: )
)
)
)
I certify that I was present and saw…………………………...………………duly sign this
Agreement
Signature
witness……………………………………………………………………………….…….
Name……………………………………………………………………………..……………
Page 155 of 179
of
Address…………………………………….……………………………………………………….
Occupation…………………………………………………………………….……………………
Signed
by
the Purchaser
)
in the presence of:
)
)
)
)…………………………
)
)
)
I certify that I was present and saw…………………………...………………duly sign this
Agreement
Signature
of
witness……………………………………………………………………………….…….
Name………………………………………………………………………………..……………
Address………………………………….……………………………………………………….
Occupation…………………………………………………………………….……………………
DRAWN BY
Prime Lawyers & Co. Advocates, ,
1st Floor Suite No. 12,
P.O Box ,
Nairobi.
JUDICIAL REVIEW:
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KSL
MISCELLANEOUS APPLICATION NO.
Page 156 of 179
2014
IN THE MATTER OF AN APPLICATION BY……………FOR
LEAVETO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF UNPROCEDURAL REMOVAL FROM OFFICE OF
SPEAKEROF THE COUNTY ASSEMBLY OF
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF CONTRAVENTION OF THE COUNTY GOVERNMENT ACT
BETWEEN
………………..………………………………………APPLICANT
VERSUS
COUNTY ASSEMBLY OF ……………1ST RESPONDENT
THE
ATTORNEY
GENERAL
OF
THE
REPUBLIC
OF
KENYA………2NDRESPONDENT
CERTIFICATE OF URGENCY
I, of P.O.BOX 12345-78910 Nairobi, an Advocate of the High Court of Kenya do hereby certify
this matter as urgent for the reason that the Applicant has been unreasonably and unfairly
impeached and if the application is not certified as urgent the 1st Respondent shall continue
abusing their powers and appoint a new speaker to replace the Applicant.
DATED at NAIROBI this
day of
& CO.
Page 157 of 179
2014
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY
OMERA & COMPANY ADVOCATES,
SUNSET PLAZA, 2ND FLOOR,
SUNSET BOULEVARD,
P. O. BOX 12345-78910
NAIROBI
TO BE SERVED UPON:1. THE COUNTY ASSEMBLY ………… COUNTY,
COUNTY PLAZA, 1ST FLOOR,
P.O. BOX 234-000
.
2. THE ATTORNEY GENERAL
STATE LAW OFFICE
NAIROBI
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KSL
MISCELLANEOUS APPLICATION NO.
2014
IN THE MATTER OF AN APPLICATION BY …………………….FOR
LEAVETO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS
Page 158 of 179
AND
IN THE MATTER OF UNPROCEDURAL REMOVAL FROM OFFICE OF
SPEAKEROF THE COUNTY ASSEMBLY OF………………………….
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF CONTRAVENTION OF THE COUNTY GOVERNMENT ACT
BETWEEN
………………..………………………………………APPLICANT
VERSUS
COUNTY ASSEMBLY OF ……………1ST RESPONDENT
THE
ATTORNEY
GENERAL
OF
THE
REPUBLIC
OF
KENYA………2NDRESPONDENT
CHAMBER SUMMONS
(Under Order 53 Rule 1(1), (2) & (4) of the Civil Procedure Rules and Sections 8 & 9 of the
Law Reform Act)
EX-PARTE
LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers on the
day of
2014 at 9.00 O’clock in the morning or soon thereafter as counsel
for the Applicants may be heard for ORDERS THAT:
1. That the applicant be and is hereby granted an order of CERTIORARI to quash the
decision of the 1st Respondent impeaching her as the Speaker of the County Assembly of
……………. County.
Page 159 of 179
2. That the applicant be and is hereby granted an order of MANDAMUS that compels the
1st Respondent to reinstate the Applicant as Speaker of the County Assembly of ………
County.
3. That the leave so granted to institute Judicial Review applications in the nature of
certiorari and mandamus do operate as an order staying:
a. The respondent’s decision made on the day of May 2014 impeaching or removing
the applicantfrom the office of Speaker of the County Assembly of ;
b. Or, the withdrawal or deprivation or denial of any rights and privileges due to the
applicant as Speakerof the County Assembly of as set out in the County Government
Act and the Interim CountyAssembly Standing Orders or any other Law;
c. Or, the Respondent from commencing any process put in my motion to replace the
applicant asSpeaker of the County Assembly of .
