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 187
Our Ref: OW&C/GEN/001/2011 Your Ref: T.B.A DATE: 27 th 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 NOTICE that 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).

Page 2 of 187
Yours faithfully,
For OBAT WASONGA & CO. ADVOCATES

ADVOCATE
/ak

c.c: CLIENT,
P. O. Box 17,
KATITO

The Chairman,
Business Premises Rent Tribunal,
KISUMU.

Our Ref: OW&C/GEN/001/2011 Your 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.

Page 3 of 187
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.

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 28 th 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.
Page 4 of 187
 3. We are the executors named in the said will and that power should be
reserved for the other executors named therein to prove.
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 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 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 187
 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 22 nd 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/=

Page 6 of 187
 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 }
……………………………………
}
}
}
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

Page 7 of 187
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.

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 .

Page 8 of 187
 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 _______________________________________(alsoN/A known as
______________________) and I am/ We are the Petitioner(s) named in the
10/9/2012
petition dated _____________________ upon which I/ We have endorsed my/
our name(s) at the time3/3/2003
of swearing this affidavit.
LUNDHA
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) _____________________________________________________________________
__

Page 9 of 187
 f) _____________________________________________________________________
__
g) _____________________________________________________________________
__
h) _____________________________________________________________________
__
i) _____________________________________________________________________
__
j) _____________________________________________________________________
__
k) _____________________________________________________________________
__
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) _____________________________________________________________________
__

Page 10 of 187
 h) _____________________________________________________________________
__
i) _____________________________________________________________________
__
Total estimated value of
Kshs.__________________________________________________
LIABILITIES:-
NIL
a) ________________________________________________________________________
b) _______________________________________________________________________
c) _______________________________________________________________________
Total NIL 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

____________________________________
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 .

Page 11 of 187
 SUCCESSION CAUSE NO.__________ OF 2012

IN THE MATTER OF THE ESTATE OF __ ____

_===DECEASED
AND
IN THE MATTER OF AN APPLICATION BY

=======================================APPLICANT

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
………………...

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 187
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.

Page 13 of 187
Signed by the above named________________________
In the presence of_______________________________
Signature______________________________________
Advocate of (Address)
Or in the presence of ____________________________
Signature______________________________________
Of address description____________________________

DRAWN & FILED BY:

& ADVOCATES
, 2ND FLOOR
P. O. BOX ,
.

Page 14 of 187
 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
__________________________________
200,.00 in the sum of Kenya
Shillings____________________
________________________ (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
inONE HUNDRED
Kenya THOUSAND
at least the sum of Kenya Shillings________
______________________________________________(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. ____________________________________

Page 15 of 187
2. ____________________________________
This _______ day of ___________________.
_______________________
Before me: _______________________
Deponents
Commissioner for Oaths
(Or other swearing Officer)
DRAWN & FILED BY:
& ADVOCATES
, 2ND FLOOR
P. O. BOX 3055 – 40100,
.

Page 16 of 187
 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

Page 17 of 187
(Or other swearing Officer)

DRAWN & FILED BY:

& ADVOCATES
, 2ND FLOOR
P. O. BOX,
KISUMU.

Page 18 of 187
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 }

Page 19 of 187
 }
}
In the presence of }
}
Commissioner for Oaths/
Magistrate.

Page 20 of 187
DRAWN & FILED BY:
& ADVOCATES
, 2ND FLOOR
P. O. BOX ,
.

Page 21 of 187
 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 THAT objection 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 THAT if 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 of 2012.

____________________
DEPUTY REGISTRAR
KSL

Page 22 of 187
 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…………………… this day of , 2012

____________________
DEPUTY REGISTRAR
KSL

Page 23 of 187
 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 - P.O. BOX

3. Name of Applicant -

4. Capacity of Applicant - SON

5. Title of proceedings - SUCCESSION CAUSE NO.

OF 2012.

DATED at …………… this day of 2012.

_____________________
DEPUTY REGISTRAR
KSL

Page 24 of 187
 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

2013

ADVOCATES FOR THE PLAINTIFFS

DRAWN & FILED BY:
ADVOCATES,
GATE NO. ,
AGHA KHAN ROAD,),
P. O. BOX

Our Reference:

Page 25 of 187
TO BE SERVED UPON:
1. ………………………..
(To be effected through the Plaintiffs’ Advocates office)

Page 26 of 187
 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.

Page 27 of 187
WHICH APPLICATION is based on the grounds:
a. THAT the 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 …………….
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

Page 28 of 187
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
……………………………………….…...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 1 ST 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.

