Escolar Documentos
Profissional Documentos
Cultura Documentos
1. SStay of execution of the judgment (Order XL1, Rule 4 (1) (2), Order L Rule 1 of the
Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling
provisions of Law)
2. Dismissal of suit for want of prosecution by the defendant (Section 3A of the Civil Procedure Act,
Order XVI Rule 5 (d) of the Civil Procedure Rules).
3. Leave to Appeal out of time--Sections 79G and 95 CPA & order 49 CPR
4. Dismissal of defendants counterclaim (Section 3A of the Civil Procedure Act,
Order XVI Rule 5 (d) of the Civil Procedure Rules)
5. Application for order of certiorari to be set aside (S.3A Civil Procedure Act and Order 50 r.17
Civil Procedure Rules)
6. Review & reinstatement (Under Sections 80 and 3A of the Civil Procedure Act, Cap 21, Order IXB
Rule 8, Order XLIV Rules 1, 2 and 3, of the Civil Procedure Rules)
7. Requesting for judgment on admissions(Under Order XII Rule 6 of the Civil Procedure Rules,
Section 3A of the Civil Procedure Act and All other enabling Provisions of Law)
8. Motions under order L
Rule 1. All applications to the court.
Rule 6. Service of notice on defendant served with summons to enter appearance but not
appearing.
CHAMBER SUMMONS
1. Striking out of plaint. (Under Order VI rule 13(1) (b) & (d) of the Civil Procedure Rules, section 3A
of the Civil Procedure Act and all other enabling provisions of the law)
2. Amendment of plaint. (Under Order VIA Rule 3(1), 5, 7 and 8, Order 44 of the Civil Procedure
Rules, Sections 95 and 3A of the Civil Procedure Act and all other enabling provisions of the law)
3. Third Party Application Order 1 rule 4
4. Arbitration (Section 6 of the Arbitration Act 1995, Rule 2 of the Arbitration Rules, 1997; Section
3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya; and all other enabling
provisions of law)
5. Examination of debtors property (Under Order XXI Rules 36 and 91 of the Civil Procedure
Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law.)
6. Contempt of court (Section 5 of the Judicature Act, Cap. 8 Laws of Kenya, Order 52 Rules of
the Supreme Court of England 1965, Section 3A of the Civil Procedure Act , cap 21 of the Laws
of Kenya)
7. Amendment of defence. (Under Order VIA Rule 3(1( (5) , 5, 7 and 8 of the Civil Procedure
Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law)
8. Amendment of judgment (Under Sections 3A and 99 of the Civil Procedure Act, Cap 21,of the
Laws of Kenya; Order XX Rule 3(3), Order L Rule 1 of the Civil Procedure Rules and all other
enabling provisions of the law)
ORIGINATING SUMMONS RETURNABLE BEFORE THE JUDGE SITTING IN CHAMBERS ORDER 36.
1. Order 36 rule 1(g) the determination of any question arising directly out of the administration of
the estate or trust.
2. Order 36 rule 3. A vendor or purchaser for the determination of any question which may arise
in respect of any requisitions or objections, or any claim for compensation; or any other
question arising out of or connected with the contract of sale (not being a question affecting
the existence or validity of the contract).
3. 3A - Summons by a Mortgagee or Mortgagor, Etc.
3B - Caveats.
3C - Extension of Limitation Period.
3D - Registration. of Title to Land.
3E - Application for Permission to Marry Under Age.
3F - Application Under the Registered Land Act.
3G - Application Under Chattels Transfer Act.
4 - Summons by a Member of a Partnership.
5 - Summons by Persons Interested in Deeds or Wills.
12 - Applications under this order shall be made in chamber summons
Motions and Other Applications order L
PRECEDENCE DOCUMENTS
1. AFFIDAVIT OF SERVICE
TITLE
I, ccccccccccc of Post Box number xxxxx Nairobi in the Republic of Kenya a licenced process server of this
Honourable Court make oath and state as follows:-
1. THAT acting on the instructions received from my employer, Messrs. Xxxxx and Company, Advocates for
the Plaintiff I went on 7th December 2000 to I. C. E. A. Building in the Office of Hamilton Harrison &
Mathews, Advocates for the Defendant to serve them with a Chamber Summon application dated 17 th
November 2000 and filed in Court on......................................
2. THAT on the same day at about 10.40 a.m. I served a copy of the same Chamber Summon on a clerk
working for the said Advocates.
3. He accepted service and acknowledged receipt by stamping and signing at the back of a copy for me,
which said acknowledged copy I attach hereto.
4. THAT what is deponed to hereinabove is true to the best of my knowledge, save as to matters deponed to
on information sources whereof I have disclosed and matters deponed to on belief grounds whereupon
have been given.
2. WILL
THIS is the last will and testament of me MMMMMMM of Post Office Box Number Nairobi and I hereby
revoke all former wills codicils and other testamentary dispositions made by me.
1. I appoint NNNN of Post Office Box Number and RRRRR of Post Office Box Number
Nairobi (hereinafter called my trustees which expression shall include the trustee or trustees for the
time being hereof) to be the executors and trustees of this my will.
2. I give to my trustees all my real and personal property whatsoever and wheresoever (including any
property over which I may have a general power of appointment or disposition by will).
3. My trustees shall hold the said property upon trust to retain or sell the same with power to postpone the
sale thereof for so long as they shall in their absolute discretion think fit without being liable for loss.