4. That any other, further or alternative orders be made as the court may deem just and
expedient.
5. That the costs of this application do abide the outcome of the substantive application for
judicial review.
WHICH APPLICATION is based on the grounds that:
1. The applicant was elected as per the provisions of the County Government Act
prescribedprocedure as Speaker of the County Assembly of ………. to serve for a period
of five years until the endof the term of the respondent.
2. The County Government Act and the Interim County Assembly Standing Orders
prescribe theprocedure for the removal of the applicant from the office of the speaker of
the County Assembly.
Page 160 of 179
3. The procedure for the removal of the applicant from the offices of the speaker is therefore
statutorily prescribed to be exercised as prescribed.
4. A tender was advertised by the Procurement and Tendering Committee of the respondent
for the supply computer accessories to the county assemblyand after due process it was
awarded to a company ……
5. The Public Procurement Oversight Authority has released a report of its investigations in
the tendering malpractices at ….. County.
6. The said report of Public Procurement Oversight Authority has absolved applicant of any
involvement in the said tender.
7. The applicant is not a member of the procurement and tendering committee.
8. The respondent wrongfully and without reason used the foresaid allegations to illegally
remove theapplicant from office of the speaker of the County Assembly of .
9. The motion for the debate on the removal of the applicant from the office of the speaker
was unproceduralas it offended the express provisions of the standing Order 44 of the
respondent’s InterimCounty Assembly standing orders.
10. The respondent convened a sitting on a Monday in contravention of standing order
number 24 of theinterim County Assembly standing orders to discuss, debate and remove
the applicant.
11. The applicant in line with the constitutional provisions for a right to fair hearing and
standing Order58 of the standing orders was not afforded an opportunity to defend
herself against the allegations leveled against her before debate and voting was done by
the members of the respondent as the said notice was insufficient.
12. The 1st Respondent’s actions are unreasonable and a breach of the principles of natural
justice.
13. The impeachment or removal of the applicant from the office of the speaker was in
contravention ofthe prescribed procedure and the application of the allegations of
malpractice in the tender process despite having been cleared as a basis for debate on the
removal of the applicant from the office of thespeaker was unreasonable discriminative
and a politically orchestrated move to remove the applicantfrom office. The removal is
therefore illegal, unconstitutional and unreasonable.
Page 161 of 179
14. That in view of the contents of paragraph 12 foregoing the members of the respondents
did notrender a fair administrative action in line with Article 47 of the Constitution of
Kenya.
15. That as much as the respondent has statutory powers to put in motion a process for the
removal ofthe speaker, the procedure applied in removing the applicant from office was
not the statutorilyprescribed one. This court has the power to protect all processes and
procedure expressly set out in astatute, standing orders or any other law.
16. The applicant is a holder of an office that is prescribed by statute and his removal from
office shouldaccord to that law that prescribes the existence of that office.
17. Circumstances obtain for the leave sought to be granted and the stays do operate as an
orderpreserving that office.
WHICH APPLICATION is further based upon the grounds set out in the statutory statement
filed together with the Verifying Affidavit of ………….. and upon such other and further
grounds as may be adduced at the hearing hereof.
DATED at NAIROBI this
day of
OKBICHALONEGI
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY
OKBICHALONEGI& COMPANY ADVOCATES,
SUNSET PLAZA, 2ND FLOOR,
SUNSET BOULEVARD,
P. O. BOX 12345-78910
NAIROBI
TO BE SERVED UPON:3. THE COUNTY ASSEMBLY …………. COUNTY,
Page 162 of 179
2014.
COUNTY PLAZA, 1ST FLOOR,
P.O. BOX 234-000
KIANG’OMBE.
4. THE ATTORNEY GENERAL
STATE LAW OFFICE
NAIROBI
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KSL
MISCELLANEOUS APPLICATION NO.
2014
IN THE MATTER OF AN APPLICATION BY …………………..FOR
LEAVETO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF UNPROCEDURAL REMOVAL FROM OFFICE OF
SPEAKEROF THE COUNTY ASSEMBLY OF …………………….
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA 2010
AND
Page 163 of 179
IN THE MATTER OF CONTRAVENTION OF THE COUNTY GOVERNMENT ACT
BETWEEN
REPUBLIC………………...………………………………………………APPLICANT
VERSUS
COUNTY ASSEMBLY OF ……………1ST RESPONDENT
THE
ATTORNEY
GENERAL
OF
THE
REPUBLIC
OF
KENYA………2NDRESPONDENT
EX-PARTE:………………………….
