KENTIENO

2024

Civil Litigation – CLE Revision

Table of Contents
1. Intro & Overview .......................................................................................................... 1
2. Taking Instructions ....................................................................................................... 1
a) Taking instructions and client–advocate interview and conferencing ............................ 1
b) Legal opinion ................................................................................................................ 2
c) Decision to litigate or not to litigate ............................................................................... 4
d) Pre-litigation preliminary considerations ...................................................................... 4
e) Demand letter ................................................................................................................ 5
Sample ........................................................................................................................... 5
3. Courts & Jurisdiction .................................................................................................... 6
4. Overriding Objective .................................................................................................... 8
5. Parties to a suit .............................................................................................................. 8
a) Introduction .................................................................................................................. 8
b) Joinder of parties and mis-joinder ................................................................................. 8
c) Third party .................................................................................................................. 11
Sample third party application .................................................................................... 12
d) Interested party ........................................................................................................... 15
e) Interpleader ................................................................................................................. 15
Sample Interpleader Pleading – No suit ....................................................................... 16
Interpleader where there is a pending suit (Plaint filed) ............................................... 20
f) Amicus curiae .............................................................................................................. 25
Sample application to join amicus curiae ..................................................................... 25
g) Representative suits..................................................................................................... 29
h) Minors and persons of unsound mind......................................................................... 29
6. Commencement of suits ............................................................................................. 31
Introduction.................................................................................................................... 31
Issues to consider before drafting pleadings .............................................................. 31
Rules that govern pleadings ....................................................................................... 31
Striking out pleadings ................................................................................................ 31
Preliminary Objections ............................................................................................... 32
a) Pleadings by which litigation is commenced and answered......................................... 34
Plaint ........................................................................................................................... 34
Statement of Claim....................................................................................................... 49

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Memorandum of Claim ............................................................................................... 54

Originating Summons (OS) .......................................................................................... 54
Notice of Motion – Injunction (Mareva) ....................................................................... 58
Chamber Summons ..................................................................................................... 62
Petition (Election, Constitutional, Matrimonial Causes & Winding up Proceedings) .... 64
b) Pleadings: in reply generally ....................................................................................... 77
Defence ........................................................................................................................ 77
Defence and Counter-Claim ......................................................................................... 79
c) Service of process......................................................................................................... 83
d) Amendment and close of Pleadings............................................................................. 84
7. Interlocutory applications........................................................................................... 85
a) Role of applications ..................................................................................................... 85
b) Types of applications................................................................................................... 87
Applications under Order 40 ....................................................................................... 87
Application under 39 – Mareva .................................................................................... 92
Interpleader proceedings ............................................................................................. 96
Discovery and inspection ............................................................................................. 96
Disposal of suits by summary procedure ..................................................................... 97
Striking out of suits ...................................................................................................... 97
Summary procedure .................................................................................................... 98
8. Pre-trial process ........................................................................................................ 101
a) Role ........................................................................................................................... 101
b) Case Conferencing .................................................................................................... 101
c) Pre-trial directions ..................................................................................................... 101
d) Suits exempted from pre-trial.................................................................................... 101
e) Framing of issues....................................................................................................... 102
9. Hearing of suits......................................................................................................... 102
a) Attendance at court ................................................................................................... 102
b) Order of proceedings................................................................................................. 102
c) Examination of witnesses........................................................................................... 103
Exam-in-chief ............................................................................................................ 103
Cross-exam ................................................................................................................ 103
Re-examination ......................................................................................................... 103
d) Making submissions.................................................................................................. 104

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e)Withdrawals, discontinuance and adjustment of suits ................................................ 106

Doctrine of res judicata ............................................................................................. 106
10. Rulings, orders, judgments and decrees............................................................... 108
a) Writing and delivery of Rulings and Judgement ........................................................ 108
Sample 1.................................................................................................................... 108
Sample 2 .................................................................................................................... 110
b) Contents of a Ruling and Judgement ......................................................................... 112
Sample Ruling ........................................................................................................... 112
c) Extraction of Orders and Decrees............................................................................... 114
11. Remedies upon judgment .................................................................................... 115
a) Stay of execution ....................................................................................................... 115
b) Payment in instalments ............................................................................................. 115
c) Objection proceedings ............................................................................................... 115
12. Execution of decrees and orders ........................................................................... 117
Introduction.................................................................................................................. 117
a) Notice to show cause ................................................................................................. 119
b) Decree for payment of money ................................................................................... 119
c) Decree for specific movable property/immovable property........................................ 119
d) Garnishee Proceedings .............................................................................................. 119
e) Execution against the Government ............................................................................ 120
f) Enforcing foreign judgments...................................................................................... 121
13. Review .................................................................................................................. 123
Comparison between appeal and review ..................................................................... 123
Definition ..................................................................................................................... 123
Legal framework .......................................................................................................... 123
Procedure...................................................................................................................... 123
Grounds for review ...................................................................................................... 124
14. Appeal .................................................................................................................. 125
(a) Right of Appeal ........................................................................................................ 125
General overview ...................................................................................................... 125
Application for leave ................................................................................................ 125
(b) Time for appeals....................................................................................................... 125
Subordinate court to High Court .............................................................................. 125
High Court to Court of Appeal – Timelines ............................................................. 126

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Extension of time ...................................................................................................... 126

(c) Parties to appeals ...................................................................................................... 126
(d) Appeals from subordinate Courts to the High Court and Court of equal status ....... 126
Sample 1 – Memorandum of Appeal .......................................................................... 127
Sample 2 – Memorandum of Appeal .......................................................................... 129
Sample 3 – Memorandum of Appeal .......................................................................... 130
(e) Appeals from the High Court and Courts of equal status to the Court of Appeal ..... 132
Procedure for appeal ................................................................................................. 132
Application to file an appeal out of time/for extension of time ................................ 132
Notice of Appeal – Appeal to the CoA ....................................................................... 133
(f) Appeals from the Court of Appeal to the Supreme Court ......................................... 135
Grounds .................................................................................................................... 135
Procedure .................................................................................................................. 135
(g) Appeals from Tribunals and other statutory bodies.................................................. 135
(h) Documents of Appeal............................................................................................... 135
(i) Stay of execution pending appeal .............................................................................. 136
15. Judicial Review .................................................................................................... 137
Sample JR Application ................................................................................................... 138
Leave Stage ................................................................................................................ 138
Substantive Stage...................................................................................................... 148
Sample 2 – JR................................................................................................................. 156
16. Constitutional Litigation ...................................................................................... 164
(a) Determining constitutional question ........................................................................ 164
(b) Locus Standi in Constitutional Litigation ................................................................. 164
(c) Jurisdiction in Constitution Litigation ...................................................................... 165
(d) Practice Rules by the Chief Justice (Mutunga Rules) ................................................ 168
(e) Consequences of non-compliance with the Rules ..................................................... 169
(f) Judicial review procedure vis-a-vis enforcement of constitutional rights .................. 169
(g) Remedies.................................................................................................................. 169
17. Costs ..................................................................................................................... 170
Legal framework ........................................................................................................... 170
(a) Costs inter partes ...................................................................................................... 170
(b) Costs in interlocutory proceedings ........................................................................... 170
(c) Costs in cause ........................................................................................................... 171

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(d) Throw away costs .................................................................................................... 171

(e) Costs reserved .......................................................................................................... 171
(f) No order as to costs .................................................................................................. 171
(g) Counsel to pay costs ................................................................................................. 171
(h) The taxation process................................................................................................. 172
Security of costs ............................................................................................................ 173
18. Procedure before tribunals ................................................................................... 174
(a) Business Premises Rent Tribunal .............................................................................. 174
(b) Rent Tribunal ........................................................................................................... 174
(c) National Environmental Tribunal ............................................................................. 175

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1. Intro & Overview

2. Taking Instructions

a) Taking instructions and client–advocate interview and conferencing

Objectives

• Acquaintance with the client.

• Understand client’s interests.
• Clarification of ambiguities.
• Establish areas of conflict.
• Expectation management.
• Gathering info
• Assessing credibility.
• Developing strategy.
• Establish attorney-client relationship.

Components of a client interview

• Commencing interview – preliminary introduction, exchange of contacts, raise

issue of fees, advise on advocate-client privilege.
• Fact/information gathering – listen keenly, take notes, ask questions, seek
clarification.
• Advising the client – outline options, take instructions, provide timelines and
expectations.
• Payment for service – give payment instructions, ask for relevant docs, open
client file.

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b) Legal opinion
KENTIENO LLP
P.O. Box 123
NAIROBI
Email: [email protected]

Our Ref: WT/12/24 Your Ref: TBA

17th June 2021

“Sent by mail”

TO:

TAFUTA SHAMBA
P.O. Box 679
NAIROBI

Dear Sir,

RE: LEGAL OPINION ON THE ACQUISITION OF LAND

We refer to the above-mentioned.

FACTS

Mr Mali Mingi owns LR 55/01 of 0.25 acres situated in Nairobi – which you are
desirous of purchasing. He offered the property at 4 million, which you bargained to
3.5 million subject to 7 monthly instalments of 500,000 each.

ISSUES

1. Whether the land constitutes good title.

2. Whether you should proceed with the transaction.

LAW

1. Land Act, 2012.

2. Land Registration Act
3. Stamp Duty Act.
4. LSK Conditions of Sale
5. Land Registration (General) Regulations 2017

ANALYSIS

1. Whether the land constitutes good title.

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We undertake to do due diligence on the said property to ascertain the root title and
further advise on the suitability of the same for transfer.

2. Whether you should proceed with the transaction.

Subject to our due diligence report and findings, we shall advise and recommend steps
forward.

RECOMMENDATION

We recommend that you do not make any transactions until we revert with the
relevant report.

Yours faithfully,

Sign

KENTIENO

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c) Decision to litigate or not to litigate

• Cause of action – facts sufficient to support a valid suit (Mukisa Biscuits v West
End Distributors).
• Jurisdiction – Lilian S v Caltex Oil; SK Macharia v KCB
• Limitation of actions/doctrine of laches: tort – 3 years; contract – 6 years;
defamation, libel, slander – 1 year; land – 12 years; employment – 3 years;
tortfeasors – 2 years; negligence in employment disputes – 1 year.
• Parties to the suit
• Feasibility of the suit – objectively reasonable and practical.
• Sub judice (S 6, CPA) & res judicata (S 7,CPA)

Limitation of Actions & Extension of time

S 22, Limitation of Actions Act – Disability

• If a person to whom a right of action accrues is under a disability, the action

may be brought at any time before the end of 6 years from the date when the
person ceases to be under disability, notwithstanding that the prescribed
period of the limitation has expired.

S 27, Limitation of Actions Act – Unaware of material facts

• The standard limitation period does not apply in actions for damages where
the claimant can demonstrate that they were unaware of material facts relating
to their cause of action.

d) Pre-litigation preliminary considerations

Ethical considerations before taking up a case

• Competence & skill

• Time
• Avoidance of frivolous suits
• Conflict of interest – King Woolen Mills v Kaplan & Stratton

Ethical considerations after taking up a case

• Communication with client

• Confidentiality – S 134, 137 EA; SOPPEC 6
• Loyalty – S 80, AA
• Zealous representation
• Honesty – SOPPEC 12
• Fees – ARO 2014; S 44 & 45, Advocates Act; SOPPEC 4
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e) Demand letter
Timeframe for response: 7 days – same town as the advocate; 10 days – different town
in Kenya; 15 days - outside East Africa.

Sample
ONYALA BIOSI AND COMPANY ADVOCATES
GROUND FLOOR, SHULE YA SHERIA PLAZA
LANG’ATA SOUTH RD, NAIROBI
Email: [email protected]

Our Ref: OB/2/23 Your Ref: TBA Date: 22nd March 2023

“Advanced by mail”

TO:
KYADUNDU SSEPEBWA
P.O. Box 35, Jinja
Email: [email protected]

RE: DEMAND FOR COMPENSATION FOLLOWING THE ACCIDENT CAUSED

BY YOUR RECKLESS DRIVING

We act for and under the instructions of Fumo Liyongo (“our Client”) and hereby
address you as follows.

On 9/8/22, you recklessly drove along Waiyaki Way, hitting our client and causing him
multiple injuries; which have since resulted in hitherto unanticipated medical
expenses, pain, suffering and loss of amenities.

We have been instructed to DEMAND, which we HEREBY DO, compensation in the

amount of 7 million Kenyan shillings.

TAKE NOTICE that failure to comply to this demand WITHIN 7 DAYS from the date
hereof will occasion legal proceedings to your detriment as to liability and costs. We
trust that this will be unnecessary.

Yours sincerely,

(Sign)

KENTIENO
For: ONYALA BIOSI AND COMPANY ADVOCATES
CC: Client

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3. Courts & Jurisdiction

Lilian S v Caltex Oil (Kenya) Ltd

"Jurisdiction is everything. Without it, a court of law downs its tools." – Justice Nyarangi.

SK Macharia v KCB – A court’s jurisdiction flows from either the Constitution or

legislation, or both. When filing a suit, a party ought to identify the jurisdiction of the
court, which can be either territorial, subject-matter or pecuniary.

• Territorial jurisdiction – area to which the jurisdiction of the court extends. S 12

& 15, Civil Procedure Act.
• Pecuniary jurisdiction – maximum monetary value for the cases court can
entertain. S11, Civil Procedure Act; S 7 Magistrates Courts Act.

Legal Framework

• Articles 162,163,164,165, 166,167,169 & 170(5) of the Constitution

• Employment and Labour Relations Court Act – Section 12
• Environment and Land Court Act – Section 13
• Magistrate Court Act – Sections 6,7,8 & 9
• Kadhi’s Court Act
• Statutes establishing Tribunals
• Civil Procedure Act – Sections 11,12,13,14 & 15

System of Art 162

Courts • Superior Courts – Supreme Court, Court of Appeal, High
Court.
• Establishment of ELRC (Art 162(2)(a)), ELC (Art 162(2)(b)).
• Subordinate courts – Art 169.