Page 29 of 187
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

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)

Page 30 of 187
 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

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 .

Page 31 of 187
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.

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.

Page 32 of 187
 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.

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

Page 33 of 187
 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,
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:

Page 34 of 187
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
/ow

C.c: 1.
3. Lands Registrar,
KSL County
4. Our Clients-

EXTRACTED ORDERS (IS EXTRACTED BY THE ADVOCATE AFTER A RULING IN

AN INTERLOCUTORY APPLICATION):

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KSL

Page 35 of 187
 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
3.
4.
5.
6. NO. ……………….. that belongs to the applicants.

7. 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).

8. The cost of this application is hereby granted to the Applicants.

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:

Page 36 of 187
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
……………………..

iii. THAT this application be heard inter-parties on………..day……20…….

iv. Costs in the cause

DATED at KSL this _________ day of ____________________, 2012.

Page 37 of 187
GIVEN UNDER MY HANDS and the SEAL of this Court this ______ day of
__________ 2012.

___________________________
DEPUTY REGISTRAR
HIGH COURT KSL .

APPLICATION FOR SUMMARY JUDGMENT:

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
“FAST TRACK” CIVIL SUIT NO. ……………. OF 2011

Page 38 of 187
…………………………………………………..…………….. 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 39 of 187
 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

Page 40 of 187
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:

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 affidavit in 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 ……… }
}

Page 41 of 187
This ………... day of ………………………….…… 2011 }
}
}
BEFORE ME }
}
}
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 N/A
preferred from decree
5 Payment or Adjustment N/A
6 Previous application if any N/A
with Date and Result
7 Amount with interest due Court - Kshs.1,044,662.00
upon the decree or any
other relief granted with
particulars of any cross
decree

Page 42 of 187
 8 Amount of cost if any As awarded in the decree Costs -
Awarded 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 nkt Co. Ltd
executed
1 Mode in which the By issue of warrant of attachment of
0 assistance of the court is the judgment debtors movable
required properties through (NAME OF
AUCTINEERS-THE AUCTIONEERS
MUST BE 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 this day 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

-VERSUS-

Page 43 of 187
NKT CO. LTD=====================RESPONDENT

DECREE
CLAIM FOR:-

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

b) A certificate of costs be and hereby issued for the taxed cost of

kshs…………../= only

c) Costs for the applications

Dated at KSL this day of 2012

Issued at KSL this day of 2012

__________________
THE CHAIRMAN
C-OPERATIVE TRIBUNAL

Page 44 of 187
 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 this day of 2012

ISSUED at KSL this day of 2012

__________________
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]

Page 45 of 187
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.

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:

Page 46 of 187
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];

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];]

Page 47 of 187
4.10 that the choice of English law to govern the Agreement was made for bona fide purposes;

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:

Page 48 of 187
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
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).

Page 49 of 187
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.

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.

Page 50 of 187
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

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.

Page 51 of 187
7. Documents
For the purposes of this opinion, we have examined:

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;

Page 52 of 187
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;

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;

Page 53 of 187
9.2 the Agreement constitutes a valid and binding agreement under English law;

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 non-
exclusive 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.

Page 54 of 187
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
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 55 of 187
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;

10.21.3 whether the Charge creates effective security in respect of any property assets or rights
outside Wales and England;

Page 56 of 187
 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 winding-
up 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
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.

Page 57 of 187
 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
-VERSUS-
SILALII
MASKIO==========================================DEFEN
DANT
AND
NIKO RADA=====================================OBJECTOR

NOTICE OF STAY OF EXECUTION ORDER…. RULE 54.

To
Acha za Ovyo & Co. Advocates

Page 58 of 187
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 59 of 187
 REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT KSL.
CIVIL SUIT NO. OF 2014.

KET
WANG’I==============================================
=PLAINTIFF
-VERSUS-
SILALII
MASKIO==========================================DEFEN
DANT
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.

Page 60 of 187
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.

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.

======================================1 ST PLAINTIFF
-VERSUS-
======================================1 ST
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.

DATED at KSL this ___ day of , 2011.