4. My trustees shall hold the proceeds of such sale and all unsold and retained property and my ready
money upon the following trusts:
(a) To pay my debts and funeral and testamentary expenses;
(b) Subject thereto for my wife DDD absolutely; but
(c) If my wife shall die in my lifetime then the same shall be held for my son AAAAAAA absolutely.
5. If my said son shall die during my lifetime or after my death leaving a child or children alive at or born after
my death then such child or children shall take by substitution and if more than one in equal shares the
share or shares of my estate which my said son would have taken under clause 4(c) above.
-VERSUS-
10. The contents of paragraph 10 of the Plaint are denied and the
Plaintiff put to strict proof thereof. Without any prejudice to
the foregoing, the Defendant avers that the demand for
payment under the Guarantee has never been dependent on the
transport agreement dated 23rd January, 2001 and that the
Defendant will not be in breach if it calls on that Guarantee. The
Defendant denies that there was any implied term in the
agreement not to demand payment on the Guarantee.
16. The Plaintiff has failed, refused and or neglected to pay the
aforementioned amount despite numerous requests to do so.
TO BE SERVED UPON: -
xxxxx & Company,
Advocates,
Corner House, 9th Floor,
P. O. Box xxxxx,
NAIROBI.
Dear Sir,
We act for Fffff Ltd. Transporters upon whose instruction we write to you as
follows: -
On or about 8th December 2000 along Eldoret - Nakuru road, our clients
driver, while in the course of his employment, was lawfully driving our
clients motor vehicle registration Number MB FFFFF 323 to which a trailer
registration mark ZA 6631 was attached. In blatant disregard of the traffic
rules and without due regard to other motorists and road users, you so
negligently drove, managed and/or controlled Motor Vehicle registration
Number FFFFF 056Y and further blindly attempted to overtake our clients
motor vehicle aforesaid, thereby permitting and/or causing the same to
violently collide with our clients vehicle aforesaid and consequently
occasioning enormous damage thereto. Subsequently, you were charged in
Nakuru Law Courts with careless driving.
Consequently, our client has incurred substantial expense and has been
subjected to loss, as set out hereunder, in repairing the said motor Vehicle
and trailer and as a result of the said accident generally.
Our instructions are to demand from you, as we hereby do, Your immediate
admission of liability and reimbursement of the said sum of Kshs.
1,655,100 being the amount due and owing to our client as a result of the
expense incurred and the loss suffered thereby as a consequence of the said
accident.
TAKE NOTICE that unless we receive WITHIN FOURTEEN (14) DAYS of the
date hereof, your written admission of liability and the said Sum of Kshs
1,655,100 in full payment, our instructions are to institute requisite legal
proceedings against you, at all time holding you liable for the costs thereby
incurred and other consequences ensuing therefrom.
We trust that this shall not be necessary and look forward to receiving your
positive response within the aforestipulated deadline.
Yours faithfully,
FFFFF
Cc ggggggg
Dear Madam,
We act for Mr. ,,,,,,, (hereinafter referred to as our client), upon whose
instructions we write to you as follows:-
In or about January 1999, upon your request, our client supplied to you cloth
calendars for the year 1999 and overcoats valued at Kshs. 18,000 and Kshs
11,780.00, respectively, full particulars are well within your knowledge. As
agreed between yourself and our client, payment by yourself for the said
calendars and overcoats was to be made upon delivery of the same to your
Homa Bay premises. In furtherance of the said agreement, you paid to our
client the sum of Kshs 3,000.00 and promised to remit the balance thereof in
the sum of Kshs 26,780 .00 soon thereafter.
Subsequent thereto, you issued two cheques to our client in purported part payment of the outstanding
balance herein which cheques were, upon presentation to the Bank, returned dishonoured and unpaid.
Be that as it may, upon several demands both formal and informal from our
client, on the 28th day of December 2001, you committed yourself in writing
to pay Kshs. 10,000.00 by the end of January 2002, and thereafter Kshs.
2,000.00 at end of every month until payment in full. Regrettably, at the end
of the said January, you decided to send our client a money order of a poultry
sum of Kshs. 2,000.00 instead of the agreed Kshs. 10,000.00. Since then,
you have refused to honour your obligation as per your said commitment. In
view of the foregoing, the balance currently due and owing from yourself to
our client is Kshs. 24,780.00.
Despite various promises by yourself to our client to make good the said
cheques and commitment, you have refused, failed and /or otherwise
neglected to honour your said promises. Further, despite several reminders
to yourself requiring that you pay the aforesaid outstanding sum, you have
persisted in your refusal, failure and /or neglect to pay the said sum of Kshs.
24,780.00 or any part thereof.
Accordingly, our instructions are to demand from you, as we hereby do, full
and immediate payment of the said outstanding amount of Kshs.24,780.00
together with interest thereon from the respective due dates at the
commercial rates prevailing from time to time until payment in full.
We trust that this will not be necessary and look forward to hearing from you
within the aforementioned time.
Yours faithfully,
Cccccccccccccc
gggggggggggggg
Cc Client.
Dear Sir,
Since 1988, our client was engaged by your Organization as a Consultant. The terms and conditions of
our client's contract of employment were as contained in one -year Consultancy Agreements which by
mutual consent of the parties, were renewed as and when the same expired. The last of such Agreement
was signed by the parties on 8th July, 1999.