NOTICE OF MOTION
(Under Order 53 Rule 1(1), (2) & (4) of the Civil Procedure Rules and Sections 8 & 9 of the
Law Reform Act)
TAKE NOTICE that the honourable court shall be moved on the day of 2014 at
O Clock
in the forenoon or soon thereafter as counsel for the applicant may be heard for ORDERS:
6. That the applicant be and is hereby granted an order of CERTIORARI to quash the
decision of the 1st Respondent impeaching her as the Speaker of the County Assembly of
County.
7. That the applicant be and is hereby granted an order of MANDAMUS that compels the
1st Respondent to reinstate the Applicant as Speaker of the County Assembly of ……
County.
8. That the leave so granted to institute Judicial Review applications in the nature of
certiorari and mandamus do operate as an order staying:
Page 164 of 179
a. The respondent’s decision made on the day of May 2014 impeaching or
removing the applicantfrom the office of Speaker of the County Assembly of
…………;
b. Or, the withdrawal or deprivation or denial of any rights and privileges due to the
applicant as Speaker of the County Assembly of……………. as set out in the
County Government Act and the Interim County Assembly Standing Orders or
any other Law;
c. Or, the Respondent from commencing any process put in my motion to replace
the applicant as Speaker of the County Assembly of ………………...
9. That any other, further or alternative orders be made as the court may deem just and
expedient.
10. That the costs of this application do abide the outcome of the substantive application for
judicial review.
WHICH APPLICATION is based on the grounds that:
See chamber summons
DATED at NAIROBI this
day of
& COADVOCATES
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY
& COMPANY ADVOCATES,
SUNSET PLAZA, 2ND FLOOR,
SUNSET BOULEVARD,
Page 165 of 179
2014.
P. O. BOX 12345-78910
NAIROBI
TO BE SERVED UPON:1. THE COUNTY ASSEMBLY COUNTY,
COUNTY PLAZA, 1ST FLOOR,
P.O. BOX 234-000
KIANG’OMBE.
2. THE ATTORNEY GENERAL
STATE LAW OFFICE
NAIROBI.
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KSL
MISCELLANEOUS APPLICATION NO.
2014
IN THE MATTER OF AN APPLICATION BY……………FOR
LEAVETO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF UNPROCEDURAL REMOVAL FROM OFFICE OF
SPEAKEROF THE COUNTY ASSEMBLY OF ……………
Page 166 of 179
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF CONTRAVENTION OF THE COUNTY GOVERNMENT ACT
BETWEEN
……………………..………………………………………APPLICANT
VERSUS
COUNTY ASSEMBLY OF ……………1ST RESPONDENT
THE
ATTORNEY
GENERAL
OF
THE
REPUBLIC
OF
KENYA………2NDRESPONDENT
STATUTORY STATEMENT
A). THE DESCRIPTION OF THE APPLICANT
1. The name of the Applicant is of P.O.BOX 98765-1234, . He is the Speaker of the County
Assembly of…………… County.
B) THE RELIEFS SOUGHT:2. The Applicant seeks the following reliefs:
a. AN ORDER OF CERTIORARI to move this Honourable Court to quash the
decision of impeachment of the Applicant by the County Assembly of County.
b. AN ORDER OF MANDAMUS compelling the Members of County Assembly
of County to reinstate the Applicant as the Speaker of the County Assembly.
c. That the leave so granted to institute Judicial Review applications in the nature of
certiorari and mandamus do operate as an order staying:
 The respondent’s decision made on the day of May 2014 impeaching or
removing her from the office of Speaker of the County Assembly of ;
Page 167 of 179
 Or, the withdrawal or deprivation or denial of any rights and privileges due to
her as Speaker of the County Assembly of……….. as set out in the County
Government Act and the Interim County Assembly Standing Orders or any
other Law;
 Or, the Respondent from commencing any process put in my motion to
replace her as Speaker of the County Assembly of ………...
d. Any other, further or alternative orders be made as the court may deem just and
expedient.
e. That the costs of this application do abide the outcome of the substantive
application for judicial review.
C) THE GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT:
SEE CHAMBER SUMMONS
DATED at NAIROBI this
day of
GOR MAHIA& CO.