Page 61 of 187
 _____________________________
CHAP CHAP & CO ADVOCATES
FOR THE DEFENDANTS

DRAWN & FILED BY:

CHAP CHAP & COMPANY
ADVOCATES
, 2ND FLOOR
P.O. BOX

TO BE SERVED UPON:

AMENDED DEFENCE AND COUNTERCLAIM:

REPUBLIC OF KENYA
IN THE HIGH COURT OFCOURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. OF 2000

GGGG BANK LIMITED.... .. .. .. .. .PLAINTIFF

-VERSUS-
BBB 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

Page 62 of 187
 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 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 1 st
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 25 th 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

Page 63 of 187
 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 2 nd and 3rd

Defendants and NNNN indicated that the 1 st 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.

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 2 nd 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 (4 th) 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").

Page 64 of 187
e) Upon conclusion of the aforesaid discussions between Mr. Ajay Shah
representing the Plaintiff and the 2 nd 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 28 th October, 1996, the Plaintiff
inserted the 26th day of October, 1996 as the date of execution.

f) In appending their signatures however, the 2 nd 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 2 nd 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 2 nd and 3rd
Defendants and NNNN D.NNNN had not and could not possibly have
executed the said Guarantee.

Page 65 of 187
[j)] In view of the foregoing, the 2 nd and 3rd Defendants,
respectively, aver that the execution of the said gGuarantee
instead to 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:-
j)
[k)] i) On 19th November, 1996 the Plaintiff wrote to the 2 nd and
3rd Defendant and the said NNNN D.NNNN requesting them to
execute alleged Personal Guarantees which had never been
received by either the 2 nd or 3rd Defendant and/or the said
NNNN D.NNNN. The Plaintiff further sent reminders on 6 th
March 1997 and 7th April 1997 requstingrequesting 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 1 st
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.

Page 66 of 187
 iii) Thereafter, vide a letter dated , which he did vide the
Plaintiff's letter 21st August 1997. , the Plaintiff, pursuant to
the aforesaid telephone conversation, sent to the 3rd
Defendant, the The said Personal Guarantees which were
headed " Guarantee and Indemnity (Individual Guarantee)". In
the said letter, Tthe Plaintiff also requested the 1 st 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) However, none of theThe Defendants never forwarded any of
the foregoing documents were forwarded to the Plaintiff nor did
they ever execute the said Personal Guarantee Forms

v) .
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 during
the meeting between Mr. Ajay Shah representing the Plaintiff and the 2 nd and
3rd Defendants and Nello D. Francesco representing the 1 st Defendant.
[v)] n) Accordingly, iIn mid September 1997, the said Mr. Vinod
Chaudry called the 3rd Defendant requesting me her to forward
the duly executed documents as outlined in 5(j) (iii) (l)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 3 rd 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.

Page 67 of 187
 v) vi) Subsequently, by a letter dated 28 th November, 1997 the
Plaintiff, once again, requested the 2nd and 3rd Defendants and
the said NNNN D.NNNN to forward the duly executed Ppersonal
gGuarantees 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
executed Personal Guarantees from , inter alia, the 2nd and 3rd
Defendants, including its letters dated 25 th 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 21 st August, 1997.
.

viii) Pursuant to the foregoing, In the circumstances, the 2nd and

3rd Defendants deny that they ever entered into or
executed any or any of the alleged Personal Guarantees
dated 13th December 1996 in favour of the Plaintiff 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

Page 68 of 187
 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 13th December 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 13 th
December 1996 whereas subsequent thereto, in the year
1997, the Plaintiff kept sending reminders to the 2 nd 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.

Further, the Defendants aver that in any event, there was no

consideration for the purported guarantee of liabilities of the 1 st
Defendant to the Plaintiff as a consequence whereof the Defendants
deny that the Plaintiff is entitled to recover the said sum of
Kshs……. or any part thereof from the Defendants pursuant to the
purported guarantees.

ix) In the premises the 2nd and 3rd Defendants, respectively, aver
that for the foregoing reasons, the purported Personal
Guarantees are null, void and unenforceable as against
them for all purposes. Consequently, the 2 nd and 3rd

Page 69 of 187
 Defendants further aver that they are e not liable to the
Plaintiff for the said sum of Kshs.50,000,000.00 …either as
alleged or at all. Further, any action against the 2nd and 3rd
Defendants, 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 2 nd 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 2 nd and 3rd Defendants aver
that the execution of the said Guarantee was procured by fraudulent
misrepresentation made by the Plaintiff to the 2 nd and 3rd Defendants
and a Mr. the execution of the said guarantee by the 2 nd and 3rd
Defendants and NNNN D.NNNN. was fraudulently procured.