Supreme Art 163

Court • Composition – CJ, DCJ & 5 other judges.
• Exclusive original jurisdiction – presidential election petition
under Art 140.
• Appellate jurisdiction – from CoA and various tribunals.
• CoA appeals – interpretation of the Constitution (no leave),
matters of general public importance(leave required).
• Advisory opinion – national government, state organ, county
government.

Court of Art 164

Appeal • Composition – not less than 12 judges.
• Appellate jurisdiction – cases from the High Court or tribunal

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High Court Art 165

• Unlimited original jurisdiction in criminal and civil matters.
• Bill of rights.
• Appeals from tribunals.
• Interpretation of the Constitution.
• Appeals from subordinate courts.
• Supervisory jurisdiction over subordinate courts/tribunals.

S 12, ELRC Act – original and appellate jurisdiction on ELR matters.

S 13, ELC Act – original & appellate jurisdiction on EL matters.
Karisa Chengo v R – ELC & ELRC as specialized courts.

Art 23(3) – Reliefs that can be offered:

• A declaration of rights
• Injunction
• Conservatory order
• Declaration of invalidity of Law
• Compensation
• Judicial review

Subordinate Art 169

Courts • Magistrates’ courts
• Kadhi’s courts – Art 170(5)
• Courts martial

Magistrates Magistrates Court Act

Courts S 6 – Criminal proceedings per the CrPC
S 7 – Pecuniary limits on Civil proceedings
• Chief Magistrate – 20M
• Senior Principal Magistrate – 15M
• Principal Magistrate – 10M
• Senior Resident Magistrate – 7M
• Resident Magistrate – 5M
S 8 – Human rights violations
S 9 – Employment, Labour Relations, Land and Environment

Small Small Claims Court Amendment Act, 2020

Claims • Pecuniary limit of 1 million – commercial court.
Court

• Venue – pecuniary, territorial, statutory.

• Forum – criminal, civil, family, constitutional and human rights, employment
and labour relations, environment and land court.

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4. Overriding Objective

Section 1A Civil Procedure Act – overriding objects of the Act – facilitate just,
expeditious, proportionate and affordable resolution of disputes.

Section 3(2) Judicature Act – courts to decide cases without undue regard to the
procedural technicalities and without undue delay.

Article 159(2), CoK 2010 –

• Proportionate justice;
• Timely justice;
• Justice to be administered without undue regard to procedural technicalities;
• Cost effective and efficient justice.

5. Parties to a suit

a) Introduction
Must have:

• Capacity to sue
• Locus standi – relationship between plaintiff and cause of action.

b) Joinder of parties and mis-joinder

Order 1, CPR 2010

Plaintiffs (Rules 1 & 2)

• Right or relief in same transaction or series of acts.

• Common question of law or fact.
• Joinder does not embarrass or delay trial.
• Leave of the court is obtained.

Defendants (Rule 3)

• Jointly and severally liable for the relief sought.

• Arises from the same act or transaction or series of acts or transactions.
• Common question of law or fact.
• It shall not be necessary that every defendant be interested as to all the reliefs
claimed in any suit against him.
• Where there is doubt as to the person against whom a plaintiff is entitled relief.

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General

• Where the presence of any person as a party to a proceeding may promote the
convenient administration of justice.
• Where a person’s presence is necessary as a party to enable the court to
effectively adjudicate upon issues or is required by statute.

Misjoinder – O1 R 9

No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the
court may in every suit deal with the matter in controversy so far as regards the rights
and interests of the parties actually before it.

Joinder of parties by plaintiff, defendant or court

A person may be joined as a party to proceeding by:

• An intended plaintiff without leave of the court when commencing a

proceeding.
• A defendant after commencement of proceeding, with leave of the court.
• The court,
(a) on application of any party or intervenors,
(b) on its own motion(suo moto).

In joining parties, the fundamental purposes are to enable the court to deal with
matters brought before it and avoid multiplicity of pleadings.

The party joined must have an interest in the litigation.

An original plaintiff with no cause of action cannot join a person who may have a
cause of action.

Joinder of Defendant

Principles on the joinder of a person as a defendant.

• Any person against whom a plaintiff claims some relief may be a defendant,
but it is not necessary for each defendant to be interested in all reliefs sought
or in every cause of action.
• The court may make such order as it appears just to prevent any defendant
from being embarrassed or put to expenses by being required to attend any
proceedings in which he may have no interest.

• A person cannot be made a defendant merely to obtain costs.

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• Under certain circumstances, a person may be made a defendant for the

purpose of discovery.

• However, a defendant against whom no cause of action has been pleaded

cannot be kept as a party in order to obtain inspection or discovery.

• A company that has ceased to be in juristic existence in the country of its

incorporation, cannot be sued as a defendant.

• But a company in liquidation/receivership can be sued.

• The same person cannot be a plaintiff and a defendant in the same action in
every capacities, but a defendant may be sued in two capacities, such as
personally and as a representative.

• Generally, a person cannot be added as co-defendant against the wishes of

the plaintiff, but the court may add a joint contractor who is within the
jurisdiction as a co-defendant despite the wishes of the plaintiff.

• In a suit in tort, a defendant cannot be added, even if willing, if the plaintiff

opposes. This is to enable the court to effectually and completely adjudicate
upon a matter and settle all questions involved in the matter.

Substitution & addition of parties

Application made through notice of motion supported by affidavit.

Order 1, Rule 10 – CPR 2010

• If a suit is filed with the wrong plaintiff, or there's doubt about who the correct
plaintiff is, the court can change or add the plaintiff at any stage if it was a
genuine mistake.
• The court may, with or without the application of either party, order that the
name of any party improperly joined, whether as plaintiff or defendant, be
struck out and substituted with the right one.
• No person shall be added as a plaintiff suing without a next friend or as the
next friend of a plaintiff under any disability without his consent in writing
thereto.
• Pleadings to be amended to effect the changes.

O1 R 14

Any application to add or strike out or substitute a plaintiff or defendant may be made
to the court at any time before trial by chamber summons or at the trial of the suit in a
summary manner.

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c) Third party
O1 R 15

Where the defendant claims against another party not already a party to the suit –

• entitled to contribution or indemnity;

• entitled to any relief or remedy as plaintiff; or
• same or related subject-matter.

O1 R 16 – government may not be added as third party without leave of court.

Objects of a third-party procedure

• To prevent multiplicity of actions.

• Enable court to settle disputes between all parties in the dispute.
• Save expenses.
• Prevent the same issue being heard twice with a possibility of different results.
• To have the issue between the defendant and third party bound by the decision
in the main action between plaintiff and defendant.
• To have the issue between the defendant and third party decided as soon as
possible after the decision in the main action.

Non-appearance by third party

O1 R 17
In default of entering appearance in time, he shall be deemed to admit the validity of
the decree obtained against the defendant, whether or not by consent, and his own
liability to contribute or indemnify to the extent claimed in the third-party notice.

Judgment upon default

O1 R 19
If the third party makes default in entering appearance or delivering any pleadings
and the defendant giving notice suffers judgment by default, the defendant shall, after
satisfaction of the decree against himself (to be entered on record) be entitled to
judgment against the third party to the extent claimed in the third-party notice.

Appearance by third party

O1 R 22
If the third party enters appearance pursuant to the third-party notice:

• The defendant may apply through chamber summons to the court to give
directions.
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• The court hearing such application may –

✓ if satisfied there is a question as to the liability of the third party to the
defendant, order question of liability to be tried at or after the trial of the
main suit.
✓ if not satisfied, may order judgment to be entered for the defendant giving
notice against third party.

Sample third party application

REPUBLIC OF KENYA

IN THE SENIOR RESIDENT MAGISTRATES COURT AT USORO

CIVIL SUIT NUMBER 36 OF 2021

JOHN DOE – PLAINTIFF

VERSUS

JANE DOE LTD – DEFENDANT

CHAMBER SUMMONS
“EX-PARTE”

(Under Order 1 Rule 15(1)) of the Civil Procedure Rules 2010, Sections 1A & 1B, Civil
Procedure Act and all other enabling provisions of the Law)

LET ALL PARTIES concerned attend before the Honourable Magistrate in Chambers
on the … day of … 2021 at 9 O’clock in the forenoon or soon thereafter so as counsel
for the Defendant/Applicant may be heard on an Application for ORDERS THAT:

1. The Court grant leave to the Defendant to issue and serve a Third-Party Notice
upon SISTE LTD as per the annexed draft Third Party Notice marked “GF1”.
2. The costs of this application be provided for.

WHICH APPLICATION is based on grounds THAT:

a) The proposed third party is SISTE LTD, the owner of the truck and trailer
registration number KKK 345/ZK 001.
b) The Defendant will seek indemnity from the proposed third party for any
award in damages that may be found to be liable from the Defendant to the
Plaintiff.
c) The accident that is the subject matter of this suit was caused by the negligence
of the driver KKK 345/ZK 001.
d) In the interests of justice, the proposed third party be joined to enable
determination of the issue of liability.

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AND WHICH APPLICATION is further grounded on the annexed affidavit of

MARKUS OCHOLA.

DATED at NAIROBI this … day of …. 2021.

WAKILI SHUPAVU & ASSOCIATES

ADVOCATES FOR THE DEFENDANT
Drawn and filed by:

Wakili Shupavu & Associates

P.O. Box 2222

Nairobi

REPUBLIC OF KENYA

IN THE SENIOR RESIDENT MAGISTRATES COURT AT USORO

CIVIL SUIT NUMBER 36 OF 2021

JOHN DOE – PLAINTIFF

VERSUS

JANE DOE LTD – DEFENDANT

SUPPORTING AFFIDAVIT
I, MARKUS OCHOLA, of P.O. Box 123, Nairobi in the Republic of Kenya do hereby
make oath and solemnly state THAT:

1. I am a director of the Defendant Company, familiar with the facts of this matter
thus competent to swear this affidavit.
2. I received an Investigation Analysis Report from XXX Assurance Company
Limited relating to a road traffic accident that occurred on 02/05/2021 along
Nakuru-Nairobi Road which is the basis of this case.
3. According to the Investigation Analysis Report, there was a third party
involved in causing the accident and whom should be apportioned liability.
4. In order to set down this case for hearing, it is necessary that directions be given
as regards the question of liability between the Defendant as against the third
party.
5. The Plaintiff will not be prejudiced in any way by the third-party notice being
issued.

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6. It is in the interest of justice and for a fair dispensation of this matter that this
application be allowed.
7. What is deponed herein is true to the best of my knowledge and belief.

SWORN by the said )

MARKUS OCHOLA )

At NAIROBI ) DEPONENT

On this x day of x 2021 )

Before me: )

COMMISSIONER FOR OATHS )

Drawn and filed by:

Wakili Shupavu & Associates
P.O. Box 2222
Nairobi

(annex third party notice)

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d) Interested party
(see application for amicus)

e) Interpleader
Section 58, Civil Procedure Act
Interpleader proceedings occur in situations a third party (interpleader) is in custody
of property claimed by two or more conflicting claimants.
The third party will then move to court to determine the true owner of the property.

O 34 R 1
• Application is by originating summons – no suit in place.
• Where there’s a pending suit, it shall be by chamber summons.

O 34 R 2 – Averments to be proved by interpleader

• Neutral – claims no interest in the subject-matter except for his charges or costs.
• That there is no collusion between the applicant and any of the claimants.
• That he will be willing to surrender the subject matter to the court.

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Sample Interpleader Pleading – No suit

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

IN THE COMMERCIAL & TAX DIVISION

MISC. APP. NO. 5378 OF 2017

IN THE MATTER OF DELIVERY OF POSSESSION OF CONTAINER NUMBER

XCL3007189-K

BETWEEN

MERLIN CARGO HAULIERS…………………………………….…PLAINTIFF

MWENDWA JOSE………………………………………………….1st DEFENDANT

MWANAISHA BOKE…………………………………………..…….2nd DEFENDANT

ORIGINATING SUMMONS
(S 58, Civil Procedure Act; O 34 R 1-6, Civil Procedure Rules 2010)

LET MWENDWA JOSE and MWANAISHA BOKE the 1st and 2nd Defendant
respectively, and of P. O. Box 57VC-00710 and P. O. Box 789DM-00980, respectively,
within 14 days after service of this summons on them, cause an appearance to be
entered for them to this summons, which is issued upon the application of MERLIN
CARGO HAULIERS, the Plaintiff herein for the determination of the following
questions:

1. The Court to determine who amongst the two parties mentioned hereinabove is
entitled the ownership of the container marked XCL3007189-K, the subject matter
in issue;

2. The Court to determine who amongst the two parties shall be liable to indemnify
the Plaintiff the costs and charges for the importation and demurrage charges of
the said container; and

3. The Court to determine the costs of this application and to determine whom
amongst the two parties shall bear the costs.

WHICH APPLICATION is based on GROUNDS THAT:

a) The Plaintiff holds the suit property.

b) The Defendants have adverse claims on the suit property.
c) The Plaintiff has no interest in the suit property other than for charges and
costs.

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d) The Plaintiff has not colluded with either party.

e) The Plaintiff is willing to surrender the suit property.

WHICH APPLICATION is further supported by the annexed affidavit of PHILIP

OLE PERIO, the nature of the case and other reasons to be adduced at the hearing
hereof.

DATED at NAIROBI this 23rd day of January 2017

THIS SUMMONS was taken out by Prolific Advocates LLP for the above-named
Plaintiff

Signed by DR & Sealed with the Official Court Seal

DEPUTY REGISTRAR

HIGH COURT OF KENYA

DRAWN AND FILED BY:

Prolific Advocates LLP

Arboretum (Our Ref: PA/OS/07/03/17)
P. O. Box 567IOU-00860
NAIROBI

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

IN THE COMMERCIAL & TAX DIVISION

MISC. APP. NO. 5378 OF 2017

IN THE MATTER OF DELIVERY OF POSSESSION OF CONTAINER NUMBER

XCL3007189-K

MERLIN CARGO HAULIERS………………………………..PLAINTIFF

- Versus –

MWENDWA JOSE………………………………………………….….1st DEFENDANT

MWANAISHA BOKE……………………………………………..…...2nd DEFENDANT

SUPPORTING AFFIDAVIT
I, PHILIP OLE PERIO of Elgon Street, P.O Box 30437-00720, Nairobi make oath and
state as follows.