In the early morning of 7th January 2000, whilst our client was in the ordinary course of his employment,
he was attacked by a clique of members of the I.C.R.C Somalia Delegation who are well known by our
client, details whereof are well within your knowledge. We are instructed that this was a malicious internal
scheme, which had been skilfully organised under the conspiracy of two of your employees, agents or
servants namely, Messr. Abdiaziz Osman Mohamoud and Raymond Deserzens against our client, with
the aim of frustrating his efforts to perform his duties efficiently and/or eliminating him altogether. As
subsequent events revealed, the said heinous act was perpetrated with the active collusion and
connivance of your organization and every effort was made thereafter to conceal the facts. It is
unfortunate that your organization, as an international humanitarian organization, could have engaged in
or condoned such illegal acts.
In addition to the foregoing, your organization purported to terminate our client's contract of employment
without any lawful basis for doing so. Even then, your Organization refused, neglected and/or otherwise
failed to pay to our client such sums of money and other compensation as was lawfully due to him.
Pursuant to the foregoing, we are instructed that pursuant to the express and/or implied terms of the said
Consultancy Agreement as read together with the Consultancy Regulations, our client is entitled to claim
the following from your organization: -
Despite numerous reminders to yourselves, you have refused, neglected and/or otherwise failed to
respond to our client's letters and/or make good his bona fide claim.
Accordingly, our instructions are to demand from you, as we hereby do, that you confirm to us in writing,
within the next SEVEN (7) DAYS that: -
a) You shall immediately reinstate our client to his employment without any loss of status,
emoluments or benefits attendant thereto.
TAKE NOTICE that unless we receive your positive response as aforestated with the stipulated deadline
of SEVEN (7) DAYS of the date of this letter, our instructions are to institute legal proceedings against
yourselves without any further recourse to yourselves whatsoever, holding you liable for all costs thereby
incurred and other consequences ensuing therefrom.
We trust that this will not be necessary and we look forward to hearing from you within the
aforementioned time.
Yours faithfully,
sssssssssssssss
cc. 1. Client
2. sssssss.
ssssssss La Paix
Memo of appeal
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
CIVIL APPLICATION NO. NAI. OF 2002
IN THE MATTER OF AN INTENDED APPEAL
BETWEEN
AND
MMMMMMMMMMM........................1ST RESPONDENT
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
MMMMMMMMMMM.................................1ST APPLICANT
PPPPPPPPPPPPPPPPP......................................................2ND APPLICANT
VERSUS
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 1 st 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 2 nd 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.
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 Magistrates 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.
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
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.
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 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.
The Appeal be allowed and a declaration be made to the extent that the
Appellant properly made a complaint to the police on 7 th ,,,,,,,, 1999 believing that
an offence had been committed against it in the period between 12 TH 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.
TO:-
DEPUTY REGISTRAR
COURT OF APPEAL
KKKKKKK .. .. .. .. .. .. .. .. .. .. PLAINTIFF/APPLICANT
VERSUS
(Under Sections 3A and 99 of the Civil Procedure Act, Cap 21,of the Laws of Kenya;
Order XX Rule 3(3), Order L Rule 1 of the Civil Procedure Rules and all other enabling
provisions of the law)
5. THAT such further Orders and/or directions be given to the intent that
the amounts payable by the Defendant to the Plaintiff be fully and
finally determined.
7. THAT however, the learned trial Judge in his said Judgment, relied
on the Plaintiffs Advocates inadvertent arithmetical miscalculation
and deducted the erroneous sum of Kshs. 1,177,500.00 from the
amount of Kshs. 13,689,830.00 awarded to the Plaintiff on account
of loss of future earnings due to premature determination of the
Plaintiffs contract of employment as aforesaid.
(a) The Plaintiff would be unable to obtain his just fruits therefrom.
(b)The entire trial process would be rendered a nullity.
(c) The ends of justice and equity would be defeated and frustrated.
11. THAT in view of the foregoing, there is good and sufficient cause for
amendment of the said Judgment as prayed.
12. THAT this application has been made diligently and without
unreasonable delay.
13. THAT accordingly, in the interests of justice and fairness , the said
Judgment ought to be reviewed as prayed.
WHICH APPLICATION is further supported by the Affidavits of KKKKKKK
and on such other or further grounds as may be adduced at the hearing
thereof.
NOTE: If any party served does not appear at the place and time abovementioned,
such orders will be made and proceedings taken as the Court will deem just
and expedient.
XXXXXXXXXXXXX .. .. .. .. .. ..PLAINTIFF
-VERSUS -
NOTICE OF MOTION
2. THAT the costs of this application and of the entire suit be awarded to
the Defendant.
WHICH APPLICATION is, based on the ground that the Plaintiff has
neglected and/or otherwise failed to set down the suit for hearing and/or or
otherwise failed to take any steps to prosecute the same for a period of over
twelve months.
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
XXXXXXXXXXXXX .. .. .. .. .. .. . PLAINTIFF
-VERSUS -
AFFIDAVIT
3. THAT pursuant thereto, upon perusing the Plaint and Summons to Enter
Appearance, we entered appearance for the Defendant and on 8th March,
1995, filed the Defendant's Statement of Defence and Counterclaim.
4. THAT on 16th March, 1995, the Plaintiff filed his reply to Defence and
Counterclaim.
5. THAT when the case came up for hearing on 13 th September, 1996, the
same could not proceed since the Plaintiff was not present on the material
date as a consequence whereof the matter was stood over generally.