[1.] PARTICULARS OF FRAUDULENT MISREPRESENTATION 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 2 nd 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 2 nd and 3rd
Defendants and NNNN D.NNNN to append their signatures
thereto.

Page 70 of 187
 b) Well knowing that no credit facilities had been negotiated or the
terms thereof agreed upon, 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 2 nd and 3rd
Defendants and NNNN D.NNNN to append their signatures
thereto.
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 2 nd and 3rd Defendants and NNNN D.NNNN
had not agreed to provide any personal guarantees, 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.

The 2nd and 3rd Defendants accordingly pray that this Honourable
Court do award damages for fraudulent misrepresentation.

6.[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, :
-

Page 71 of 187
 a) The said Guarantee is dated 26th October 1996 whereas the
purported Personal Guarantees are dated 13th December, 1996
b)[a)] 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.
7.[8.] On account of the foregoing matters, the 2 nd and 3rd Defendants aver
that:
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 2 nd
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.

8.[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 1 st 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;

Page 72 of 187
 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.
d)

10. In response to paragraph 10 of the Plaint, the 2 nd 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.
In view of the foregoing matters, the Defendants aver that they could act on
the demand served on them by the Plaintiff.

8 11. The jurisdiction of the Honourable Court is admitted.

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.10

1.[2.] 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.

Page 73 of 187
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 2 nd 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.
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 the subject matter of this suit.

REASONS WHEREFORE the Defendants pray:-

[3.] That this Honourable Court do find and declare that:-:-

a) 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 13 th December, 1996
were fraudulently procured by the Plaintiff

Page 74 of 187
d) The purported Personal Guarantees dated 13 th December, 1996 are
in all the circumstances of this case, null , void and
unenforceable against the 2nd 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.

2.[4.] That General Damages be awarded to the 2 nd and 3rd Defendants for the
Plaintiff’s fraudulent misrepresentation.
3.[5.] That this Honourable court do order the Plaintiff to render to the 1 st
Defendant, a true, full and comprehensive account.
4.[6.] 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.
5.[7.] 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
6.[8.] 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

7.[9.] ADVOCATES FOR THE DEFENDANTS

DRAWN & FILED BY:-

Page 75 of 187
 ,,,,,,, & Company
Advocates
,,,,,,,
Arboretum Drive
P.O. Box ,,,,,,,
8.[10.] 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)
CIVIL CASE NO. xxx OF 2000

XXX BANK LIMITED .. .. .. PLAINTIFF

-VERSUS-

fffffffffff .. .. .. .. … .. .. 1ST DEFENDANT

ggggggggg .. .. .. .. .. .. 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.

Page 76 of 187
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 Re-Amended 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 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.

Page 77 of 187
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 Re-Amended
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 78 of 187
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 Re-Amended
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.

Page 79 of 187
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 Re-Amended Defence or at all.

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.

Page 80 of 187
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

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 31 st
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.

Page 81 of 187
 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.

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.

Page 82 of 187
DATED at Nairobi this 26th day of June 2012.

AMENDED at Nairobi this day of

2014.

RE-AMENDED at Nairobi this day of

2014.

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 83 of 187
cccccccc
cccccccc
Nakuru

Dear Sirs,

Re: ccccccccccccccc
Xxx Bank Limited –vs-
ddddddd & mmmmm
============================

We have been served with your Re-Amended Defence filed on 3 rd 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

Page 84 of 187
cc: Xxx Bank Ltd
Victor Towers
Upper Hill Road
Nairobi

Attn: Mmm/sssss

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
-VS-
CCCCC 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

Page 85 of 187
 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

Zephania Mogiri Ondieki, now deceased, (“the said driver”)
engaged by the Defendant as a driver of the Defendant’s motor
vehicle registration number CCCCC 327 F.

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

Page 86 of 187
 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 .. .. 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.

Page 87 of 187
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, 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: -

Page 88 of 187
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 9 th
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.

DATED at Nairobi this day of 2011

DATED at Nairobi this day of 2012

15. CCCCC AND COMPANY

ADVOCATES FOR THE PLAINTIFF

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

Page 89 of 187
 (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

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.

Page 90 of 187
 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.

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.
Page 91 of 187
 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.

10. The Plaintiff therefore puts Defendant to strict proof of their Defence and Counter-
claim 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 Nairobi this 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

Page 92 of 187
 IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL SUIT NO. uuuuuu OF 2002

UUUUUU & CO. INC. …………………………….................PLAINTIFF

VERSUS

ccccccccccccccccccccccccccccc ……1ST DEFENDANT

cccccccccccccLIMITED……………………..........…......2ND
DEFENDANT
ccccccccccccccccccccccc…….…………..……3RD 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 1st Defendant on the various allegations made in the
Defence filed herein on 14th 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

Page 93 of 187
 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.