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1. THAT I am an adult of sound mind and the Managing Director of the Plaintiff
herein.

2. THAT in my aforesaid capacity, I am duly authorized and competent to swear this

Affidavit on the Plaintiff’s behalf.

3. THAT the Plaintiff herein is a logistics company dealing with importation of goods
for clients.

4. THAT on the 14/11/2016 the Plaintiff herein received instructions from the 1st
Defendant to import goods contained in a container marked XCL3007189-K.
(Annexed herewith and marked MCH-1 a certified copy of the bill of lading pertaining to
the said container)

5. THAT the container arrived on the 28/12/2016 and has been stored in a depot under
the charge of the Plaintiff herein.

6. THAT the Plaintiff herein informed the 1st Defendant immediately upon the arrival
of the container.

7. THAT 2nd Defendant arrived on the 30/12/2016 intending to receive the container.

8. THAT the 2nd Defendant did not have any notice bearing authority from 1st
Defendant to receive the container on 1st Defendant’s behalf. The Plaintiff therefore
refused to release the goods.

9. THAT the 2nd Defendant insisted on receiving the container, presenting a

Judgment in HCCC No. 36 of 2016 in which the 2nd Defendant was a decree-holder
against the 1st Defendant herein who was the judgment-debtor and an Order
Absolute from a garnishee proceeding granting the 2nd Defendant herein the
property over the garnishment held by third parties on behalf of the 1st Defendant
herein. (Annexed herewith and marked MCH-2 a certified copy of the said Judgment and
Garnishee Order Absolute)

10. THAT the decree from the judgment and the garnishee order absolute mentioned
in paragraph (9) did not specifically list the container as one of the properties to be
delivered over to the 2nd Defendant.

11. THAT further, the container mentioned in paragraph (4) arrived after the issuance
of the judgment and the garnishee order absolute mentioned in paragraph (9).

12. THAT the 1st Defendant has also come to the premises of the Plaintiff’s place of
business to lay claim over the container, insisting that the 2nd Defendant does not
have any colour of right of claim over the container.

13. THAT both the 1st Defendant and 2nd Defendant have now served the Plaintiff
herein with separate demand letters dated the 19/01/2017 and 20/01/2017,
respectively, each giving the Plaintiff 7 days in which to comply and release the
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container to them, or else face a legal suit. (Annexed herewith and marked MCH-3 are
certified copies of the said demand letters)

14. THAT the Plaintiff herein is therefore apprehensive that they may be held liable to
the 1st Defendant should they release the container to the 2nd Defendant and vice
versa.

15. THAT the Plaintiff herein has got no interest in the container held under the parties
charge in the depot, save to the extent of the importations charges and the storage
charges accruing. (Annexed herewith and marked MCH-4 a certified copy of the
Agreement for Consignment between the 1st Defendant and the Plaintiff)

16. THAT the Plaintiff’s relationship with the 1st Defendant is one of an agent service
provider and a client and the Applicant herein is therefore not in collusion with 1st
Defendant.(Annexed herewith and marked MCH-5 a certified copy of the company invoice
receipt and storage charges receipt)

17. THAT the Plaintiff herein is ready to deposit the original document that is the bill
of lading relating to the container as under paragraph (4) with the Court.

18. THAT I swear this affidavit in support of the application seeking to protect the
Plaintiff herein from any action that may be instituted by either party who would
be prejudiced should the Plaintiff herein release the container to the other.

19. THAT the Plaintiff herein therefore seeks the intervention of the Court, by this
application, to determine as to which of the parties between the 1st Defendant and
the 2nd Defendant is eligible to the possession of the container and therefore liable
for the charges arising from importation and storage.

20. THAT the Plaintiff herein also seeks a determination from the Court as to costs
incurred by the Plaintiff arising from this application.

21. THAT what is deponed to hereinabove is true to the best of my information,

knowledge and belief.

SWORN by the said PHILIP OLE PERIO ) _________________

at Nairobi on this 23rd day of January 2017 ) DEPONENT

BEFORE ME: )

COMMISSIONER FOR OATHS: )

DRAWN AND FILED BY:

Prolific Advocates LLP

Arboretum

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P. O. Box 567 NAIROBI

TO BE SERVED UPON:

1. Mwendwa Jose
P. O. Box 57VC-00710
NAIROBI

2. Mwanaisha Boke

Interpleader where there is a pending suit (Plaint filed)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

IN THE COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 5378 OF 2017

MWENDWA JOSE………………………………………PLAINTIFF/1st RESPONDENT

VERSUS

MERLIN CARGO HAULIERS………………………1st DEFENDANT/APPLICANT

MWANAISHA BOKE…………………………2nd DEFENDANT/2nd RESPONDENT

CHAMBER SUMMONS
(Section 3A Civil Procedure Act Cap 21 Law of Kenya, Order 34 rules 1-6, Order 1, rules
10(2) and 14 of the Civil Procedure Rules, 2010)

LET ALL PARTIES CONCERNED attend before the Honourable Judge in Chambers
on the 21st day of February 2017 at 9.00 O'clock in the forenoon or soon thereafter so
as Counsel for the 1st Defendant/Applicant may be heard on an Application for
ORDERS THAT:

1. The Honourable Court do issue a stay of proceedings in the 1st Respondent’s suit
pending the determination of this application.

2. The Honourable Court be pleased to determine the true ownership of the container
marked XCL3007189-K (the “container”).

3. The Honourable Court discharges the Applicant from the 1st Respondent’s suit.

4. The Honourable Court provides for the expenses of the Applicant expended
towards import and storage charges.

5. The Honourable Court provide for the costs of this application.

WHICH APPLICATION is based on the following GROUNDS THAT:

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a) The Applicant is a clearing and forwarding agent engaged by the 1st Respondent
to import a container of goods on their behalf.

b) The Applicant incurred expenses for importation and storage charges.

c) The Applicant is in possession of the container of goods and holds it in lieu of the
monies expended towards undertaking the instructions of the 1st Respondent.

d) The Applicant is ready to deliver the said container and put it in the custody of this
Honourable Court.

WHICH APPLICATION is supported by the annexed affidavit of PHILIP OLE

PERIO, the nature of the case and other reasons to be adduced at the hearing hereof.

DATED at NAIROBI this 30th day of January 2017

Signed
PROLIFIC ADVOCATES LLP
ADVOCATES FOR THE APPLICANT

DRAWN AND FILED BY:

Prolific Advocates LLP

Arboretum (Our Ref: PA/OS/07/03/17)

P. O. Box 567IOU-00860
NAIROBI

TO BE SERVED UPON:

1. Mwendwa Jose
NAIROBI (through the Applicant’s Advocates)

2. Mwanaisha Boke
NAIROBI (through the Applicant’s Advocates)

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THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

IN THE COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 5378 OF 2017

MWENDWA JOSE…………………………………PLAINTIFF/1st RESPONDENT

VERSUS

MERLIN CARGO HAULIERS………………………1st DEFENDANT/APPLICANT

MWANAISHA BOKE…………………………2nd DEFENDANT/2nd RESPONDENT

SUPPORTING AFFIDAVIT
I, PHILIP OLE PERIO of Elgon Street, P.O Box 30437-00720, Nairobi make oath and
state as follows.

1. THAT I am an adult of sound mind and the Managing Director of the Applicant
herein.

2. THAT in my aforesaid capacity, I am duly authorized and competent to swear

this Affidavit on the Applicant’s behalf.

3. THAT the Applicant is a logistics company dealing with importation of goods

for clients.

4. THAT on the 14/11/2016 the Applicant received instructions from the 1st
Respondent to import goods contained in a container marked XCL3007189-K.
(Annexed herewith and marked MCH-1 a certified copy of the bill of lading pertaining
to the said container)

5. THAT the container arrived on the 28/12/2016 and has been stored in a depot
under the charge of the Applicant

6. THAT the Applicant informed the 1st Respondent immediately upon the arrival
of the container.

7. THAT the 2nd Respondent arrived on the 30/12/2016 intending to receive the
container.

8. THAT the 2nd Respondent did not have any notice bearing authority from the
1st Respondent to receive the container on the 1st Respondent’s behalf. The
Applicant therefore refused to release the goods.

9. THAT the 2nd Respondent insisted on receiving the container, presenting a

Judgment in HCCC No. 366 of 2016 in which the 2nd Respondent herein was a
decree-holder against the 1st Respondent herein who was the judgment-debtor

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and an Order Absolute from a garnishee proceeding granting the 2 nd

Respondent the propriety over the garnishment held by third parties on behalf
of the 1st Respondent. (Annexed herewith and marked MCH-2 a certified copy of the
said Judgment and Garnishee Order Absolute)

10. THAT the decree from the judgment and the garnishee order absolute
mentioned in paragraph (9) did not specifically list the container as one of the
properties to be delivered over to the 2nd Respondent.

11. THAT further, the container mentioned in paragraph (4) arrived after the
issuance of the judgment and the garnishee order absolute mentioned in
paragraph (9).

12. THAT the 1st Respondent has also come to the premises of the Applicant’s place
of business to lay claim over the container, insisting that the 2 nd Respondent
does not have any color of right of claim over the container.

13. THAT the 1st Respondent filed a Plaint on the 19/01/2017 and served both the
Applicant and the 2nd Respondent with summons, to which my advocates on
record filed a memorandum of appearance on 29/01/2017 pending the filing of
a written statement of defence. (Annexed herewith and marked MCH-3 a certified
copy of the Plaint and the applicant’s Written Statement of Defence)

14. THAT the Applicant does not have interest in the subject matter and therefore
feel they do not have to file a defence.

15. THAT the Applicant is therefore apprehensive that they may be held liable to
the 1st Respondent in their suit against the Applicant.

16. THAT the Applicant herein has got no interest in the container held under their
charge in the depot, save to the extent of the importations charges and the
storage charges accruing. (Annexed herewith and marked MCH-4 a certified copy of
the company invoice receipt and storage charges receipt)

17. THAT the Applicant’s relationship with the 1st Respondent is one of a service
provider and a client and the Applicant is therefore not in collusion with the 1st
Respondent. (Annexed herewith and marked MCH-5 a certified copy of the
Agreement for Consignment between the 1st Respondent and the Applicant)

18. THAT the Applicant is ready to deposit the original documents of the bill of
lading relating to the container as under paragraph (4) with the Court.

19. THAT I swear this affidavit in support of the application seeking to protect the
Applicant from any action that may be instituted by either of the parties who
would be prejudiced should I release the container to the other.

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20. THAT the Applicant therefore seeks the intervention of the Court, by this
application, to determine as to which of the parties between the 1st Respondent
and the 2nd Respondent is eligible to the possession of the container and
therefore liable for the charges arising from importation and storage.

21. THAT the Honorable Court discharges the Applicant form any liability and
removes them as a party in the 1st Respondent’s suits.

22. THAT the Applicant also seeks a determination from the Court as to costs
incurred by the Applicant arising from this application.

23. THAT what is deponed to hereinabove is true to the best of my information,

knowledge and belief.

SWORN by the said PHILIP OLE PERIO ) _________________

at Nairobi on this 30th day of January 2017 ) DEPONENT

BEFORE ME: )

COMMISSIONER FOR OATHS )

DRAWN AND FILED BY:

Prolific Advocates LLP

Arboretum (Our Ref: PA/OS/07/03/17)
P. O. Box 567IOU-00860
NAIROBI

TO BE SERVED UPON:

1. Mwendwa Jose
P. O. Box 57VC-00710
NAIROBI

2. Mwanaisha Boke

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f) Amicus curiae

Sample application to join amicus curiae

THE REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

IN THE CONSTITUTIONAL & HUMAN RIGHTS DIVISION

MISC. APP. NO…….OF 2020

TSHEDZA MJAE ……………………………..............................................PETITIONER

VERSUS

THE KENYA NATIONAL HIGHWAYS AUTHORITY…….…….1st RESPONDENT

THE NATIONAL LAND COMISSION……………………………2nd RESPONDENT

THE HON’RABLE THE ATTORNEY GENERAL………………..3rd RESPONDENT

AND

THE CABINET SECRETARY, TRANSPORT AND

INFRASTRUCTURE………………….………………APPLICANT/AMICUS CURIAE

Ex-Parte

CHAMBER SUMMONS

(Under Section 3A of the Civil Procedure Act, Order 1 Rules 10(2) and 14 of the Civil
Procedure Rules, 2010)

LET ALL PARTIES CONCERNED attend before the Tribunal on the ..…day of
…………….., 2020 at 9.00 O’clock in the forenoon or as soon thereafter as counsel may
be heard on the hearing of an application on the part of the Applicant in the above suit
FOR ORDERS THAT :

1) Service of this application be dispensed with at the first instance.

2) The Applicant herein, The Cabinet Secretary, Transport and Infrastructure of

the Republic of Kenya, be joined in this suit as amicus curiae forthwith before
the inter partes hearing of the Petition No 6 of 2020.
3) That this application be heard on a priority basis as the Applicant herein is a
necessary party to the above-mentioned suit.
4) That the costs of this application be provided for.
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WHICH APPLICATION is based on the GROUNDS THAT:

a) The Applicant’s presence before the Honourable High Court is necessary at the
inter partes hearing in order to assist the Honourable High Court effectually and
completely adjudicate upon and settle all questions involved in the suit.
b) The Applicant is the top-most government official, in-charge of the concerned
ministry and is the driver of policy for the ministry and is therefore a necessary
party.
c) The Applicant has the relevant information required, and therefore is a necessary
party.
d) The Applicant and their information will allow the Court to arrive at a just
decision.