6. THAT the case was again fixed for hearing on 28th January, 1998 when the
same could not proceed since the Plaintiff's Advocate was apparently held
up in the Court of Appeal.
9. THAT I verily believe that this neglect and/or failure to set down the suit for
hearing amounts to an abuse of the process of this of this Honourable
Court.
10. THAT for reasons aforesaid, it is just and expedient that this case be
dismissed with costs for want of prosecution.
11. THAT I swear this Affidavit in support of the Defendant's Application herein
seeking the dismissal of this suit for want of prosecution.
12. 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.
LeavetoAppealoutoftimeSections79Gand95CPA&order49CPR
REPUBLICOFKENYA
INTHEHIGHCOURTATMACHAKOS
MISCELLANEOUSAPPLICATIONNO.OF2000
AAAAAAAAAALIMITED..PROPOSEDAPPELLANT
VERSUS
BBBBBBBBBBBPROPOSEDRESPONDENT
NOTICEOFMOTION
(Undersections79Gand95oftheCivilProcedureActand
OrderXLIXRule5oftheCivilProcedureRules)
TAKENOTICEthatthisHonourablecourtwillbemovedonthedayof
2000at9.00oclockintheforenoonorsoonthereaftersoasCounselforthe
proposedappellantmaybeheardonanapplicationfororders:
againstthewholejudgementoftheSeniorResidentMagistratesCourtat
Kangundodeliveredon7thApril,2000withoutnoticetotheapplicant.
filedandserved.
3. THATthecostsofthisapplicationbeprovidedfor.
WHICHAPPLICATIONisbasedonthefollowinggrounds:
a. That the Advocate for the Proposed Appellant was unaware of the
deliveryofjudgementasthesamewastohavebeendeliveredon9 th
March,2000onwhichdatetheResidentMagistratewasnotsittingand
no subsequent dates for judgement were given and none could be
establisheddespiteallduediligence.
b. Thatitwasnotuntilaproclamationwasissuedagainsttheproposed
appellanton19thApril,2000thatthesaidAdvocatebecameawarethat
judgementhadbeendelivered.
c. That soon thereafter on 20th April, 2000, the said Advocate filed an
application for stay of execution pending appeal in the Resident
MagistratesCourtwhichapplicationwasheardon28 thApril,2000and
rulingdeliveredon19thMay,2000.
d. ThatbythetimethesaidAdvocatecouldobtainsufficientinstructions
fromtheproposedappellant,thetimeallowedtofileanappealhadrun
out.
e. Thattheproposedrespondentisunlikelytosufferanyprejudice.
AND WHICH APPLICATION is supported by the annexed affidavit of
EEEEEEEEE Advocateandotherreasonsandgroundsasmaybeadduced
atthehearinghereof.
DATEDatNairobithisdayof2000.
BBBBBBBBBBBANDCOMPANY
ADVOCATESFORTHEPROPOSEDAPPELLANTS
DRAWNANDFILEDBY:
BBBBBBBBBBBandCompany
Advocates,
BBBBBBBBBBBHouse,
BBBBBBBBBBBBBBBBBBBBBB,
P.O.Box,
NAIROBI.
TOBESERVEDUPON:
NNNN&Company
P.O.Box
NAIROBI.
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.
LeavetoAppealoutoftimeSections79Gand95CPA&order49CPR
REPUBLIC OF KENYA
INTHEHIGHCOURTATMACHAKOS
MISCELLANEOUSAPPLICATIONNO.OF2000
AAAAAAAAAALIMITED..PROPOSEDAPPELLANT
VERSUS
BBBBBBBBBBBPROPOSEDRESPONDENT
NOTICEOFMOTION
(Undersections79Gand95oftheCivilProcedureActand
OrderXLIXRule5oftheCivilProcedureRules)
TAKENOTICEthatthisHonourablecourtwillbemovedonthedayof
2000at9.00oclockintheforenoonorsoonthereaftersoasCounselforthe
proposedappellantmaybeheardonanapplicationfororders:
againstthewholejudgementoftheSeniorResidentMagistratesCourtat
Kangundodeliveredon7thApril,2000withoutnoticetotheapplicant.
filedandserved.
6. THATthecostsofthisapplicationbeprovidedfor.
WHICHAPPLICATIONisbasedonthefollowinggrounds:
f. That the Advocate for the Proposed Appellant was unaware of the
deliveryofjudgementasthesamewastohavebeendeliveredon9 th
March,2000onwhichdatetheResidentMagistratewasnotsittingand
no subsequent dates for judgement were given and none could be
establisheddespiteallduediligence.
g. Thatitwasnotuntilaproclamationwasissuedagainsttheproposed
appellanton19thApril,2000thatthesaidAdvocatebecameawarethat
judgementhadbeendelivered.
h. That soon thereafter on 20th April, 2000, the said Advocate filed an
application for stay of execution pending appeal in the Resident
MagistratesCourtwhichapplicationwasheardon28 thApril,2000and
rulingdeliveredon19thMay,2000.
i. ThatbythetimethesaidAdvocatecouldobtainsufficientinstructions
fromtheproposedappellant,thetimeallowedtofileanappealhadrun
out.
j. Thattheproposedrespondentisunlikelytosufferanyprejudice.
EEEEEEEEE Advocateandotherreasonsandgroundsasmaybeadduced
atthehearinghereof.