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 1 st 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

Page 94 of 187
 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 1 st
Defendant to the Plaintiff. They further guaranteed that in the
event of the 1st Defendant defaulting in repayment, the 2 nd 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 1 st
Defendant, extended and disbursed the loan facility of US$
60,000 to the 1st Defendant.

4. In view of paragraphs 2 and 3 above, the contents of paragraph

4 of the Defence are denied in and the 1 st 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

Page 95 of 187
 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 1 st 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 1 st
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 96 of 187
c) In consideration and on the strength of the said Promissory
Note and Debenture duly executed by the 1 st 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 1st 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 1st Defendant intimate to the Plaintiff that part of the

Page 97 of 187
 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 to the 1st Defendant as alleged or at all. In any
event, the Plaintiff, not being an expert 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 1 st 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

Page 98 of 187
 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 1 st
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 1 st 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
1st Defendant.

m) It is denied that there is any conflict of interest between

the Plaintiff and Sandro Francini as alleged or at all. The 1 st
Defendant is put to strict proof thereof. Further, the
Plaintiff repeats paragraph 6 (e) hereinabove.

n) Any such monies as were paid by the 1 st 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

Page 99 of 187
 the account of the Plaintiff. The 1 st 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 1 st
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.

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 1 st

Page 100 of 187

 Defendant by the Plaintiff on 23rd February 1999 and not in
respect of the facility granted on 5 th 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.

Page 101 of 187

15. The Plaintiff repeats paragraph 6 (l) hereinabove in answer to
paragraph 25 of the Counterclaim.

16. The contents of paragraphs 26 and 27 of the Counterclaim is

denied and the 1st 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 to the 1st
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:-

Page 102 of 187

a) The Plaintiff avers that it has no knowledge, and accordingly makes
no admission, of the allegation contained thereon. The 1 st
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 1 st
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 alleged loss, if any, that
might have been occasioned to the 1 st 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

Page 103 of 187

 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
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 20th June, 2001. (“the Plaint”)

Page 104 of 187

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 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

Page 105 of 187

 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 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

Page 106 of 187

 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 of the
Plaintiff’s distributorship on behalf 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.
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

Page 107 of 187

 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 Sales Manager aforesaid, Mr.
George ,,,,,,,,, who collected without payment, goods from the
Plaintiff’s premises for onward 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 to the Plaintiff to

Page 108 of 187

 refurbish the stock collected by its said officers and/or failed,
to post credit to the Plaintiff’s account as aforesaid.
d) That the Plaintiff never once complained to the Defendant of
over- stocking and accordingly puts the 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 back- tracked 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 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.

Page 109 of 187

 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.
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.

Page 110 of 187

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:-
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 Counter- claim herein.

Page 111 of 187

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
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

Page 112 of 187

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

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:-

Page 113 of 187

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 Magistrate’s Case No. ,,,,,, of 2000 be permanently stayed and

Page 114 of 187

 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
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

Page 115 of 187

 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

Page 116 of 187

 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

Page 117 of 187

 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 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.

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.

Page 118 of 187

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 200,,,,

DEPUTY REGISTRAR
COURT OF APPEAL

Page 119 of 187

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

(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 day
of 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:

Page 120 of 187

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 12 th 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.

DATED at Nairobi this day of 2001

40.
41.
42.XXXXXX & COMPANY
ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY:

Xxxxxx & Company
Advocates,
Xxxxxx,

Page 121 of 187

Arboretum Drive,
P.O. Box xxxxxx,
Nairobi.

TO BE SERVED UPON :
ccccccccccc
Nairobi.

Page 122 of 187

 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 6 th 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 123 of 187

 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 7 th 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 124 of 187

 “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 125 of 187

 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 29 th 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 126 of 187

 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 EMBAKASI
NAIROBI 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 29 th 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,
neglected and or otherwise failed to make the scheduled payments to the
Plaintiff as a consequence whereof;

Page 127 of 187

 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 29 th 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 128 of 187

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 30 th 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 13 th 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 129 of 187

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 24 th 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 23 rd 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 130 of 187

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 5 th 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 19 th 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 12 th 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 131 of 187

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 20 th 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 23 rd 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 132 of 187

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 133 of 187

28 THAT I 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 134 of 187

 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 135 of 187

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 1 st March 1999, in Civil Case {Civil Appeal/
Bankruptcy Cause/ Matrimonial Cause/ Miscellaneous Cause } No. …….. of
1999.]