WHICH APPLICATION is based on the annexed affidavit of JAMES NKUBU and on

such other or further grounds as may be adduced or advanced at the hearing hereof.

DATED at Nairobi this ……………….. day of …………………. 2020

THE HONORABLE THE ATTORNEY GENERAL

ADVOCATES FOR THE APPLICANT

DRAWN & FILED BY:-

OFFICE OF THE ATTORNEY GENERAL

AND DEPARTMENT OF JUSTICE

SHERIA HOUSE, HARAMBEE AVENUE
P.O. Box 40112 – 00100
NAIROBI

TO BE SERVED UPON :

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1.TSHEDZA MJAE

NAIROBI

2. THE NATIONAL LAND COMMISSION

NAIROBI

3. KENYA NATIONAL HIGHWAY AUTHORITY (KENHA)

NAIROBI

THE REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

IN THE CONSTITUTIONAL & HUMAN RIGHTS DIVISION

MISC. APP NO. …. OF 2020

TSHEDZA MJAE ……………………………...............................................PETITIONER

VERSUS

THE KENYA NATIONAL HIGHWAYS AUTHORITY………….1st RESPONDENT

THE NATIONAL LAND COMISSION………………………2nd RESPONDENT

THE HON’RABLE THE ATTORNEY GENERAL………………..3rd RESPONDENT

AND

THE CABINET SECRETARY, TRANSPORT AND

INFRASTRUCTURE……………………….…………APPLICANT/AMICUS CURIAE

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SUPPORTING AFFIDAVIT
I, JAMES NKUBU c/o The Ministry of Transport and Infrastructure, 5th Floor,
Transcom House Haile Selassie Avenue, Nairobi in the Republic of Kenya make oath
and state as follows :-

1. THAT I am an adult male of sound mind and the Cabinet Secretary, Ministry
of Transport and Infrastructure. I am therefore competent to swear this affidavit.
2. THAT my Ministry is charged with overseeing the construction of the Bypass
Highway through the Petitioner’s property.
3. THAT I am aware of the grounds of Petition brought forth by the Petitioner and
have regard to the grounds of opposition presented by the 1st, 2nd and 3rd
Respondents.
4. THAT the parties in their presentations before the court have not had due
regard to Statute Amendment Law No. 2 of 2019 which amended the law as
regards to compulsory acquisition and especially with regard to the provision
under Section 13 of the Land Acquisition Act Chapter 295 Laws of Kenya
(Attached herewith and marked JN-1 please find a true copy of the relevant page of the
Statute Amendment Law No.2 of 2019)
5. THAT in their claim the Petitioner did not take due regard to the amended
position with regard to payment of the due compensation.
6. THAT the 1st, 2nd and 3rd Respondents also did not take heed of the amended
position and therefore did not address it comprehensively in their grounds of
opposition.
7. THAT the information I present in my pleadings as per paragraph (4) above
has not been dealt with by all parties in the Petition.
8. THAT I present this evidential information without holding any party’s brief
and that I believe that this information will particularly assist the Court to make
a just determination in the Petitioner’s suit.
9. THAT I swear this affidavit in support of the application that I be joined as an
amicus curiae to these proceedings.
10. THAT what is deponed on herein is true to the best of my knowledge,
information and belief.

SWORN by the said JOHN NKUBU ) ___________________

) DEPONENT

At Nairobi this day of 2020 )

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BEFORE ME: )

COMMISSIONER FOR OATHS: )

DRAWN & FILED BY:-

OFFICE OF THE ATTORNEY GENERAL

AND DEPARTMENT OF JUSTICE

SHERIA HOUSE, HARAMBEE AVENUE
P.O. Box 40112 – 00100
NAIROBI

TO BE SERVED UPON :

1. TSHEDZA MJAE

NAIROBI

2. THE NATIONAL LAND COMMISSION

NAIROBI

3. KENYA NATIONAL HIGHWAY AUTHORITY (KENHA)

NAIROBI

g) Representative suits
Administrators or executors of the estate of a deceased person may sue or be sued on
behalf of or representing the estate without joining any beneficiaries.

h) Minors and persons of unsound mind

O 32 R 1, 2 – Next friend (Plaintiff)

Every suit by a minor shall be instituted in his name by the next friend; failure to which
it shall be dismissed with costs.

O 32 R 3 – Guardian ad litem (Defendant)

Where the defendant is a minor, the court, on being satisfied of the fact of his minority,
shall appoint a proper person to be guardian ad litem of such minor. Shall have no
interest in the subject matter of the property.

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O 32 R 12 – Where minor attains age of majority

On attaining age of majority, a former minor may elect whether he will proceed with
the suit or application.
The title of the suit or application shall in such case be corrected so as to read
thenceforth thus—

“A.B., late a minor, by C.D., his next friend, but now having attained majority.”

O 32 R 13 – Repudiation of suit

Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall
apply to have his name struck out as co-plaintiff; and the court, if it finds that he is not
a necessary party, shall dismiss him from the suit on such terms as to costs or
otherwise as it thinks fit.

The title of action should read:

Serah Jerotich (a minor) by Cecilia Tarus (her mother and next friend),

and,

Jonas Mambo (a minor) by, Mwadzile Mambo (his father and guardian ad litem)
defendant

Mentally incompetent persons

On a party becoming mentally incompetent during the pendency of a proceeding, the

proceeding is stayed but not discontinued for the incompetent party is unable to
revoke the previous authority given to his counsel to commence or defend
proceedings.

Where an incompetent party recovers during the pendency of a proceeding, they

should apply for an order to discharge the appointment of the next friend or guardian
ad litem.

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6. Commencement of suits

Introduction

Issues to consider before drafting pleadings

• Cause of action – a right was violated, and the defendant is liable.
• Jurisdiction.
• Parties to the suit.
• Reliefs sought.
• Nature of subject matter.

Rules that govern pleadings

Order 2, CPR

• Should state facts and not evidence.

• Facts pleaded must be material facts only.
• Facts must be pleaded but not the evidence with which those facts may be
proved.
• Drafted with sufficient brevity and precision.
• Divided into paragraphs that are numbered consecutively – each allegation in
a separate paragraph.
• Dates and sums must be written in figures and not in words.
• Dated and signed
• Indicate the advocate’s physical address and box number – S 35, Advocates Act.

See Anarita Karimi Njeru v R; Mumo Matemu v Trusted Society Alliance

Striking out pleadings

Order 2, rule 15

At any stage of the proceedings the court may order to be struck out or amended any
pleading on the ground that—

• it discloses no reasonable cause of action or defence in law; or

• it is scandalous, frivolous or vexatious; or
• it may prejudice, embarrass or delay the fair trial of the action; or
• it is otherwise an abuse of the process of the court,

and may order the suit to be stayed or dismissed or judgment to be entered

accordingly, as the case may be.

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Preliminary Objections
Order 2, Rule 9 – A party may by his pleading raise any point of law. Filed when a
party is filing a response to a pleading. Mukisa Biscuit Manufacturing Co. Ltd v West End
Distributors Ltd [1969] EA 696

Done through notice of motion without supporting affidavit as it is purely on a point of

law.

Grounds:

• Time barred – Limitation of Actions Act

• No cause of action
• Lack of jurisdiction
• Lack of capacity to sue
• Res judicata – section 7, CPA
• Sub judice – section 6, CPA
• Defective pleading
• Pleading breaches a mandatory statutory provision/requirement

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Sample Preliminary Objection

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
CIVIL CASE NO E400 OF 2024

HAPPY BANK LIMITED – DEFENDANT

VERSUS

GIFT SPIRITS GENERAL SERVICES LIMITED – PLAINTIFF

NOTICE OF MOTION

(Order 51, CPR; Order 2 Rule 9)

TAKE NOTICE that this Honourable Court shall be moved on x day of x 2024 at 9
O’clock in the forenoon or soon thereafter for counsel for the Defendant may be heard
on an application for ORDERS THAT:

1. This matter be certified as urgent.

2. The Plaintiff’s suit be struck out for want of pecuniary jurisdiction.
3. The Plaintiff’s suit be struck out for disclosing no reasonable cause of action.
4. The costs of this Application be provided for.

WHICH APPLICATION is based on GROUNDS THAT:

a) The Plaintiff’s claim concerns credit facilities amounting to KES 61,000,000;

which is beyond the pecuniary limit of the Magistrate Court.
b) The Plaintiff has not disclosed a reasonable cause of action.
c) The suit is an abuse of court process, null and void ab initio as the court lacks
jurisdiction.
d) The continued litigation of this matter is a waste of judicial time and resources.

The application is further supported by the affidavit of John Mwangi annexed hereto.

Dated at Nairobi this x day of x 2024.

KENTIENO LLP
ADVOCATES FOR THE APPLICANT
Drawn and filed by:
Kentieno LLP
P.O. Box 123
Nairobi

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a) Pleadings by which litigation is commenced and answered

Plaint
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CIVIL DIVISION
CIVIL SUIT NO X OF 2013

DOMINIC JUMLA KHANDI ………………………………………PLAINTIFF

VERSUS

SAMSON SHAP RARA …………………………………………. DEFENDANT

PLAINT
“FAST TRACK”

1. The Plaintiff is a male adult of sound mind who works and resides at Eldoret in the

Republic of Kenya and whose address for the purpose of this suit shall be under

the care of Lino and Co Advocates – Riparian Towers, Ground Floor, Middle

Chambers, Kampala Highway, PO Box 7, Eldoret.

2. The Defendant is a male adult of sound mind who works and resides in Eldoret

within the Republic of Kenya and his address for purposes of this suit is PO Box

123-00100, Eldoret (service to be effected through the Plaintiff’s Advocate’s office).

3. At all material times relevant to this suit, the Defendant was the custodian of the

rare oil painting “The Head of Patriot Kimathi Defying Colonialists and

Contemptuous of Home guards.” (“The Painting”)

4. On or about August 15, 2012, in Eldoret, the Plaintiff agreed to pay the Defendant

Kshs 100,000,000 for the painting – an amount he had kept in readiness to pay the

agreed purchase price.

5. Despite several follow-ups and demands, the Defendant has failed to deliver the

Painting to the Plaintiff.

6. The Plaintiff contends that the failure to deliver the Painting is a breach of contract

and the Defendant should be held liable.

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PARTICULARS OF BREACH OF CONTRACT

a) Offer and Acceptance – the Plaintiff portrayed interest in the Painting and

got into an agreement with the Defendant to procure it.

b) Intention and Consideration – the Plaintiff offered Kshs 100,000,000 for the

Painting.

c) Breach – the Defendant failed to deliver the Painting, violating the

agreement.

7. The Plaintiff avers that consequently, the breach has occasioned him loss.

8. Despite having been made aware of the Plaintiff’s intention to sue, the Defendants

have neglected, failed and/or refused to make good the Plaintiff’s claim, thereby

necessitating the institution of this claim.

9. There is no other suit pending, nor have there been any previous proceedings in

any Court between the Plaintiff and Defendants over the subject matter.

10. This Honourable Court is vested with jurisdiction to hear and determine this

matter.

11. REASONS WHEREOF, the Plaintiff seeks this court to grant the following prayers:

a) Judgment to force the Defendant to deliver the Painting to the Plaintiff as

agreed

b) Compensation in substitution for non-delivery

c) Costs of the suit

d) Any other relief the court may deem fit

DATED at ELDORET on this ….. Day of…… 2013

(Signature)

LINO & CO ADVOCATES

ADVOCATES FOR THE PLAINTIFF

Drawn and filed by:

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LINO & CO ADVOCATES

RIPARIAN TOWERS, GROUND FLOOR, MIDDLE CHAMBERS
KAMPALA HIGHWAY, PO BOX 7
ELDORET, KENYA

To be served upon:

DOMNIC KHANDI
PO BOX 123-00100 ELDORET

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CIVIL DIVISION
CIVIL SUIT NO X OF 2013
DOMINIC JUMLA KHANDI ………………………………………PLAINTIFF

VERSUS

SAMSON SHAP RARA …………………………………………. DEFENDANT

VERIFYING AFFIDAVIT

I DOMINIC JUMLA KHANDI, of P.O BOX XYZ, in the Republic of Kenya hereby

make oath and state as follows:

1. THAT I am the Plaintiff in this suit and well acquainted with the facts and hence

competent to swear this affidavit.

2. THAT I have read and understood the contents of this Plaint and verify that

the same are correct.

3. THAT there is no past or pending suit between the Plaintiff and the Defendants

over the same subject matter.

4. THAT what is deponed herein is true to the best of my knowledge, information

and belief.

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SWORN by the said )

DOMINIC JUMLA KHANDI ) DEPONENT

……………………………. )

At Eldoret this …… day of ……... 2013 )

BEFORE ME )

COMMISSSIONER FOR OATHS )

Drawn and filed by:

LINO & CO ADVOCATES

RIPARIAN TOWERS, GROUND FLOOR, MIDDLE CHAMBERS

KAMPALA HIGHWAY, PO BOX 7

ELDORET, KENYA

To be served upon:

DOMNIC KHANDI

PO BOX 123-00100 ELDORET

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REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL DIVISION

CIVIL SUIT NO X OF 2013

DOMINIC JUMLA KHANDI ………………………………………PLAINTIFF

VERSUS

SAMSON SHAP RARA …………………………………………. DEFENDANT

LIST OF DOCUMENTS
(Pursuant to Order 3 Rule 2)

1. Demand letter

2. The Painting

3. Receipts

4. Witness statements

DATED at ELDORET this……………. day of …………………2013

Drawn and filed by:

LINO & CO ADVOCATES

RIPARIAN TOWERS, GROUND FLOOR, MIDDLE CHAMBERS
KAMPALA HIGHWAY, PO BOX 7
ELDORET, KENYA

To be served upon:

DOMNIC KHANDI

PO BOX 123-00100 ELDORET

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REPUBLIC OF KENYA

IN THE MAGISTRATES COURT AT VIMAX

CIVIL CASE X OF 2005

DAN………………………………………………. PLAINTIFF

VERSUS

DERRICK ………………………..…..….….… 1ST DEFENDANT

MARY ………………………………..……… 2ND DEFENDANT

PLAINT
“FAST TRACK”

1. The Plaintiff is a male adult of sound mind working and residing in Vimax District

in the Republic of Kenya. His address for the purpose of this suit shall be under

the care of M/S Xavier and Co Advocates, Y Plaza, P.O. Box 24 Ubungo.