DATEDatNairobithisdayof2000.
BBBBBBBBBBBANDCOMPANY
ADVOCATESFORTHEPROPOSEDAPPELLANTS
DRAWNANDFILEDBY:
BBBBBBBBBBBandCompany
Advocates,
BBBBBBBBBBBHouse,
BBBBBBBBBBBBBBBBBBBBBB,
P.O.Box,
NAIROBI.
TOBESERVEDUPON:
NNNN&Company
P.O.Box
NAIROBI.
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.
Motion stay of execution
REPUBLIC OF KENYA
UUUUUU
DDDDDD........................................................................PLAINTIFFS
VERSUS
PPPPP.................................................................DEFENDANT
AND
CERTIFICATE OF URGENCY
We, XXX & COMPANY ADVOCATES, who have the conduct of this
suit on behalf of the Plaintiffs, hereby certify that this Application is
extremely urgent and should be heard on a priority basis in that the
Plaintiffs are threatened with imminent execution of the Decree herein.
If the said execution occurs before this Application is heard and the
orders sought therein granted, the Plaintiffs will suffer irreparable loss
and damage, hence the urgency of this Application.
UUUUUU
DDDDDD........................................................................PLAINTIFFS
VERSUS
PPPPP.................................................................DEFENDANT
AND
KENYA ROADWAYS
LIMITED...............................................................THIRD PARTY
NOTICE OF MOTION
(b) THAT if the said stay of execution is not granted, the Applicants
Appeal will be rendered nugatory and the Applicants will suffer
irreparable damage.
(c) THAT unless the Application is granted, the Respondent will levy
execution against the Applicants in an effort to recover its costs.
(d) THAT the Applicants are ready and willing to deposit such
nominal sum as this Honourable Court may order to be so
deposited into Court as condition for stay.
(e) THAT substantial loss will result to the Applicants unless the
orders sought are granted.
(f) THAT this Application has been made without unreasonable
delay.
TO BE SERVED UPON:
UUUUUU
DDDDDD........................................................................PLAINTIFFS
VERSUS
PPPPP.................................................................DEFENDANT
AND
KENYA ROADWAYS
LIMITED...............................................................THIRD PARTY
AFFIDAVIT
1. THAT I am the first Plaintiff in this case and the second Plaintiff is
my daughter. I am therefore competent to swear this Affidavit.
6. THAT I am aware that, on 7th February, 2002, two days after the
delivery of the judgment, our Advocates on record filed a Notice
of Appeal and requested for typed proceedings. Annexed hereto
and marked as exhibits DKR1 and DKR2 are true copies of
the Notice of Appeal and the letter to the Deputy Registrar
requesting for typed proceedings.
10. THAT in view of the foregoing, unless the Application for stay is
heard urgently on a priority basis, the Defendant threatens to
levy execution and attachment. I am advised by my Advocates on
record that, the Defendant did, on 2 nd April, 2002, lodge its Bill of
Costs for taxation. I am further advised that the taxation is
scheduled for 28th May, 2002.
TO BE SERVED UPON:
UUUUUU
DDDDDD........................................................................PLAINTIFFS
VERSUS
PPPPP.................................................................DEFENDANT
AND
KENYA ROADWAYS
LIMITED...............................................................THIRD PARTY
AFFIDAVIT
1. THAT I am the second Plaintiff in this case and the first Plaintiff is
my mother. I am therefore competent to swear this Affidavit.
5. THAT unless the Application for stay of execution is heard and the
orders sought therein granted, the Defendant will commence
execution proceedings to my utter loss and damage.
6. THAT I have just began working recently and I earn a modest salary
and I am not in any position to meet the Defendants costs when
taxed. I therefore ask that this Court do stay the execution of the
Decree pending the Appeal, which I believe has good chances of
success.
TO BE SERVED UPON:
XXX& Company
Advocates
House
4th Floor
Haile Selassie Avenue
P O Box XXXXX
NAIROBI. Ref.
REPUBLIC OF KENYA
UUUUUU
DDDDDD........................................................................PLAINTIFFS
VERSUS
PPPPP.................................................................DEFENDANT
AND
KENYA ROADWAYS
LIMITED...............................................................THIRD PARTY
AFFIDAVIT
2. THAT I do know for a fact that the first Plaintiff is a widow and
housewife since May 1996 when her husband passed away in a
road traffic accident.
3. THAT I am the person who recommended that the Plaintiffs file a
suit through Messrs. XXX & Company Advocates for recovery of
damages. I have been constantly updated of the progress of this
matter.
4. THAT I am aware that the firm above mentioned did waive fees
on account of the Plaintiffs impecunious disposition.
5. THAT I am also aware that Mrs. Rupra and her daughter have
been receiving financial support and necessaries from our
religious community since the death of her husband.
TO BE SERVED UPON:
XXXXXXX
T/A XXXXXXX MOTOR WORKS.. .. .. PLAINTIFF
VERSUS
NOTICE OF CHANGE
TAKE NOTICE that Xxxxxxx and Company, Advocates, Central Building, 1 st Floor, P O
Box xxxxxxx, Nairobi has been appointed by the Plaintiff to act on his behalf in
place of Xxxxxxx and Company Advocates New Hurlingham Plaza P. O. Box
xxxxxxx Nairobi. ALL future correspondence should be addressed to Xxxxxxx
and Company, Advocates aforesaid.