50. NOTICE OF CROSS-APPEAL

Page 136 of 187

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:
The Honourable Judges of the Court of Appeal.

Lodged in the Registry {Sub-Registry} on the ……….. day of

…………………….., 1999.

…………………………………………
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
IN THE MATTER OF THE ELECTIONS ACT, 2011
AND

Page 137 of 187

 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
-VERSUS-
THE 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.

DATED at Nairobi this day of 2013

Page 138 of 187

 ______________________________________________
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 2. &

Associates

Monrovia Streat/Utalii Lane P.O. Box

P.O. Box ELDORET
NAIROBI

Page 139 of 187

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

ADVOCATES

Page 140 of 187

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
-VERSUS-
ST
………………………………1 RESPONDENT
THE INDEPENDENT ELECTORAL AND BOUNDARIES

Page 141 of 187

COMMISSION…………………………………………….2ND RESPONDENT
………………………………………...3RD RESPONDENT

INDEX

NO ITEM PAGE
1. CERTIFICATE OF XEROGRAPHY
2. MEMORANDUM OF APPEAL
3. PETITION
4. AFFIDAVIT IN SUPPORT OF PETITION &
ANNEXTURES THERETO
ST ND
5. 1 & 2 RESPONDENTS RESPONSE TO THE
PETITION
6. AFFIDAVIT IN SUPPORT OF THE 1ST & 2ND
RESPONDENTS’S RESPONSE
ST ND
7. 1 & 2 RESPONDENTS’ WITNESSES AFFIDAVITS
8. 3RD RESPONDENTS’ RESPONSE TO THE PETITION
9. 3RD RESPONDENTS’ AFFIDAVIT OF RESPONSE
10. 3RD RESPONDENT’S WITNESSES AFFIDAVITS
11. PETITIONER’S WITNESSES AFFIDAVITS
12. PETITIONER’S APPLICATION DATED 10TH MAY
2013 & THE SUPPORTING AFFIDAVITS THERETO
13. RESPONSES TO THE APPLICATION DATED 10TH
MAY 2013
14. WRITTEN SUBMISSIONS ON THE PETITIONERS’
APPLICATION DATED 10TH MAY 2013
15. RULING ON THE APPLICATION DATED 10TH MAY
2013 (DATED 3RD JULY 2013)
16. ORDER ARISING FROM THE RULING DATED 3RD
JULY 2013
17. RESULTS OF THE RE-COUNT
18. 3 RESPONDENT’S APPLICATION DATED 16TH
RD

JULY 2013
ST ND
19. 1 & 2 RESPONDENTS APPLICATION DATED
16TH JULY 2013.
20. PETITIONER’S APPLICATION DATED 17TH JULY
2013
21. RULING ON THE APPLICATIONS BY THE PARTIES
DATED 22ND JULY 2013
22. ORDER ARISING FROM THE RULING OF 22ND
JULY 2013
23. ORDER GRANTING LEAVE TO APPEAL THE
RULING OF 22ND JULY 2013
24. TYPED PROCEEDINGS
25. CERTIFICATE OF THE REGISTRAR

Page 142 of 187

 26. AGREED ISSUES
27. PETITIONER’S FINAL WRITTEN SUBMISSIONS
28. 1ST & 2ND RESPONDENTS FINAL WRITTEN
SUBMISSIONS
RD
29. 3 RESPONDENT’S FINAL WRITTEN
SUBMISSIONS
30. JUDGMENT OF THE COURT, DATED 23RD
AUGUST 2013
31. DECREE OF THE COURT
32. NOTICE OF APPEAL

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. & Associates

KVD Plaza,
Monrovia Streat/Utalii Lane P.O. Box
P.O. Box Eldoret
Nairobi

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

CIVIL APPEAL NO OF 2013

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010

Page 143 of 187

 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 2013

Drawn and Filed by:

Obat Wasonga & Co. Advocates

, 16th Floor
University way
P.O. Box
Nairobi

Page 144 of 187

To be Served Upon:

2. & Co. Advocates 2. & Associates

5th Floor, View Park Towers KVD Pla,
Monrovia Streat/Utalii Lane P.O. Box
P.O. Box Eldoret
Nairobi