2. The 1st Defendant is a male adult of sound mind, who works and resides in Vimax

District within the Republic of Kenya. Her address for the purpose of this suit shall

be Pom Plaza, P.O. Box 124 Ubungo (service to be effected through the Plaintiff’s

Advocate’s Office).

3. The 2nd Defendant is a female adult of sound mind, who works and resides in

Vimax District within the Republic of Kenya. Her address for the purpose of this

suit shall be Pom Plaza, P.O. Box 124 Ubungo (service to be effected through the

Plaintiff’s Advocate’s Office).

4. At all material times relevant to this suit, the 1st Defendant was the driver of motor

vehicle Registration Number KBS 149A, a bus in which Dan was a fare paying

passenger. The 2nd Defendant was his employer and owner of the motor vehicle.

5. On or about 20th November 2004 in Vimax District, the 1st Defendant so

negligently, recklessly and carelessly drove, controlled and/or managed motor

vehicle reg no KBS 149A that he caused it to hit the Plaintiff, occasioning serious

injuries which broke his left leg.

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PARTICULARS OF NEGLIGENCE

a) Driving at a speed which was excessive in the circumstances.

b) Failing to apply brakes in sufficient time to avoid causing the accident.

c) Causing or permitting the motor vehicle to veer off the road

d) Driving a vehicle in an unroadworthy condition.

6. As a consequence of the said accident, the Plaintiff has suffered loss and damage.

PARTICULARS OF SPECIAL DAMAGES

a) Medical expenses – 70,000

b) Transport by cab – 30,000

c) House help – 20,000

d) Medical opinion – 5000

7. The Plaintiff avers that the 2nd Defendant is vicariously liable for the loss and

damage caused by the 1st Defendant as he was her employee.

8. The Plaintiff avers that they also seek general damages

PARTICULARS OF GENERAL DAMAGES

a) Pain and suffering

b) Loss of amenities

9. Despite demand and notice of intention to sue being made, the Defendants have

neglected, failed and/or refused to settle the Plaintiff’s claim, thus the suit herein.

10. There is no other suit pending, nor have there been any previous proceedings, in

any court between the Plaintiff and the Defendants over the same subject matter

alluded to herein.

11. The cause of action arose within the jurisdiction of this Honourable Court.

REASONS WHEREFORE, the Plaintiff seeks this court to grant the following prayers:

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a) Special damages of Kshs 125,000

b) General damages for pain and suffering

c) Any other relief that the court may deem fit

d) Cost of the suit and interest thereon

Dated this…. Day of ….. 2005.

(Signature)

XAVIER AND CO ADVOCATES

ADVOCATES FOR THE PLAINTIFF

Drawn and filed by:

XAVIER AND CO ADVOCATES

Y Plaza, P.O. Box 24 Ubungo

To be served upon

1. Derrick

Pom Plaza, 124 Ubungo

2. Mary

Pom Plaza, 124 Ubungo

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REPUBLIC OF KENYA

IN THE MAGISTRATES COURT AT VIMAX

CIVIL CASE X OF 2005

DAN………………………………………………. PLAINTIFF

VERSUS

DERRICK ………………………..…..….….… 1ST DEFENDANT

MARY ………………………………..……… 2ND DEFENDANT

VERIFYING AFFIDAVIT

I DAN, of P.O BOX 7099-00100 Vimax, in the Republic of Kenya hereby make oath

and state as follows:

1. THAT I am the Plaintiff in this suit and well acquainted with the facts and hence

competent to swear this affidavit.

2. THAT I have read and understood the contents of this Plaint and verify that

the same are correct.

3. THAT there is no past or pending suit between the Plaintiff and the Defendants

over the same subject matter.

4. THAT I what is deponed herein is true to the best of my knowledge,

information and belief.

SWORN by the said )

DAN ) DEPONENT

……………………………. )

At Vimax this …… day of ……... 2005 )

BEFORE ME )

COMMISSSIONER FOR OATHS )

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Drawn and filed by:

XAVIER AND CO ADVOCATES

Y Plaza, P.O. Box 24 Ubungo

To be served upon

1. Derrick

Pom Plaza, 124 Ubungo

2. Mary

Pom Plaza, 124 Ubungo

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REPUBLIC OF KENYA

IN THE MAGISTRATES COURT AT VIMAX

CIVIL CASE X OF 2005

DAN………………………………………………. PLAINTIFF

VERSUS

DERRICK ………………………..…..….….… 1ST DEFENDANT

MARY ………………………………..……… 2ND DEFENDANT

PLAINTIFF’S LIST OF DOCUMENTS

(Pursuant to Order 3 Rule 2)

1. Demand letter

2. Medical report

3. Receipts

4. Bills

5. Witness statements – Dan, Jayden, the Doctor

DATED at UBUNGO this……………. day of …………………2005

Drawn and filed by:

XAVIER AND CO ADVOCATES

Y Plaza, P.O. Box 24 Ubungo

To be served upon

1. Derrick
Pom Plaza, 124 Ubungo
2. Mary
Pom Plaza, 124 Ubungo

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REPUBLIC OF KENYA
IN THE MAGISTRATES COURT AT NAIROBI
CIVIL CASE X OF 2023
FUMO LIYONGO – PLAINTIFF
V
KYADUNDU SSEMPEBWA – DEFENDANT
PLAINT
“FAST TRACK”

1. The Plaintiff is a male adult of sound mind, residing and working for gain at
Kangemi, Nairobi, Kenya. His address of service for purposes of this suit shall
be in the care of ONYALA BIOSI AND COMPANY ADVOCATES, GROUND
FLOOR, SHERIA PLAZA ALONG LANG’ATA SOUTH RD, NAIROBI
COUNTY. Email: [email protected]
2. The Defendant is a male adult of sound mind, a Ugandan national, who at the
time of this suit was visiting Kenya for a conference. His address of service for
purposes of this suit is P.O. Box 35, JINJA. (Service of summons shall be effected
through the Plaintiff’s Advocates)
3. At all material times relevant to this suit, the Plaintiff was a peaceful pedestrian
crossing Waiyaki Way, having alighted from a Matatu, heading to the polling
centre in Westlands Primary School.
4. On or about 9/8/2022, the Defendant, negligently, recklessly and without any
care whatsoever, caused the motor vehicle of registration number UBA 007M
to veer off the road, “as if from nowhere”, and excruciatingly knocked the
Plaintiff, causing him multiple injuries.

PARTICULARS OF NEGLIGENCE

a) Duty of care – being a licensed driver, the Defendant owes every road user a
duty of care to drive with caution.
b) Breach of duty – the Defendant recklessly knocked the Plaintiff.
c) Damages – the Plaintiff sustained gruesome injuries.

5. So far as is necessary, the Plaintiff will rely on the doctrine of “Res ipsa
loquitor”.
6. Following the Defendant’s negligence, the Plaintiff suffered damages as
follows:
PARTICULARS OF SPECIAL DAMAGES

a) Medical treatment – 2,500,000

b) Post-discharge procedures – 500,000

7. The Plaintiff avers that they also seek general damages

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PARTICULARS OF GENERAL DAMAGES

a) Pain and suffering

b) Loss of amenities

8. Demand had been sent to the Defendant seeking compensation for the damages
caused, which has since been ignored thus occasioning this suit.
9. There is no other pending or previous suit on the same subject matter.
10. This Honourable Court has jurisdiction over this matter, the accident having
occurred within its territorial jurisdiction.
11. REASONS WHEREFORE, the Plaintiff prays THAT:
a) Special damages of 3,000,000
b) General damages
c) Cost of the suit and interest thereon
d) Any other reliefs this Honourable Court may deem just and expedient.

DATED at NAIROBI this 23rd Day of March 2023

KENTIENO

ONYALA BIOSI AND COMPANY ADVOCATES

ADVOCATES FOR THE PLAINTIFF

Drawn and filed by:

ONYALA BIOSI AND COMPANY ADVOCATES

Ground Floor, Shule ya Sheria Plaza

Langata South Road, Nairobi

To be served upon:

KYADUNDU SSEMPEBWA

P.O. Box 35, JINJA

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REPUBLIC OF KENYA

IN THE MAGISTRATES COURT AT NAIROBI

CIVIL CASE X OF 2023

FUMO LIYONGO – PLAINTIFF

KYADUNDU SSEMPEBWA – DEFENDANT

VERIFYING AFFIDAVIT
I, Fumo Liyongo, of P.O. Box 69 Kangemi, in the Republic of Kenya, do hereby make
oath and state as follows:

1. THAT I am the Plaintiff conversant with the facts of this suit thus competent to
swear this affidavit.
2. THAT I have read and understood the Plaint and confirm everything as true.
3. THAT there is no other matter, pending or present, over the same subject
matter in another court.
4. THAT what is deponed herein is true to the best of my knowledge, belief and
information.

DATED at NAIROBI this 22nd Day of March 2023

SWORN by the said )

FUMO LIYONGO )
At NAIROBI ) DEPONENT
This 23 Day of March 2023
rd )
COMMISSIONER FOR OATHS )

Drawn and filed by:

ONYALA BIOSI AND COMPANY ADVOCATES

Ground Floor, Shule ya Sheria Plaza
Langata South Road, Nairobi

To be served upon:

KYADUNDU SSEMPEBWA
P.O. Box 35, JINJA

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REPUBLIC OF KENYA
IN THE MAGISTRATES COURT AT NAIROBI
CIVIL CASE X OF 2023

FUMO LIYONGO – PLAINTIFF

KYADUNDU SSEMPEBWA – DEFENDANT

LIST OF DOCUMENTS
(Order 3 Rule 2)

The Plaintiff shall rely on the following documents

1. Demand Letter
2. Medical receipts
3. Motor vehicle log-book
4. Witness statements

DATED at NAIROBI this 23rd day of March 2023

Drawn and filed by:

ONYALA BIOSI AND COMPANY ADVOCATES
Ground Floor, Shule ya Sheria Plaza
Langata South Road, Nairobi

To be served upon:
KYADUNDU SSEMPEBWA
P.O. Box 35, JINJA

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Statement of Claim
REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

ELRC CAUSE NO. OF 2017

MARIA JOGINDER………………………………………………………….CLAIMANT

VERSUS

THE CLERK,

COUNTY ASSEMBLY OF WAKORA COUNTY………………….1st RESPONDENT

THE COUNTY ASSEMBLY SERVICE

BOARD OF WAKORA COUNTY…..................................................2nd RESPONDENT

STATEMENT OF CLAIM

ISSUES IN DISPUTE:

(i) Unfair termination of services contrary to the provisions of Sections 45, 40, 35 and
36 of the Employment Act Cap 226 ;
(ii) Unfair Labour Practice contrary to the provisions of Article 41(1) of the
Constitution of Kenya.
A. THE PARTIES:

1. The Claimant is an individual, residing in Wakora County and whose address

of services for the purposes of this Claim shall be care of AKILI & CO.
ADVOCATES, BAZAR PLAZA, 5TH FLOOR, ALONG MOI AVENUE, P. O
BOX 1234-00100 NAIROBI.
2. The 1stRespondent is a Clerk of the County Assembly of Wakora County.
(Service on the 1stRespondent shall be effected through the Claimant’s
advocates’ offices);
3. The 2nd Respondent is the County Assembly Board of Wakora County. (Service
on the 2ndRespondent shall be effected through the Claimant’s advocates’
offices);
4. At all material times, the Respondents herewith, employed the Claimant as a
Speaker of the Wakora County Assembly through the 2nd Respondent;

B. GROUNDS OF CLAIM

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5. On 31st October 2015, the Claimant had gone on a bench-marking trip to

Germany, in company of three other members of the County Assembly;
6. On arrival from the said official trip, the Claimant found her doors locked, and
was informed by a security guard that she was no longer a Speaker of Wakora
County;
7. The Claimant alleges that she had been impeached in-absentia on the basis that
the majority leader of the Assembly had allegedly irregularly authorized
procurement of motor vehicle insurance for the County Assembly;
8. The Claimant further alleges that she was not present when the alleged
irregular authorization was being transacted, and that the only transaction she
knew about had been regularly sanctioned by the County Office;
9. The Claimant sought and obtained orders for stay against the improper
dismissal, but the County Assembly, through the 1st Respondent, went ahead
and advertised and filled her position.

C. PROVISIONS OF LAW

10. The Claimant shall rely on the following provisions of the laws, rules and
conventions
(i) The Constitution of Kenya, 2010, Articles 22, 23, 41, 47 and 50.
(ii) The Employment Act, Cap 226, Sections 17(1), 17(10), 18(1), 18(2), 18(4),
18(5)(B), 19(1), 19(4), 19(5), 19(6), 20, 35(2), 36, 40(1), 43, 45, 49, 51 & 74;
(iii) The Employment and Labour Relations Court Act, 2011 Section 12;
(iv) The ILO Termination of Employment Convention No. 158 of 1982,
Articles 4 & 14;
(v) The Employment and Labour Relations Court (Procedure) Rules, 2016,
Rules 4, 7, 11, 14, 25, 28, 29, 32, 38 & 39.

D. LIST OF DOCUMENTS

11. The Claimant shall rely on the following documents:

(i) The employment contract between the Claimant and Wakora County
Assembly Board;
(ii) The newspaper notice of vacancy of Speaker at the Wakora County
Assembly; and
(iii) Three monthly salary slips.