TO BE SERVED UPON:-
Advocates
NAIROBI
REPUBLIC OF KENYA
VERSUS
AMENDED PLAINT
2. The 1st and 2nd Defendants are male adults of sound mind residing
and working for gain in Nairobi within the Republic of Kenya.
Service of Summons upon both Defendants shall be effected
through the Plaintiff's Advocates' offices.
3. At all material times, the 1st Defendant was the registered owner
of motor vehicle registration number RRRR 561, while the 2 nd
Defendant was the servant, agent and/or employee of the 1 st
Defendant.
10. Despite demand having been made and intention to sue having
been given, the Defendants have failed, refused and/or ignored to
settle the Plaintiff's claim.
11. The Plaintiff avers that there is no other suit pending and further
avers that there have been no previous proceedings in any Court
between the Plaintiff and the Defendant over the same subject
matter.
12. The cause of action arose at Nairobi within the jurisdiction of this
Honourable Court.
c) Any other or further relief that this Honorable Court may deem fit
and just to grant.
TO BE SERVED UPON
1. DDDDDDD
2 EEEEEEEE
REPUBLIC OF KENYA
AAAAAAAAAAAAAAAAAAAA.PLAINTIFF
-VERSUS-
SSSSSSSSSSSSSSSSDEFENDANT
PLAINT
circumstances.
accident.
Plaintiff thereat.
Code.
5. So far as is necessary, the Plaintiff will rely on the
liable.
malleolus.
amenities.
TO BE SERVED UPON:
SSSSSSSSS
P O Box
Nairobi
Plaint breach of agreement
REPUBLIC OF KENYA
VERSUS
PLAINT
4. The Plaintiff was and is still engaged in the business of, inter alia,
manufacturing and selling steel rods and billets and other co-related
products (hereinafter referred to as "the said goods").
The said Agreement was made partly orally, partly in writing and
partly by conduct.
(a) Account Statement for the period August 1996 to April 1997.
(b) Delivery notes issued for the period 17 th August, 1996 to 2nd
November, 1996.
(c) Invoices dispatched with the said goods for the period 17 th
August, 1996 to 2nd November, 1996.
(d) Orders in respect of 1120 pieces of Square Twisted Steel Bars
for the period 17th August, 1996 to 2nd November, 1996.
(e) Credit notes dated 2nd November, 1996, 29th August, 1996 and
17th August, 1996 respectively.
(f) Various correspondence exchanged between the Plaintiff and
the 2nd Defendant and a demand notice from the Plaintiff to
the 1st Defendant dated 21st April 1999.
At the hearing of this suit, the Plaintiff shall crave the leave of
the Court to refer to and produce its copies of the said
documents for their full meaning, terms and effect thereof.
(b) The Plaintiff delivered the said goods to the said project's
construction site.
7. To the extent that they are material to this suit, the terms and
conditions of the said agreement included, but were not limited to
the following:-
a) The 1st and 2nd Defendant would place an order for the said goods to
the Plaintiff.
10. In flagrant breach to the terms of the said agreement, the 1 st and
2nd Defendants have neglected and/or refused to make good their
part of the said agreement and this despite the Plaintiff forwarding
invoices, statement of accounts and a letter dated 21 st April, 1999 to
the 1st Defendant indicating the outstanding amount on April 1999
as KShs.289,796.30. To date the 1 st and 2nd Defendants have failed
to settle the said amount with the result that the same remains due
and owing to the Plaintiff.
11. Accordingly, the Plaintiffs claim against the 1st and 2nd
Defendants is for the sum of Kshs.289,796.30 together with interest
thereon at the rate of 3% per month from 30th June, 2000 until
payment in full.
b) Costs of this suit together with interest thereon at such rate and for
such period as this Honourable Court may deem fit to order.
c) Any other just and equitable relief as this Honourable Court may
deem appropriate.
TO BE SERVED UPON:
REPUBLIC OF KENYA
YYYYYYY.. .. .. .. PLAINTIFF
-VERSUS-
XXXXXXXXX .. .. .. .. .. DEFENDANT
PLAINT
1. The Plaintiff is an adult male of sound mind residing and working for
YYYYYYY,Nairobi.
the High court of Kenya under the name YYYYYYY & Company
Advocates.
and the Plaintiff agreed to purchase the parcel of land known as L.R.
sum of KShs. 440,000/= being 10% of the purchase price was paid
parcel of land. The Plaintiff will crave the leave of this Honourable
Court at the hearing to refer to the said Agreement for its full tenor,
5. The said Agreement was varied to the extent that the same was
behalf in the purchase and transfer of the said parcel of land from
legal fees;
8. The Plaintiff avers that it was agreed between the Plaintiff and the
held by the Defendant in trust for the Plaintiff and that the same was
agreed between the Plaintiff and the Defendant inter alia, that:
and transfer,
Defendant.
respectively
seeking confirmation by the Defendant that he (the Defendant) had
inter alia, registered the Transfer in his favour, and further that the
11. During this period the Plaintiff and his wife made various visits to
the Defendants office with a view to trying to meet with him in order
to find out not only how far this transaction had progressed but also
calls. Both the visits and the telephone calls to the Defendants office
General, the Law society of Kenya as well as the Chief Justice. The
Complaints Commissioner which the Plaintiff did vide his letter dated
him to recover the monies paid to the Defendant and finalise the
April, 1996 to pursue the purchase and transfer of the said property
14. As a result of not being able to obtain neither his documents nor
his money from the Defendant, the Plaintiff was able to discover that
1995. The Plaintiff avers that the Defendant not only negligently
1995 and 10th June, 1996 at the rate of 20% per annum.