Page 145 of 187

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 146 of 187

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 147 of 187

 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. Memorandum of Appeal 6.9.2001 1-3

2. Plaint 24.6.1997 4-11
3. Chamber Summons 24.6.1997 12-13
4. Affidavit of M G Qureishi 24.6.1997 14- 20
5. Annextures 21- 43
6. Affidavit of M G Qureishi 21.7.1997 44-47
7. Annextures 48- 51
Page 148 of 187
8. Notice of appointment of 28.7.1997 52- 53
9. Advocates 25.6.1997 54
10. Summons to Enter 28.7.1997 55- 58
11. Appearance 11.8.1997 59- 73
12. Grounds of objection 74- 134
13. Replying affidavit of Ayaz 31.7.1997 135
14. Merali 13.8.1997 136- 147
15. Annextures 13.1.1998 148- 149
16. Memorandum of Appearance 26.5.1998 150- 151
17. Defence 152- 155
18. Notice of Change of Advocates 16.9.1998 156- 159
19. Summons for Directions 160- 162
20. Plaintiff’s Statement of Issues 15.6.1999 163
21. Defendants Statement of 26.11.1999 164- 166
22. issues 26.11.1999 167
23. Ruling on Issues 26.11.1999 168
24. Notice of Change of Advocates 30.11.1999 169- 170
25. Plaintiff’s list of documents 24.2.2000 171- 172
26. Notice to Produce
Plaintiff’s list of authourities 3.4.2000 173- 174
27. Defendant’s list of documents 12.4.2000 175- 182
28. Defendant’s list of authorities 16.5.2000 183- 192
29. Defendant’s amended list of
authourities 30.5.2000 193- 195
30. Plaintiffs written submissions 196- 267
31. Defendant’s written 5.12.2000 268- 279
32. submissions 7.9.2001 280- 281
33. Plaintiff’s reply to defendants 8.12.2000 282- 283
34. submissions 7.12.2000 284
35. Proceedings and exhibits 18.12.2000 285
36. Judgement 18.12.2000 286-287
37. Decree
Notice of Appeal 8.1.2001 288- 289
38. Letter requesting for 290- 294
39. proceedings 17.7.2001 295- 296
Notice of Address for service
Plaintiff’s Notice of appeal

Page 149 of 187

 Defendant’s Notice of address
for service
Miscellaneous
correspondence
Certificate of delay

73.

Page 150 of 187

 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 151 of 187

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 1 st 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 1 st 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 152 of 187

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 153 of 187

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 NYARWEGI of Post Office Box Number 4040-40100 Nairobi,
Kenya AS MY 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 154 of 187

 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 this day of September,
2014.

SIGNED, SEALED and DELIVERED

By the said OTOYO MARACH
_____________
In the presence of DEPONENT

COMMISSIONER FOR OATHS

Page 155 of 187

 SALE AGREEMENT

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 the context so
admit include their executors, administrators and assigns) of the one part, and
SILALII MASKIO AND NIKO RADA holders of Kenyan Identity Card Numbers 11223774
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 F P.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

Page 156 of 187

 not form part of this Agreement and shall not be taken into account in its construction or
interpretation.

2. Law Society Conditions of Sale (General Conditions) of 1989

The Sale is subject to the Law Society Conditions of Sale (1989 Edition) in so far as they are not
inconsistent with the conditions contained in this Agreement 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 purchase from the
Vendors the property described here below.

II. The property (the property”) sold is all that parcel of land described as Land Reference
Number ……. situate at KAREN in Nairobi.

III. The Vendors covenants that they are the absolute owners of the property with no 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 and agreed at Kenya
Shillings One Hundred Million Only (KShs 100,000,000/- (“the Purchase Price”)

Page 157 of 187

 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 3 rd 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 158 of 187

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 or implied 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 159 of 187

 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 160 of 187

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. 2344-12 with 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 161 of 187

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 as shown 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 162 of 187

 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 ADVOCATES
to be their Advocate in this transaction.

IN WITNESS of which this Agreement has been duly executed on the date and year 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 of
witness……………………………………………………………………………….…….
Name……………………………………………………………………………..……………

Page 163 of 187

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. 2014

Page 164 of 187

 IN THE MATTER OF AN APPLICATION BY…………… FOR
LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS
AND

IN THE MATTER OF UNPROCEDURAL REMOVAL FROM OFFICE OF SPEAKER

OF 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………2 ND

RESPONDENT

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 1 st Respondent shall continue
abusing their powers and appoint a new speaker to replace the Applicant.