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY
GOR MAHIA& COMPANY ADVOCATES,
SUNSET PLAZA, 2ND FLOOR,
SUNSET BOULEVARD,
P. O. BOX 12345-78910
NAIROBI
TO BE SERVED UPON:Page 168 of 179
2014.
1. THE COUNTY ASSEMBLY COUNTY,
COUNTY PLAZA, 1ST FLOOR,
P.O. BOX 234-000
KIANG’OMBE.
2. THE ATTORNEY GENERAL
STATE LAW OFFICE
NAIROBI
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT
MISCELLANEOUS APPLICATION NO.
2014
IN THE MATTER OF AN APPLICATION BY……….FOR
LEAVETO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF UNPROCEDURAL REMOVAL FROM OFFICE OF
SPEAKEROF THE COUNTY ASSEMBLY OF ………..
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF CONTRAVENTION OF THE COUNTY GOVERNMENT ACT
BETWEEN
………………..………………………………………APPLICANT
VERSUS
COUNTY ASSEMBLY OF .……………1ST RESPONDENT
Page 169 of 179
THE
ATTORNEY
GENERAL
OF
THE
REPUBLIC
OF
KENYA………2NDRESPONDENT
VERIFYING AFFIDAVIT
I, ……………., a resident of County and of P.O. Box 98765-1234, …… in the Republic of
Kenya, do hereby make oath and say as follows: 1. THAT, I am a male adult of sound mind working for gain in the Republic of Kenya
and thus competent to swear this affidavit.
2. THAT,
SWORN by the said
)
)
) ____________ _______________
)
This
day of
DEPONENT
2014
)
BEFORE ME:
)
COMMISSIONER FOR OATHS
DRAWN & FILED BY
GOR MAHIA & COMPANY ADVOCATES,
SUNSET PLAZA, 2ND FLOOR,
SUNSET BOULEVARD,
P. O. BOX 12345-78910
NAIROBI
Page 170 of 179
OFFER LETTER
OUR REF: NVR/GMI/2014
NOVEMBER, 2014
YOUR REF: TBA
DATE: 3RD
Mr. ,
P. O. BOX
NAIROBI
Dear Sir,
RE: LETTER OF APPOINTMENT
Following your successful interview for the post of …………….., I am pleased to inform you that you
have been offered employment at the ……. commencing from the 1st day of December 2014 when you are
required to report for duty, on the following terms and conditions of service subject to:
a) Being certified medically fit by a registered Doctor.
b) Production of your original academic and professional certificates for perusal and return; and
c)
Production of a valid Police Certificate of Good Conduct.
You will be required to step aside if through investigations you are implicated in corruption.
1.
POSITION
You will be engaged as the ……………………
2.
REPORTING
You will be responsible to the Board of Directors of the …………….
3.
DUTIES AND RESPONSIBILITIES
You shall see to the implementation of optimal and attractive products and services required to
address the …………This will entail inter alia:
4.
a.
b.
…
Maintain contacts with public authorities for the benefit of the….
c.
Any other responsibilities as may be assigned from time to time by the Board.
d.
All the above tasks must be performed in consultation with the Board of Directors.
PERFORMANCE MEASURES
Page 171 of 179
In addition to the duties and responsibilities detailed in this letter of appointment detailed
performance contract will be agreed between you and the Directors, the same of which will be
reviewed and appraised regularly.
5.
DURATION
This contract of employment will be for a period of two (2) years with the first six (6) months
being a probation period. The contract shall commence on the day you report and the Directors
reserve the right to terminate the contract prematurely depending on your performance.
6.
RENEWAL OF CONTRACT
Should you wish to be reappointed in the same position, you will be required to make a written
request at least two (2) months before the expiry date of this contract.
7.
PLACE OF WORK
You will be based at the …………..Gor Mahia County.
8.
REMUNERATION
The salary attached to this post is Ksh ………….. thousand (Ksh ………, 000) net of tax payable
monthly in arrears.
Other Allowances:
You will also be entitled to:
a. Accommodation;
b. Airtime (to be agreed upon from time to time)
c. Group Medical cover (to be established);
d. NHIF;
e. NSSF.
9.
PERFORMANCE RELATED AWARDS
Depending on your performance appraisal by the Directors and on their recommendation, and
subject to the overall performance of the ……. including ability to meet the cost, you may be
accorded a performance related award.