(b) The sum of KShs.112, 320/= being the Plaintiffs total cost of
Nairobi between July 1995 and June 1996 for purposes of meeting
(c) The sum of KShs.60,000/= being the cost of faxes and telephone
(d) The sum of KShs.260,000/= being the total rents payable to KBL
period between 16th October, 1995 and 13th June, 1996 which
rent the Plaintiff would not have incurred had the Defendant
advocates aforesaid.
(e) The sum of KShs. 30,000/= being deposit paid to the Defendant
two days after the arrest aforesaid, the Defendant gave him a
interest thereon.
In the circumstances, the Plaintiff avers that the Defendant has been
Plaintiff.
PROFESSIONAL NEGLIGENCE
(a) Failing to pay the said sum of KShs. 3,960,000/= or any part
reasonable time.
(b) Failing to register the Transfer in favour of the Plaintiff within
(d) Failing to hold the said sum of KShs. 3,960,000/= in trust for
bearing account.
peril.
And the Plaintiff also claims general damages for the anxiety and
15. The cause of action arose at Nairobi within the jurisdiction of this
Honourable Court.
(c) Interest on (a), (b) and (d) above at the rate of 20% per annum.
(e) Any other or further relief that this Honourable Court may deem
fit to grant.
REPUBLIC OF KENYA
WWWWWWWWWWWW............................PLAINTIFF
VERSUS
NNNNNNNNNNNNN..........................1ST DEFENDANT
CHAMBER SUMMONS
(EX-PARTE)
LET ALL PARTIES concerned attend before the Honourable Magistrate in
Chambers on the day of 2002 at 9.00 O'clock in the forenoon or
soon thereafter so as Counsel for the 2 nd Defendant/Applicant may be heard on
an Application for ORDERS:-
1. That the 2nd Defendant will seek indemnity and/or contribution from the
proposed Third Parties for any liability that may be found accruing from the
2nd Defendant to the Plaintiff.
2. That it is in the interests of justice that the proposed Third Parties be joined
to facilitate the determination of the issue of liability.
If any party does not appear at the time and place abovementioned,
such order will be made and proceedings taken as the Court may
deem just and expedient"
REPUBLIC OF KENYA
WWWWWWWWWWWW............................PLAINTIFF
VERSUS
NNNNNNNNNNNNN..........................1ST DEFENDANT
SUPPORTING AFFIDAVIT
3. THAT on the 7th December, 2001, the Plaintiff, through its Advocates,
Messrs. Ngeno Wangalwa & Company Advocates instituted a suit against
the Defendants by filing a Plaint on 7 th December, 2001. Pursuant thereto,
the 2nd Defendant entered appearance on 20th December, 2001 and filed its
Defence on 9th January, 2002 through its advocates on record,
LLLLLLLLLLLL & Company, Advocates.
4. THAT in the said Defence, the 2nd Defendant has averred that it is not
liable for the damages and costs arising out of the alleged accident caused
by Motor Vehicle Registration Number KKKKKKKKKKKK842C ("the said
motor vehicle) or any part thereof or at all.
5. THAT in the said Defence, the 2nd Defendant has further averred that it has
been wrongfully sued and should not be party to this suit.
6. THAT in the said Defence, the 2nd Defendant has further averred in the
alternative and without any prejudice whatsoever to any of the foregoing
matters therein, that it was only registered as owner of the said Motor
Vehicle only by virtue of being a re-financier to Wheelbase Limited and
KKKKKKKKKKKK Transporters who were the true owners of the Motor
vehicle. The 2nd defendant was therefore not the true owner of the said
Motor vehicle at all material times as alleged.
7. THAT the 2nd Defendant, pursuant to Consent Order recorded on 29th May,
2001 in Milimani HCCC KKKKKKKKKKKK of 2001, has transferred to
Wheelbase Limited, one of the proposed Third Parties, the logbook and a
blank executed transfer form for the said Motor vehicle KKKKKKKKKKKK
842 Annexed herewith and marked "NDC1" are true copies of the Decree
in HCCC KKKKKKKKKKKK of 2001 and a file copy of a letter written by
the 2nd Defendant and accepted by Wheelbase Limited.
8. THAT having received the transfer forms and the logbook for motor vehicle
registration number KKKKKKKKKKKK 842 and since the 2nd Defendant
has never had actual possession of the motor vehicle, it is clear that the
proposed Third Parties are necessary parties to this suit.
9. THAT in view of the foregoing, the 2nd Defendant has wrongly been sued
by the Plaintiff.
12. THAT I swear this Affidavit in support of the Application herein for leave to
issue and serve a Third Party Notice upon Wheelbase Limited and
KKKKKKKKKKKK Transporters.
WWWWWWWWWWWW............................PLAINTIFF
VERSUS
NNNNNNNNNNNNN..........................1ST DEFENDANT
TO
WWWWWWWW LIMITED
NAIROBI
KKKKKKKKKKKK TRANSPORTERS
NAIROBI.