DATED at NAIROBI this day of 2014

& CO.

Page 165 of 187

 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

LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS
Page 166 of 187
 AND

IN THE MATTER OF UNPROCEDURAL REMOVAL FROM OFFICE OF SPEAKER

OF 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………2 ND

RESPONDENT

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 167 of 187

 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 applicant from 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 .

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 prescribed
procedure as Speaker of the County Assembly of ………. to serve for a period of five
years until the end of the term of the respondent.
2. The County Government Act and the Interim County Assembly Standing Orders
prescribe the procedure for the removal of the applicant from the office of the speaker of
the County Assembly.

Page 168 of 187

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 assembly and 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 the applicant 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 unprocedural as it offended the express provisions of the standing Order 44 of the
respondent’s Interim County Assembly standing orders.
10. The respondent convened a sitting on a Monday in contravention of standing order
number 24 of the interim 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 Order 58 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 of the 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 the speaker was unreasonable discriminative
and a politically orchestrated move to remove the applicant from office. The removal is
therefore illegal, unconstitutional and unreasonable.

Page 169 of 187

 14. That in view of the contents of paragraph 12 foregoing the members of the respondents
did not render 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 of the speaker, the procedure applied in removing the applicant from office was
not the statutorily prescribed one. This court has the power to protect all processes and
procedure expressly set out in a statute, 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 should accord 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
order preserving 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 2014.

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 170 of 187

 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

LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS
AND

IN THE MATTER OF UNPROCEDURAL REMOVAL FROM OFFICE OF SPEAKER

OF THE COUNTY ASSEMBLY OF …………………….

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA 2010

AND

Page 171 of 187

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………2 ND

RESPONDENT

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 172 of 187

 a. The respondent’s decision made on the day of May 2014 impeaching or

removing the applicant from 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 2014.

& CO ADVOCATES
ADVOCATES FOR THE APPLICANT

DRAWN & FILED BY

& COMPANY ADVOCATES,

SUNSET PLAZA, 2ND FLOOR,
SUNSET BOULEVARD,

Page 173 of 187

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

LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS
AND

IN THE MATTER OF UNPROCEDURAL REMOVAL FROM OFFICE OF SPEAKER

OF THE COUNTY ASSEMBLY OF ……………

Page 174 of 187

 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………2 ND

RESPONDENT

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 175 of 187

  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 2014.

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 176 of 187

 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

LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS
AND

IN THE MATTER OF UNPROCEDURAL REMOVAL FROM OFFICE OF SPEAKER

OF 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 177 of 187

THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA………2 ND
RESPONDENT

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 )

)
) ____________ _______________
) DEPONENT
This day of 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

OFFER LETTER

Page 178 of 187

OUR REF: NVR/GMI/2014 YOUR REF: TBA
DATE: 3RD NOVEMBER, 2014

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:

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.

4. PERFORMANCE MEASURES
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

Page 179 of 187

 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.

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.

Page 180 of 187

 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) ………………………………………………………………..

Postal Address…………………………………………………………………

Hereby accept the above offer as per the Terms and Conditions stipulated herein.

Signature……………………………… Date………………………………….

Page 181 of 187

 EMPLOYMENT CONTRACT

BETWEEN

LIMITED

(‘the Employer’)

__________________________________________________

AND

__________________________________________________

(‘the Employee’)

_________________________________________________________

………………………………
Advocates
P.O Box
NAIROBI
Tel: +254 Fax:
Mobile:
Email:
Website:
CONTRACT OF EMPLOYMENT

THIS CONTRACT OF EMPLOYMENT is made on the ……………. 2014

BETWEEN ……….., a Limited liability Company care of P.O. Box
…………………., Kenya (hereinafter called "the Employer" 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.

Page 182 of 187

WHEREAS:
A. The Employer as the owner and administrator is desirous of engaging
the services of the Employee in its……. premises.
B. The Employee 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.

3. THE EMPLOYEE HEREBY CONVENANTS AS FOLLOWS;

Page 183 of 187

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)

Page 184 of 187

 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
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

Page 185 of 187

 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 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,

Page 186 of 187

SECRETARY

Signed by ………………. this 1st day of December, 2014

_______________________

(‘The Employee’) ID NO
……………..

in the presence of:

ADVOCATE

DRAWN BY:
………………………. Advocates
ACK Garden House, 3RD Floor
P.O Box
NAIROBI
Tel: Fax:
Mobile:
Email:
Website:

Page 187 of 187