E. RELIEF

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12. In view of the foregoing, we pray to this Honourable Court to grant the
following Orders:
i) A declaration that 1st& 2nd Respondents unfairly terminated the
employment of Claimant
ii) An Order directing the Respondents to pay the Claimant outstanding
salary arrears for the Months of November and December 2015 as
follows:
a. Two Month Salary Arrears @ Kshs.480,000.00 per month, totaling
Kshs.960,000.00 less statutory deductions;
iii) An Order directing the Respondent to pay the Claimant three-month
salary in lieu of notice as follows:
a. Three Month Salary in lieu of notice @ Kshs.480,000.00 per month,
totaling Kshs. 1,440,000.00; and
iv) An Order directing the Respondent to pay the Claimant Damages for
unfair termination as follows:
v) An Order directing the Respondent to pay the Claimants terminal
benefits on a prorated basis as follows:
a. Retirement benefits
b. County Assembly benefits
vi) Costs
vii) Interest on (ii), (iii), (iv), (v) and (vi) above at Court rates;
viii) An Order directing the Respondents to issue the Claimant with work
certificates that are not prejudicial to the Claimant;

DATED at NAIROBI this……………….……………day

of……………………………2015

AKILI & COMPANY ADVOCATES

FOR THE CLAIMANT

DRAWN & FILED BY:-

AKILI & COMPANY ADVOCATES

BAZAR PAZA, 5TH FLOOR
ALONG MOI AVENUE
P. O BOX 1234 – 00100
WAKORA

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TO BE SERVED UPON:

(Through the Claimant’s Advocates’ Offices)

REPUBLIC OF KENYA

IN THE EMPLYMENT AND LABOUR RELATIONS COURT AT NAIROBI

ELRC CAUSE NO. OF 2017

MARIA JOGINDER…………………………………………….CLAIMANT

VERSUS

THE CLERK,

COUNTY ASSEMBLY OF WAKORA COUNTY………………...1st RESPONDENT

THE COUNTY ASSEMBLY

SERVICE BOARD OF WAKORA COUNTY………………........2nd RESPONDENT

VERIFYING AFFIDAVIT

I, MARIA JOGINDER, a resident of Nairobi and of Post Office Box Number 56789-

00101 Nairobi in the Republic of Kenya do hereby make oath and state THAT:

1. I am the Claimant herein, conversant with the facts of this dispute, thus I am

competent to depone to this Affidavit on my behalf.

2. I have read and understood the Statement of Claim filed herewith and I verify

that it is true and correct.

3. What I have deponed to herein is true to the best of my knowledge and belief,

save where I have relied on information, sources whereof I have disclosed.

SWORN at NAIROBI by the said )

MARIA JOGINDER ) …………………

) DEPONENT

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This day of 2017 )

BEFORE ME )

COMMISSIONER FOR OATHS )

DRAWN & FILED BY:-

AKILI & COMPANY ADVOCATES

BAZAR PAZA, 5TH FLOOR

ALONG MOI AVENUE

P. O BOX 1234 – 00100

WAKORA

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Memorandum of Claim
(find sample)

Originating Summons (OS)

Order 37, CPR

The ‘Originating summons’ is a shortened version of a Plaint which is intended for

simpler, shorter and speedier process. When a party approaches the Court with
Originating Summons [hereinafter referred to OS], there are:

• no witnesses, and
• evidence is by way of Affidavit.

Besides, the question for determination by the Court is raised directly in the summons.

Parties Authorized to Use OS:

• Executors or administrators of a deceased person's estate or trustees under any

deed.
• Any person claiming to be interested in the relief sought as a creditor, devisee,
legatee, heir, or cestui que trust under certain circumstances.

Matters Addressed by OS

Order 37, Rule 1

• Determination of questions affecting the rights or interests of individuals.

• Ascertainment of classes of individuals like creditors, devisees, legatees, or
heirs.
• Accounts, payments into court, and other financial matters related to estates or
trusts.
• Directions for executors, administrators, or trustees.
• Approval of transactions and other issues arising from estate or trust
administration.
• Various applications, including those related to land transactions, adverse
possession, registered land, chattels transfer, trusts, and more.

Quick:

• Adverse possession
• Interpleader – no suit pending

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Draft OS – Adverse Possession

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT No. 1523 OF 2005

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT

AND IN THE MATTER OF LAND PARCELS REFERENCE No. 196/XX

BETWEEN

KAMLESH PAKORE ………………………………………………Plaintiff

AND

NJOROGE KARIUKI ………………………………………………………… Defendant

ORIGINATING SUMMONS
(Under Sections 17, 18, 37, and 38 of the Limitation of Actions Act, Cap 22 and Order 37 of
the Civil Procedure Rules, 2010 and all other enabling provisions of the law)

Let NJOROGE KARIUKI of Post Office Box 24990 – 00502, Nairobi within 15 days
after service of this summons on him enter appearance to this summons which is
issued on the application of KAMLESH PAKORE who claims to have acquired Land
Reference No. 196/XX (“hereinafter called the suit land”) for ORDERS THAT:

1. The Plaintiff be declared the legal owner entitled by adverse possession of over
twelve (12) years since 1989 ALL THAT parcel of land comprised in Title No.
LR No. 196/XX situated in Nairobi.
2. The said Plaintiff be registered as the sole proprietor of the said parcel of land
namely, LR No. 196/XX in place of the Respondent in whose favour the land is
currently registered.
3. The last original indentures in respect of LR No. 196/XX which is with the
Respondent be dispensed with.
4. Costs of this application be provided for.

Dated at Nairobi this ……… day of ………. 2005.

ASIEMA & CO. ADVOCATES

ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY

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ASIEMA & CO. ADVOCATES

OCCIDENTAL PLAZA, 4TH FLOOR, MUTHITHI ROAD,
P. O. BOX 11789 – 00400,
NAIROBI

TO BE SERVED UPON

NJOROGE KARIUKI,
TIMES TOWERS, HAILLE SELASIE AVENUE,
P.O. BOX 48240,
NAIROBI

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT No. 1523 OF 2005

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT

AND IN THE MATTER OF LAND PARCELS REFERENCE No. 196/XX

BETWEEN KAMLESH PAKORE ………………………………………………Plaintiff

AND

NJOROGE KARIUKI ………………………………………………………… Defendant

SUPPORTING AFFIDAVIT

I, KAMLESH PAKORE, of P. O. Box 24990 - 00502, Nairobi, residing on House No.

287, Dagoretti road, Karen, Nairobi within the Republic of Kenya do hereby make oath
and state as follows:
1. THAT I am the plaintiff herein with the knowledge of the facts in issue hence
competent to swear this affidavit.
2. THAT I have been living on land parcel known as LR No. 196/XX House No. 287,
Dagoretti road, Karen, Nairobi with my wife and children since August 1989.
3. THAT the Defendant is the registered proprietor of the suit land. (I attach hereto
and mark AR – 1 a true certified copy of the title deed to the suit land.)
4. THAT I learnt of the existence of the said land in 1989 through one Simonson who
was the Defendant’s next-door neighbour.
5. THAT Mr. Simonson informed me, which information I verily believed to be true
that the Defendant had vacated the suit land sometime in 1970’s and left Kenya with
his wife to settle in the United Kingdom of Britain as he and his wife both held British
Nationalities.
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6. THAT to the best of my knowledge, neither the Defendant nor his wife has ever
come back to Kenya since they left to settle and make their future in Britain.
7. THAT in the interim I paid up all the utility bills inclusive of water, electricity,
telephone and land rates. (I annex and make the same as AR-2).
8. THAT in addition to paying all the utility bills I have continuously maintained the
dwelling house, the grounds, the boundary fence and all other facilities on the
premises to a reasonable habitable standard all at my own cost.
9. THAT my family and I have enjoyed uninterrupted continual possession of the said
property since August 1989.
10. THAT I pray to the Honourable Court to declare me the legal owner entitled by
adverse possession of over twelve (12) years since 1989.
11. THAT the facts deponed herein are true to the best of my knowledge.

SWORN by the said: )

KAMLESH PAKORE )
At NAIROBI ) Deponent
This x day of x 2005 )

Before me )
Commissioner for Oaths )

DRAWN & FILED BY

ASIEMA & CO. ADVOCATES

OCCIDENTAL PLAZA, 4TH FLOOR, MUTHITHI ROAD,
P. O. BOX 11789 – 00400,
NAIROBI

TO BE SERVED UPON

NJOROGE KARIUKI,
TIMES TOWERS, HAILLE SELASIE AVENUE,
P.O. BOX 48240,
NAIROBI

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Notice of Motion – Injunction (Mareva)

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
MISC CIVIL APPLICATION NO X OF 2021

TRUMBAL KERRY – APPLICANT

MALAIKA MWEMA – RESPONDENT

CERTIFICATE OF URGENCY
I, Emali, an advocate of the High Court of Kenya practising in the name and style of
Emali & Co Advocates certify that this application is urgent on the grounds that the
applicant obtained a ruling for delivery of motor vehicle KTZ 132Z and KZB 146B,
which delivery has not been effected and the respondent is in the process of disposing
of the motor vehicles, which actions are in contempt of this court.

Dated at NAIROBI this 17th day of June 2021.

(SIGN)
ADVOCATES FOR THE APPLICANT
EMALI & CO ADVOCATES

Drawn and filed by:

Emali & Co Advocates

P.O. Box 111-000
Nairobi

To be served upon:

Malaika Mwema
P.O. Box 123-000
Nairobi

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REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI

MISC CIVIL APPLICATION NO X OF 2021

TRUMBAL KERRY – APPLICANT

MALAIKA MWEMA – RESPONDENT

NOTICE OF MOTION
(Order 51 Rule 1, Civil Procedure Rules; Order 39, CPR 2010)

TAKE NOTICE that this Honourable Court shall be moved on the…day of…2021 at
9 O’clock in the forenoon or soon thereafter as the matter may be heard upon
application by counsel for the applicant for orders THAT:

1. This Application be certified as urgent, and service dispensed with at first

instance.
2. The Respondent be restrained from disposing of motor vehicle KTZ 132Z and
KZB 146B, and the same be delivered to the applicant.
3. The Respondent be held in contempt of court.
4. The Respondent be committed to civil jail.

Which orders are based on GROUNDS THAT:

a) This Honourable Court delivered a ruling against the respondent for delivery
of the vehicles on 1st April 2019.
b) The Respondent has failed to deliver the vehicles and is in the process of
disposing them of.
c) Failure to restrain the Respondent from disposing of the motor vehicles will
occasion loss to the Applicant.
d) The actions of the Respondent are in contempt of court.

AND WHICH APPLICATION is grounded in the annexed affidavit of TRUMBALL

KERRY and on further grounds to be adduced at the hearing.

Dated at NAIROBI this 17th day of June 2021.

(SIGN)

ADVOCATES FOR THE APPLICANT

EMALI & CO ADVOCATES

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Drawn and filed by:

Emali & Co Advocates

P.O. Box 111-000
Nairobi

To be served upon:

Malaika Mwema
P.O. Box 123-000
Nairobi

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI

MISC CIVIL APPLICATION NO X OF 2021

TRUMBAL KERRY – APPLICANT

MALAIKA MWEMA – RESPONDENT

SUPPORTING AFFIDAVIT
I, TRUMBALL KERRY, of P.O. Box 111 Nairobi, a resident of Nairobi in the Republic
of Kenya hereby make oath and state as follows:

1. THAT I am the applicant hence competent to swear this affidavit.

2. THAT the court on 1st April 2019, delivered a ruling directing the respondent
to deliver motor vehicles KTZ 132Z and KZR 146B to me.
3. THAT the respondent has failed to deliver the motor vehicles and is in the
process of disposing of them.
4. THAT the actions of the respondent are in contempt of court.
5. THAT what is deponed herein is true to the best of my knowledge and
information.

Sworn by the said TRUMBALL KERRY )

At NAIROBI this 17th day of June 2021 )

) Deponent

Before me )

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COMMISSIONER FOR OATHS )

Drawn and filed by:

Emali & Co Advocates

P.O. Box 111-000
Nairobi

To be served upon:

Malaika Mwema
P.O. Box 123-000
Nairobi

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Chamber Summons
Chamber summons is an application done within a suit seeking orders that can be for
instance, preservatory or interim in nature pending the hearing of a suit.

Application:

• Third-party proceedings
• Interpleader (where plaint has been filed)
• JR leave stage
• Matters pursuant to the Advocates Act e.g. reference
• Objection proceedings

Sample CS – Reference
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC CIVIL APPLICATION NO X OF 2023

BETWEEN

KENTIENO LLP – APPLICANT

AND
TAXING MASTER – RESPONDENT

“EX-PARTE”
CHAMBER SUMMONS
(Rule 11, Advocates Remuneration Order)
LET ALL PARTIES CONCERNED attend the Honourable Judge in chambers on the
x day of x 2023 at 9 o’clock in the forenoon or soon thereafter as counsel for the
Applicant may be heard for ORDERS THAT:
1. This application be certified urgent and service thereof be dispensed with in
the first instance.
2. The ruling of the Taxing Officer(Hon M Tasia) sitting as the Deputy Registrar
of Kisaki Employment and Labour Relations Court striking out the advocate
client bill of costs be set aside.
3. The jurisdiction of the Taxing Officer to tax the bill of costs be affirmed, as there
was no valid fee agreement.
4. The matter be remitted back to the Taxing Officer for reconsideration in light of
the proper jurisdiction and absence of a valid fee agreement.
5. The costs of this application be provided for.

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WHICH APPLICATION is based on further grounds in the annexed supporting

affidavit of KENTIENO.

Dated at Nairobi this x day of x 2024.

KENTIENO LLP
ADVOCATES FOR THE APPLICANT

Drawn and filed by:

Kentieno LLP
P.O. Box 123
Nairobi

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Petition (Election, Constitutional, Matrimonial Causes & Winding up

Proceedings)
Constitutional Petition
Art 22, 258 – right to institute court proceedings.