TAKE NOTICE that this action has been brought by the Plaintiff against the 2 nd
Defendant. In it, the Plaintiff claims against the 2 nd Defendant in accordance with
the attached Plaint. The 2nd Defendant disputes the Plaintiffs claim on the
grounds set out in the Defence but in the event of his being held liable to the
Plaintiff, the 2nd Defendant claims that it is entitled to indemnity and/or
contribution on the grounds, inter alia, that you are the lawful owners of the Motor
Vehicle Registration Number KKKKKKKKKKKK842C, the subject matter of this
suit by virtue of the accident that it caused as more specifically explained and or
averred in the Plaint.
AND FURTHER TAKE NOTICE that if you wish to dispute the Plaintiffs claim
against the 2nd Defendant or the 2nd Defendants claim against yourselves, you
must appear within 15 days after the service of this Notice on yourselves,
inclusive of the date of service, otherwise you will be taken to admit the Plaintiffs
claim against the 2nd Defendant and the 2nd Defendants claim against you and
you will be bound by any Judgment given in this suit.
.r.REPUBLIC OF KENYA
-VERSUS-
MAHIU BANK
LIMITED.. .. .. .. .. .. .. ..1ST DEFENDANT
.. .. .. .. .. ..2ND DEFENDANT
CHAMBER SUMMONS
(Under Order VIA Rule 3(1( (5) , 5, 7 and 8 of the Civil Procedure Rules, Section 3A of
the Civil Procedure Act and all other enabling provisions of the law)
ORDERS :-
1. THAT the 1st Defendant/Applicant be granted leave to amend its Defence filed
wishes.
3. The time allowed under the Civil Procedure Act and the Civil Procedure
Rules for amendment of pleadings has since expired
MERALI and on such other grounds and reasons as may be adduced at the hearing
hereof.
MWEWE &Company
Advocates
MWEU
MWEUetum Drive
P.O.Box MMMMM
TO BE SERVED UPON:
Advocate
International Life
4th floor
Mama Ngina Street
P. O. box MMMMM
.
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
-VERSUS-
MAHIU BANK
LIMITED.. .. .. .. .. ..1ST DEFENDANT/APPLICANT
AFFIDAVIT
I of P.O. Box 14001 in the Republic of Kenya do make oath and solemnly
state as follows:
6. THAT the proposed amendments will not occasion any prejudice to the
Plaintiff /Respondent
9. THAT I verily believe that it is in the interest of justice that the Defendant
should be granted leave to amend its Defence herein, so as to bring to
fore the real matters in controversy between the parties, before this
matter can be set down for hearing.
10. THAT in all the circumstances of this case and for the ends of justice
in this case to be met, the orders sought in the application to amend the
Applicants Defence herein in support whereof I swear this Affidavit,
ought to be granted.
Advocates
MWEU )
MWEUetum Drive
P.O.Box MMMMM
TO BE SERVED UPON:
MWEU & Co.
Advocates
Kencom
1st Floor, Room
City Hall Way
P. O. Box MMMMM
Advocate
International Life
4th floor
Mama Ngina Street
P. O. box MMMMM
.
Summons amendment of plaint
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. OF 1999
-V E R S U S-
PAKA LIMITED
(under receivership).. .. .. .. .. .. .. 1ST
DEFENDANT
TTTT.. .. .. .. .. .. 2 ND
DEFENDANT
CHAMBER SUMMONS
(Under Order VIA Rule 3(1), 5, 7 and 8 of the Civil Procedure Rules,
Section 3A of the Civil Procedure Act and all other enabling
provisions of the law)
soon thereafter, for the hearing of an application by the Counsel for the
b) Further, since the filing of the Plaint, the amount payable to the
c) The time allowed under the Civil Procedure Act and the Civil
herein.
Defendants.
2000.
TO BE SERVED UPON
Tttt
Advocate
Central Square
P.O. Box tttt
KISUMU
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.
Summons arbitration
REPUBLIC OF KENYA
VERSUS
CHAMBER SUMMONS
other orders and/or directions as this Honourable Court may deem fit
said Agreement.
6. Section 6 (1) of the Act further provides that the Court shall grant a stay
Agreement.
justice
`` AND COMPANY
ADVOCATES FOR THE DEFENDANT/APPLICANT
TO BE SERVED UPON:-
P.J Kakad & Company
Advocates
Jubilee Place, 4th Floor
Mama Ngina Street
P. O. Box fffff
NAIROBI.
"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."
CERTIFICATE OF URGENCY
(Practice Note of 31st May, 1984)
EX PARTE
CHAMBER SUMMONS
(Section 5 of the Judicature Act, Cap. 8 Laws of Kenya, Order 52
Rules of the Supreme Court of England 1965, Section 3A of the
Civil Procedure Act , cap 21 of the Laws of Kenya)
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC CIVIL APPLICATION NO. XXXX OF 1999
STATEMENT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. TT OF 2001
XXXXXXXXXXXXXXX...PLAINTIFF/RESPONDENT
VERSUS
YYYYYYYYYYYYYYYDEFENDANT/APPLICANT
CHAMBER SUMMONS
(Under Order VI rule 13(1) (b) & (d) of the Civil Procedure
Rules, section 3A of the Civil Procedure Act and all other
enabling provisions of the law)
(c) The suit is otherwise an abuse of the process of the Court and
should be dismissed with costs to the Defendants.
(d) In the circumstances, it is in the interests of justice that the
same should be struck out;
TO BE SERVED UPON
Xxxxxxxxxxxxxxx
P.O Box
THIKA
NOTE:
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.