The key tasks agreed with the Directors at the
commencement of this appointment and thereafter will form part of this contract and will also
form part of the elements on which assessment of Performance Awards will be based.
10.
LEAVE
You will be entitled to thirty (30) working days leave per calendar year. Leave will not be carried
forward except with written approval. Any leave not taken during the leave year will be forfeited
unless authority to carry over the leave days due has been granted in writing by the Directors.
11.
DUTIES AND CODE OF CONDUCT
During your employment with the Resort you will:
a. Observe the ………… Rules and Regulations
b. Perform your duties diligently and faithfully
c. Perform any other duties given from time to time
d. Employ your time, attention and abilities to the services of the ………… as its General
Manager and employee.
Page 172 of 179
12.
CONFLICT OF INTEREST
Except with written consent of the Directors, you shall not, either directly or indirectly during
your service, engage or be concerned in any other service or business or receive any reward,
commission or profit by virtue of your office other than as provided for in this letter of
appointment.
You will be required to immediately disclose in writing to the Director all interest in any
ventures, contract, or arrangements which may conflict with the interest of the ……………….. or
the performance of your duties.
13.
CONFIDENTIALITY
You will not, during your engagement disclose any confidential matters of the …….. to any one
not authorized or entitled to receive them.
14.
EMPLOYMENT LAWS AND STAFF RULES AND REGULATIONS
You will also be subject to provisions of the Labour Laws (2007) of the Laws of Kenya and the
………………’s rules and regulations as issued and/or amended from time to time.
15.
TERMINATION
This employment may be terminated by either party giving one month written notice or payment
of one month’s gross pay in lieu of notice.
16.
OBLIGATIONS
This offer and your acceptance thereof will constitute a binding employment contract between
you and the ……………... This offer supersedes all other agreements and arrangements hitherto
entered into with you and the ……………….
17.
ACCEPTANCE
If you accept this offer and conditions as stipulated herein, please sign the duplicate copy of this
letter to signify your acceptance, then retain the original and return the duplicate to the
undersigned within thirty (30) days from the date of this letter failure to which it will be deemed
you have declined the offer.
Yours faithfully,
Mr. Obat Wasonga
Executive Director,
Research Department,
……………………….
ACCEPTANCE
I (name in full) ………………………………………………………………..
Page 173 of 179
Postal Address…………………………………………………………………
Hereby accept the above offer as per the Terms and Conditions stipulated herein.
Signature………………………………
Date………………………………….
EMPLOYMENT CONTRACT
BETWEEN
LIMITED
(‘the Employer’)
__________________________________________________
AND
__________________________________________________
(‘the Employee’)
_________________________________________________________
NAIROBI
………………………………
Advocates
P.O Box
Tel: +254
Mobile:
Email:
Fax:
Website:
CONTRACT OF EMPLOYMENT
Page 174 of 179
THIS CONTRACT OF EMPLOYMENT is made on the ……………. 2014 BETWEEN
……….., a Limited liability Company care of P.O. Box …………………., Kenya (hereinafter called
"theEmployer"which expression shall include its successors and assigns) of one part AND
…………..of P.O Box ………….. Nairobi, Kenya (hereinafter called "the Employee") of the other
part.
WHEREAS:
A. The Employer as the owner and administrator is desirous of engaging the services of the
Employee in its……. premises.
B. TheEmployee on the other hand has agreed and is willing to provide his managerial services
to the Employer.
IT IS HEREBY AGREED AS FOLLOWS;1. The employment contract shall commence on the …………… and the benefits attached to
the contract are as follows:
a) A net salary of Ksh ………… thousand (Ksh ……., 000) payable monthly in
arrears;
b) Accommodation;
c) Airtime (to be agreed upon from time to time on a monthly basis);
d) Group Medical cover (to be established);
e) NHIF;
f) NSSF;
g) Performance bonus whose mode of payment will be determined.
2. THE EMPLOYER HEREBY COVENANTS AS HEREUNDER;
a) After successful completion of the initial six (6) months’ probation period, the employee
shall perform the remainder of his contractual period.
b) The Employer shall have a right to terminate the contract prior to its expiration due to a
contractual breach of the Employee's obligation or for any other lawful cause by giving the
Employee one (1) months’ notice or payment in lieu of the notice.