Art 23(3) – Reliefs that can be offered:

• A declaration of rights
• Injunction
• Conservatory order
• Declaration of invalidity of law
• Compensation
• Judicial review

Framing constitutional issue in litigation

Per Anarita Karimi v R; Mumo Matemu v Trusted Society of Human Rights Alliance

• Precision in Pleadings – petitioner must clearly outline the specific provisions of

the Constitution that are alleged to have been violated.
• Specificity of Constitutional Violations – petitioner must specify the manner in
which the constitutional provisions have been violated. This involves detailing the
facts and circumstances that constitute the alleged violation.
• Adherence to procedural rules
• Evidence supporting allegations

Mutunga Rules

Rule 10

(2) The petition shall disclose the following—

• the petitioner’s name and address;

• the facts relied upon;
• the constitutional provision violated;
• the nature of injury caused or likely to be caused
• details regarding any civil or criminal case, involving the petitioner or any of
the petitioners, which is related to the matters in issue in the petition;
• the petition shall be signed by the petitioner or the advocate of the petitioner;
and
• the relief sought by the petitioner

(3) Supported by affidavit

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Election Petition
Election (Parliamentary and County) Petition Rules 2017 provides that an election petition
shall contain:

• the name and address of the petitioner;

• the date when the election in dispute was conducted;
• the results of the election, if any, and however declared;
• the date of the declaration of the results of the election;
• the grounds on which the petition is presented; and
• the name and address of the advocate, if any, for the petitioner which shall be
the address for service. (r.7(1))

The petition shall be divided into paragraphs, each of which shall be confined to a
distinct portion of the subject, and every paragraph shall be numbered consecutively.
(r.7(2))

A petition shall—

a) be signed by the petitioner or by a person duly authorized by the petitioner;

b) be supported by an affidavit by the petitioner containing the grounds on which
relief is sought and setting out the facts relied on by the petitioner; and
c) be in number of copies as would be sufficient for the court and all respondents
named in the petition. (r.7(3))

The petition shall conclude with a prayer, requesting the court to make the
appropriate relief which may include—

a) a declaration on whether or not the candidate whose election is questioned was

validly elected;
b) a declaration of which candidate was validly elected;
c) an order as to whether a fresh election should be held;
d) scrutiny and recount;
e) payment of costs; or
f) determination as to whether an electoral malpractice of a criminal nature may
have occurred. (r.7(4))

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Sample Constitutional Petition

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. …... OF 2023

IN THE MATTER OF: ARTICLES 2(1), 2(4),3(1),10, 22, 23, 258 AND 259 OF THE
CONSTITUTION OF KENYA

AND

IN THE MATTER OF: DENIAL OF RIGHTS, VIOLATIONS AND

INFRINGEMENT OF ARTICLES 27, 28, 42, 43(1)(f), 47
AND 258 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: SECTIONS 3, 4, 5 AND 6 OF THE FAIR

ADMINISTRATIVE ACTIONS ACT

AND

IN THE MATTER OF: EXPULSION OF THE PETITIONER FROM

UNIVERSITY STUDIES AT JITAHIDI UNIVERSITY

BETWEEN

SHAMDO…………...............................................................................…… PETITIONER

VERSUS

JITAHIDI UNIVESITY ………………..……………………..…………..RESPONDENT

PETITION

The Humble Petition of MR. SHAMDO, the Petitioner herein whose address for
service for purposes of this Petition shall be in the care of KRK Advocates LLP, Britam
Tower (7th Floor), Hospital Road, Upper Hill, P. O. Box 6463 – 00100, Nairobi in the
Republic of Kenya is as follows;

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A. DESCRIPTION OF THE PARTIES

1. The Petitioner is a male adult of sound mind who joined and studies at Jitahidi
University (Respondent University) undertaking a diploma in Music
Engineering in the Respondent University. At the time of institution of this
Petition, the Petitioner was a 4th year student in the Respondent University.

2. The Respondent is a University having capacity to sue or being sued, its

address for service for purposes of this Petition shall be in the care of the
Petitioner’s Advocates.

B. LEGAL FOUNDATION OF THE PETITION

3. Articles 10(2)(b), 20 and 21(1) of the Constitution incorporate human rights

among the national values and principles of governance that are binding on all
persons, state officers, public officers and all persons

4. Articles 22, 23 and 165(3)(b) and 258 of the Constitution empowers every
person to institute a court proceedings in the High Court asserting that a right
or fundamental freedom in the Bill of Rights has been denied, violated or
infringed or is threatened. Further, Article 23(3) empowers the High Court to
offer various reliefs in respect of such proceedings including: a declaration of
rights, an injunction, a conservatory order, compensation and an order of
judicial review.

5. Article 27 of the Constitution guarantees the right to equal protection by the

law, equal benefits of the law and equal enjoyment of constitutional rights.

6. Article 28 of the Constitution decrees that every person has inherent dignity
and the right to have that dignity respected and protected.

7. Article 43 of the Constitution provides that every person has the right to socio-
economic rights including, inter alia, the right to Education.

8. Article 47 of the Constitution provides that every person has the right to
administrative action that is expeditious, efficient, lawful, reasonable and
procedurally fair. In particular, Article 47(2), requires that where a right or
fundamental freedom of a person has been or is likely to be adversely affected
by an administrative action, the person has the right to be given written reasons
for the action.

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9. Article 258 of the Constitution provides that every person has the right to
institute court proceedings, claiming that the Constitution has been
contravened or is threatened with contravention.

10. Article 259 of the Constitution offers guidance that the constitution should be
interpreted in a manner that promotes its purposes and values; advances the
rule of law and human rights and fundamental freedoms in the Bill of Rights;
permits the development of the law and contributes to good governance.

C. JURISDICTION

11. The present Petition seeks relief for violations of articles of the Constitution,
thus this Honourable Court is vested with jurisdiction by virtue of Article
165(3) (d) of the Constitution.

D. FACTS AND BACKGROUND OF THE PETITION

12. The Petitioner challenges the process, constitutionality and legality of his
expulsion from the Respondent University.

13. The Petitioner was a bona fide student of the Respondent at all material times
before the institution of this Petition and was enrolled to pursue Diploma in
Music Engineering.

14. Before the Institution of this petition, the Petitioner was in 4th year of his studies
in the Respondent’s University and was sitting for his 2nd last exam paper with
an aim and legitimate expectation of graduating and embarking in his long-
awaited career as a music producer.

15. On that very day of the exam, the petitioner religiously followed the exam
guidelines and regulations of the Respondent University by leaving his phone
and tablet outside the exam room. He made sure he did not have any material
that could amount to exam cheating against the Respondent’s Exam guidelines.

16. The Petitioner was suddenly directed by the invigilator manning the exam to
step out of the exam room without being informed of any reason. Later, the
invigilator informed the Petitioner that he was wearing smart watch and
termed it as electronic device and thus amounted to exam cheating.

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17. The Petitioner was flabbergasted with this information as the wearing smart
watch was not part of exam cheating as per the Respondent Exam Guidelines,
further, the alleged smart watch was fake and he wore it just to please the eye.

18. The petitioner tried to follow up his case with the Respondent at least to be
heard and to plead his case, but to his surprise he was informed that the
Respondent’s Disciplinary body had made an ex-parte decision (the decision)
to expel the Petitioner from the Respondent’s University.

19. The purported decision by the Respondent’s Disciplinary Body to expel the
Petitioner drove the Petitioner into an emotional and mental anguish as he was
staring at the eternal shutter of his long invested educational and career dream.

20. The Petitioner embarked on the journey to salvage his educational and career
dream by appealing the decision of expelling him from the Respondent
University at least to given the a right to be heard and plead his case.

21. The Respondent thwarted his bid to Appeal as he was told, “the decision was
final and there was nothing like appealing the decision” he was commanded to
“accept his fate.”

22. The Petitioner was never informed of the charge or offence he was being
expelled for, he was never given a chance to present his case, be heard, to
prosecute his case, and cross-examine the Respondent’s witnesses.

23. The instant Petition is anchored by the sworn affidavit of Mr. Shamdo that has
been filed herewith.

E. VIOLATION OF THE CONSTITUTIONAL PROVISIONS

24. The decision of Respondent to expel the Petitioner from the Petitioner’s
University violates and infringes his Constitutional right to economic and
social rights particularly the right to Education under Article 43 (f) of the
Constitution.

25. The Administrative decision of the Respondent to expel the Petitioner from the
Respondent’s University was unconstitutional, illegal and unfair contrary to
Article 47 of the Constitution and Fair Administration Act ,2015 that provide
that such administrative action to be taken expeditiously, efficiently, lawfully.

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26. The subject administrative action decision adversely affected the fundamental
freedom and right of the Petitioner which he ought to be given written reasons
for the action, but the Respondent blatantly disregarded this constitutional
requirement and expelled the Petitioner without any written reasons contrary
to Article 47 of the Constitution and Section 4(2) of Fair Administration
Act,2015.

27. The Petitioner was never given prior and adequate notice of the nature and
reasons for the proposed administrative action, an opportunity to be heard and
to make representations in that regard, notice of a right to a review or internal
appeal against an administrative decision, notice of the right to legal
representation, notice of the right to cross-examine the Respondent’s witnesses,
information, materials and evidence to be relied upon in making the decision
or taking the administrative action contrary to Fair Administration Act.

28. It is in the interest of justice, fairness, and good governance that this Petition be
allowed.
F. RELIEFS SOUGHT

REASONS WHEREFORE the Petitioners humbly seek and prays for the following
reliefs:

i. A declaration that the expulsion of the Petitioner from Respondent University

without considerations of due process and all the tenets of natural justice are
illegal, irregular and a violation of article 43 and 47 of the constitution,
therefore, null and void ab initio

ii. A declaration that the Respondent has contravened, denied, violated and
infringed upon the petitioner’s constitutional right to an administrative action
that is lawful, reasonable and procedurally fair guaranteed under Article 47(1)
of the Constitution

iii. A declaration that the Respondent has contravened, denied, violated and
infringed upon the petitioners right to education under article 43(f) of the
Constitution;

iv. Judicial Review order of certiorari do issue to quash Respondent’s decision that
expelled the Petitioner from the Respondent’s University and all or any other
decision that contributed to expulsion of the Petitioner;

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v. The Honourable Court do issue a Judicial Review order of mandamus to

compel the Respondent readmit the Petitioner finish the two remaining exams
and graduate with Diploma in Music Engineering in the immediate
forthcoming graduation;

vi. Judicial review order of prohibition restraining and/or prohibiting the

respondent by themselves, their agents, servants, employees or any other
person(s) acting on their instructions and/or direction from subjecting the
petitioner to victimization and or any further disciplinary action on the same
matter;

vii. An order do issue directing the respondent whether by its employees, servants
or agents or any of them or otherwise howsoever from discriminating or
victimizing the petitioner in any manner whatsoever following his
reinstatement and re-admission to the Respondent’s University.
viii. The respondent be condemned to pay damages in compensation for the
contravention of the petitioner’s constitutional rights, petitioner’s costs of and
incidental to this petition; and

ix. The court to make issue and give such further, other and consequential orders,
writs and directions as it may consider just, equitable, expedient and/ or
appropriate to grant.

DATED at NAIROBI this……...…………. day of……………………..2023

KRK Advocates LLP,
ADVOCATES FOR THE PETITIONERS

DRAWN AND FILED BY:

KRK Advocates LLP,

Britam Tower (7th Floor), Hospital Road, Upperhill
P. O. Box 6463 – 00100,
Nairobi.
Email address [email protected]

TO BE SERVED UPON

JITAHIDI UNIVESITY,
P .O Box 329 – 00100,
Nairobi.

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REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. …... OF 2023

IN THE MATTER OF: ARTICLES 2(1), 2(4),3(1),10, 22, 23, 258 AND 259 OF
THE CONSTITUTION OF

AND

IN THE MATTER OF: DENIAL OF RIGHTS, VIOLATIONS AND

INFRINGEMENT OF ARTICLES 27, 28, 42, 43(1)(f), 47
AND 258 OF THE CONSTITUTION OF KENYA
AND

IN THE MATTER OF: SECTIONS 3, 4, 5 AND 6 OF THE FAIR

ADMINISTRATIVE ACTIONS ACT
AND

IN THE MATTER OF: EXPULSION OF THE PETITIONER FROM

UNIVERSITY STUDIES AT JITAHIDI UNIVERSITY

BETWEEN
SHAMDO…………………....................................................................…… PETITIONER

VERSUS

JITAHIDI UNIVESITY ………………….……………………….……..RESPONDENT

SUPPORTING AFFIDAVIT

I, SHAMDO, a resident of Nairobi, in the Republic of Kenya and of P.O. Box 123-
00100, Nairobi do hereby make oath and state as follows:

1. THAT I am male adult of sound mind and conversant with the facts leading
to this Petition hence competent to swear this Affidavit.

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2. THAT I was a bona fide student at the Respondent’s University at all

material time where I enrolled to pursue Diploma in Music Engineering
before the institution of this Petition.

3. THAT prior to Institution of this petition, the I was in 4th year of my studies
in the Respondent’s University and I was sitting for my 2nd last exam paper
with an aim and legitimate expectation of graduating and embarking in my
long-awaited career as a music producer
4. THAT on that very day of the exam, I religiously followed the exam
guidelines and regulations of the Respondent University by leaving my
phone and tablet outside the exam room. I further made sure I did not have
any material that could amount to exam cheating against the Respondent’s
Exam guidelines.
5. THAT I was suddenly directed by the invigilator manning the exam to step
out of the exam room without being informed of any reason. Later, the
invigilator informed the me that I was wearing smart watch and termed it
as electronic device and thus amounted to exam cheating.

6. THAT the Petitioner was stunned by this information as wearing smart

watch was not part of exam cheating in the Respondent Examination
Guidelines, further the alleged smart watch was fake and I just wore it just
to please the eye.