Page 175 of 179
3. THE EMPLOYEE HEREBY CONVENANTS AS FOLLOWS;
a) The Employee shall exercise such powers and perform such duties as the Employer shall
from time to time determine and subject to any directions and restrictions from time to time
given and imposed by it.
b) The Employee’s duties under this Contract shall be read together with the Terms of
Reference as agreed between the Employer and the Employee.
c) The Employee shall be fully responsible and answerable for the diligent performance, proper
management and good workmanship of the entire ………… and more specifically to be
responsible for:
i)…
ii)….
d) The Employee shall devote his whole time and attention to the business of the Employer
and shall use his best endeavors to promote its interest and welfare and that of the entire
staff of the Employer
e) If the Employee at any time is incapacitated as foresaid, he shall during the first two (2)
months of incapacity receive his full salary and during the succeeding one (1) month of such
period of his salary after which his services will be terminated.
f) If he is incapacitated during any continuous period of more than two (2) months or if he is
incapacitated at different times in any one (1) year for more than two(2) months, then during
his incapacity any excess of either period mentioned he shall not be entitled to receive any
part of his salary and the Employer may at any time by notice in writing determine his
employment under this Agreement and he shall not be entitled to claim any compensation
from the Employer in respect of such determination.
g)
The Employee shall not at any time either during or after the termination of his
employment under this Agreement disclose to any person any information relating to the
company (its sister companies) or its customers or any trade secrets of which he becomes
possessed while acting as ……………..
h) The Employee is strictly prohibited from getting commissions/discount or Add ups and
working free of charge for any person or body or organization or company other than the
Employer herein above referred to and its sister companies. Likewise he is prohibited from
Page 176 of 179
involving himself in any political or similar related activities which could be detrimental to
himself or to the Employer.
i) The Employee shall not within one (1) year from determination of his employment under
this Agreement either on his own account or for any other person, firm or company either
directly or indirectly canvas solicit or endeavor to entice away from the Employer any
person, firm or company who at any time during the last year of his employment has been a
customer of or in habit of dealing with the Employer and further as an obligation shall not at
any time during the like period carry on either alone or in partnership or be employed or
interested indirectly in any similar business of the Employer and that which its sister
companies deal within Kenya.
j) Fares and travelling expenses for business trips made by the Employee where applicable on
behalf of the Employer shall be paid by the Employer.
k) The Employee shall be entitled to one (1) day off every week and shall be on duty for the
rest of the days of the month, including gazetted public holidays. The Employee shall notify
the Employer on which day he is taking the day off.
l) The Employee shall be responsible for damage caused to the Employer or third parties
through negligence in the cause of performance of his duties.
m) The Employee shall have the right to terminate this contract prior to its expiration by giving
one (1) month written notice in advance or payment in lieu of the notice. All claims of
medical conditions, illness shall be confirmed through an examination by a medical officer
and, if necessary, substantiated by a medical certificate.
n) The Employee shall be entitled to annual leave of 30 days but shall not be entitled to
allowances during this period, apart from the House Allowance. The time for leave shall be
determined after the Employee giving two (2) months’ notice or by mutual agreement with
the Employer.
o) Both parties have the firm desire of obtaining close effective co-operation. Any
misunderstanding occurring while this contract is in force shall at first be settled on an
amicable and understanding basis, and both parties shall endeavor to find a mutually
satisfactory solution.
p) The relationship of the parties hereto shall be governed by this contract and no additional
agreement shall be made unless discussed and agreed upon by both parties. However
Page 177 of 179
guidelines documents and working regulations shall be attached to and given to the
Employee by the Employer to guide him in the operations of the Hotel.
q) Both parties hereby undertake to fulfill their obligations set down in the agreement of
employment.
r) This contract shall be governed by the Laws of Kenya and subject in all respect to
jurisdiction of the Courts of Kenya.
IN WITNESS WHEREOF the parties have hereunto set their hands the date and year first herein above
written.
SEALED WITH THE COMMON SEAL this …………………………...
………………………..
(‘The Employer’)
in the presence of:
EXECUTIVE DIRECTOR,
SECRETARY
Signed by ………………. this 1st day of December, 2014
(‘The Employee’)
ID NO ……………..
in the presence of:
ADVOCATE
DRAWN BY:
Page 178 of 179
_______________________
………………………. Advocates
ACK Garden House, 3RD Floor
P.O Box
NAIROBI
Tel:
Fax:
Mobile:
Email:
Website:
Page 179 of 179