7. THAT I tried to follow up my case with the Respondent at least to be heard

and plead my case, but to my surprise I was informed that the Respondent’s
Disciplinary body had made an ex-parte decision (the decision) to expel me
from the Respondent’s University.

8. THAT the purported decision by the Respondent’s Disciplinary Body to

expel me drove me into an emotional and mental anguish as I was staring
at the eternal shutter of my long invested educational and career dream.

9. THAT I embarked on the journey to salvage my educational and career

dream by appealing the decision of expelling me from the Respondent
University at least to given the a right to be heard and plead my case.

10. THAT the Respondent thwarted my bid to Appeal as I was told, “the
decision was final and there was nothing like appealing the decision” I was
commanded to “accept my fate” in oblivion.

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11. THAT I was never informed of the charge or offence I was being expelled
for, I was never given a chance to present my case, be heard, to prosecute
my case, and cross-examine the Respondent’s witnesses.

12. THAT I am have been advised by advocate on record the advice which I
believe that the subject administrative action decision by the Respondent
adversely affected my Constitutional fundamental freedom and rights. The
respondent ought to serve me with written reasons for the action but it
blatantly disregarded contrary to the Rules of Fair Hearing.
13. THAT in the disclosed circumstances, I verily believe that the I am entitled
to the prayers sought in the Petition herewith.

14. THAT further, I verily believe that it is fair, just and equitable that the
prayers sought in the Petition herewith be granted.

15. THAT I make this affidavit in support of the Petition herein from matters
within my own knowledge save for matters sworn on information and
belief, the sources and grounds whereof that are duly disclosed.

SWORN at NAIROBI by the said: }

SHAMDO }
On this ……… day of …………… 2023 }

Before me: } DEPONENT

}
COMMISSIONER FOR OATHS }

DRAWN AND FILED BY:

KRK Advocates LLP,
Britam Tower (7th Floor), Hospital Road, Upperhill
P. O. Box 6463 – 00100,
Nairobi.
Email address [email protected]

TO BE SERVED UPON
JITAHIDI UNIVESITY,
P .O Box 329 – 00100,
Nairobi.

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REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. …... OF 2023

IN THE MATTER OF: ARTICLES 2(1), 2(4),3(1),10, 22, 23, 258 AND 259 OF
THE CONSTITUTION OF KENYA
AND

IN THE MATTER OF: DENIAL OF RIGHTS, VIOLATIONS AND

INFRINGEMENT OF ARTICLES 27, 28, 42, 43(1)(f), 47
AND 258 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: SECTIONS 3, 4, 5 AND 6 OF THE FAIR

ADMINISTRATIVE ACTIONS ACT

AND

IN THE MATTER OF: EXPULSION OF THE PETITIONER FROM

UNIVERSITY STUDIES AT JITAHIDI UNIVERSITY

BETWEEN
SHAMDO……………..………....................................................................................……
PETITIONER

VERSUS

JITAHIDI UNIVESITY
………………..…………………………………………………………………………...
RESPONDENT

CERTIFICATE OF URGENCY

I, CALVIN WERE, an Advocate of the High Court of Kenya, practicing as such in the
Firm of KRK Advocates LLP, Britam Tower (7th Floor), Hospital Road, Upper Hill,
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P. O. Box 6463 – 00100, Nairobi, who has the conduct of this matter do hereby certify
this Application of utmost urgency for the reasons THAT:

1. The Respondent exercised Administrative Action decision that resulted in

expulsion of the Petitioner who was sitting for his 2nd Last University Paper at
the Respondent’s University.

2. The Petitioner is entitled to Constitutional right to Education under Article

43(f), in addition, the Petitioner has the right to equal protection and benefit of
the law.

3. Unless the Respondent’s Administrative decision resulting to expulsion of the

Petitioner from the Respondent’s University be quashed and Petitioner be re-
admitted to the Respondent University the Petitioner will suffer substantial
loss.

DATED at NAIROBI this………………...…………. day of……………………..2023

KRK Advocates LLP,

ADVOCATES FOR THE PETITIONERS

DRAWN AND FILED BY:

KRK Advocates LLP,
Britam Tower (7th Floor), Hospital Road, Upperhill
P. O. Box 6463 – 00100,
Nairobi.
Email address [email protected]

TO BE SERVED UPON
JITAHIDI UNIVESITY,
P .O Box 329 – 00100,
Nairobi.

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b) Pleadings: in reply generally

Defence
• Traverse – deny
• Confession and avoidance
• Objection on a point of law
• Further and better particulars
• Set off & counterclaim

REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAJIADO
ELC CASE NO E 24 OF 2024

SANKALE KANAI (Suing as the Legal Representative of the estate of

MANANGA OLE TEPES – DECEASED) – PLAINTIFF

VERSUS

WILLIAM MASHAMBA – DEFENDANT

MEMORANDUM OF APPEARANCE
(Order 6, CPR)

KINDLY ENTER APPEARANCE for the Defendant whose address of service for the
purpose of this suit shall be the care of M/S WAKILI SHARP & CO ADVOCATES,
PEARL PLACE, P.O. Box 123-11, NAIROBI.

DATED at NAIROBI this 8th day of June 2024.

WAKILI SHARP & CO

ADVOCATES FOR THE DEFENDANT

Drawn and filed by:

WAKILI SHARP & CO ADVOCATES,

PEARL PLACE,
P.O. Box 123-11, NAIROBI.
To be served upon:

SANKALE KANAI
P.O. Box 567
NAIROBI

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REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAJIADO
ELC CASE NO E 24 OF 2024

SANKALE KANAI (Suing as the Legal Representative of the estate of

MANANGA OLE TEPES – DECEASED) – PLAINTIFF

VERSUS

WILLIAM MASHAMBA – DEFENDANT

STATEMENT OF DEFENCE
(Order 7, CPR)

1. Save what is expressly admitted herein the Defendant denies all the allegations
set out in the plaint as if the same were set out herein verbatim and traversed
seriatim.
2. The Defendant admits the contents of paragraphs 1, 2, 3, 4 and 5 as they merely
describe the particulars of the parties save for the address of service for the
Defendant which shall be the care of M/S WAKILI SHARP & CO.
ADVOCATES, PEARL PLACE, P.O. Box 123-11, NAIROBI.
3. The Defendant denies the contents of paragraph 6 and 7 and contends that he
entered into a land sale agreement in 2016 where the deceased agreed to sell to
the defendant portions measuring 500 Ha and 400Ha respectively to be hived
from the original parcel of land.
4. The Defendant denies the allegations levelled against him in paragraph 8 and
9 of the plaint and contends that the process of transfer, registration and
subdivision of the suit properties was commenced by the deceased and not the
Defendant.
5. The allegations of fraud set out in the plaint are denied in toto and the Plaintiff
put to strict proof thereof.
6. The Defendant admits the contents of paragraphs 10 and 11 of the plaint.
7. WHEREFORE the Defendant prays that this Honourable Court dismisses the
Plaintiff’s suit with cost.

DATED at NAIROBI this 8th day of June 2024.

WAKILI SHARP & CO

ADVOCATES FOR THE DEFENDANT
Drawn and filed by:

WAKILI SHARP & CO ADVOCATES,

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2024

PEARL PLACE,
P.O. Box 123-11, NAIROBI.

To be served upon:

SANKALE KANAI
P.O. Box 567
NAIROBI

Defence and Counter-Claim

REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT NAIROBI
FAST TRACK CIVIL SUIT NO 10 OF 2020

ALL GRAINS LIMITED – PLAINTIFF

VERSUS

JACKSON BELLS – DEFENDANT

MEMORANDUM OF APPEARANCE
(Order 6, CPR)

KINDLY ENTER APPEARANCE for the Defendant whose address of service for the
purpose of this suit shall be the care of M/S HAPPY AND HAPPY ADVOCATES,
GLORY HOUSE, NAIROBI.

DATED at NAIROBI this x day of x 202x

HAPPY AND HAPPY ADVOCATES

ADVOCATES FOR THE DEFENDANT

Drawn and filed by:

HAPPY & HAPPY ADVOCATES

GLORY HOUSE

To be served upon:

GLORIA GRAIN
ALL GRAINS LIMITED

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2024

REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT NAIROBI
FAST TRACK CIVIL SUIT NO 10 OF 2020

ALL GRAINS LIMITED – PLAINTIFF

VERSUS

JACKSON BELLS – DEFENDANT

DEFENCE
(Order 7, CPR)

1. Save as herein admitted, the Defendant denies each and every allegation
contained in the Plaint as if the same were set out herein verbatim and traversed
seriatim.
2. The Defendant admits the descriptions of the parties set out in paragraphs 1
and 2 of the Plaint, save for his address of service for purposes of this suit which
shall be in the care of HAPPY & HAPPY ADVOCATES, Glory House, 1st Floor
P.O. Box 4567-00100 NAIROBI.
3. The Defendant admits Paragraph 3 of the Plaint to the extent that the Plaintiff
is the registered proprietor of LR No 22750.
4. The Defendant avers that LR 22751 belongs to Gloria Grain.
5. The Defendant denies trespassing as claimed by the Plaintiff in paragraph 3 but
contends that he has been residing on the two parcels of land since 2007 with
the knowledge of the Plaintiff but without their consent.
6. The Defendant denies Paragraph 4 of the Plaint and the Plaintiff is put to strict
proof thereof.
7. The Defendant denies the Plaintiff’s allegation in Paragraph 5 of the Plaint that
the Defendant hired youth with crude weapons to chase away the Plaintiff’s
agents. The Plaintiff is put to strict proof thereof.
8. The contents of Paragraph 6 of the Plaint are denied, and the Plaintiff is put to
strict proof thereof.
9. The Defendant contends that the Plaintiff did not serve him with any Demand
Notice as alleged in Paragraph 9.

REASONS WHEREOF the Defendant prays that the Plaintiff’s suit be dismissed with
costs.

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2024

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT NAIROBI

FAST TRACK CIVIL SUIT NO 10 OF 2020

JACKSON BELLS – PLAINTIFF

VERSUS

ALL GRAINS LIMITED – 1st DEFENDANT

GLORIA GRAIN LIMITED – 2ND DEFENDANT

COUNTERCLAIM
1. The Plaintiff is an adult of sound mind, residing at Nairobi and his address for
service shall be in the care of HAPPY & HAPPY ADVOCATES, P.O. Box 4567-
00100 NAIROBI.
2. The 1st Defendant is a limited liability company registered under the laws of
Kenya whose address for purposes of this suit is WAKILI MWEMA & CO
ADVOCATES, P.O. Box 78910-00200 NAIROBI.
3. The 2nd Defendant is a female adult of sound mind who resides and works for
gain in NAIROBI (Service of summons to be effected through the Plaintiff’s
advocates’ address)
4. The Defendants are the registered proprietors of LR 22750 and 22751
respectively.
5. The Plaintiff has been residing on the two parcels of land since 2007 with the
knowledge of the Defendants.
6. The Defendants, on or about March 2020, attempted to enter the Plaintiff’s
parcels of land.
7. The Defendants destroyed the Plaintiff's property valued at Kshs 300,000.

REASONS WHEREFORE the Plaintiff prays for the following reliefs:

1. That the defendants be ordered to pay him Kshs 300,000 for the damage on his
property and interest thereon.
2. Costs of this suit & interest
3. Any other reliefs the court may deem fit.

Dated at NAIROBI this 17th Day of June 2021.

(SIGN)

HAPPY AND HAPPY ADVOCATES

ADVOCATES FOR THE PLAINTIFF

Drawn and filed by:

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HAPPY & HAPPY ADVOCATES

GLORY HOUSE

To be served upon:

GLORIA GRAIN

ALL GRAINS LIMITED

REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT NAIROBI
FAST TRACK CIVIL SUIT NO 10 OF 2020

ALL GRAINS LIMITED – PLAINTIFF

VERSUS
JACKSON BELLS – DEFENDANT

VERIFYING AFFIDAVIT
I, JACKSON BELLS of P.O. Box 12345 NAIROBI, a resident of NAIROBI, Kenya do
hereby state and swear as follows:

1. THAT I am the Defendant hence competent to swear this affidavit

2. THAT I have read the contents of the Plaint and verify the same to be true to
the best of my knowledge and information.
3. THAT what is deponed here is true to the best of my knowledge.

Sworn by the said )

JACKSON BELLS )

At Nairobi on this 17th day of June 2021 ) DEPONENT

Before me )

COMMISSIONER FOR OATHS )

Drawn and filed by:

HAPPY & HAPPY ADVOCATES
GLORY HOUSE

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To be served upon:

GLORIA GRAIN
ALL GRAINS LIMITED

DEFENDANT’S LIST OF WITNESSES

(Under Order 7(5)(b) Civil Procedure Rules 2010)

The Defendant shall at the trial call the following witness in support of their case:

1. Jackson Bell

DEFENDANT’S LIST OF DOCUMENTS

(Under Order 7(5)(d) Civil Procedure Rules 2010)

The Defendant shall at the trial produce the following documents in support of their
case:

1. Title deed to LR 22751 showing Gloria Grain as the registered proprietor of said
land.
2. Demand letter dated 7th March 2020.

(SIGN)

HAPPY AND HAPPY ADVOCATES

ADVOCATES FOR THE DEFENDANT

Drawn and filed by:

HAPPY & HAPPY ADVOCATES

GLORY HOUSE

To be served upon:

GLORIA GRAIN
ALL GRAINS LIMITED

c) Service of process
Order 5

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d) Amendment and close of Pleadings

Amendment of pleadings

Order 8, Rule 1 CPR 2010 – party may without leave of court amend any of his
pleadings once at any time before the close of pleadings.

Once pleadings close, party may amend with leave of court.

Purpose of amendment:

• Correct defects
• Focus on real issues
• When other party files a notice of intention to raise a preliminary objection
• When court seeks clarification

In the case of Michael Richardson v. Rand Blair, the High Court of Uganda held that
amendments should be freely allowed unless it is done mala fide and/or occasions
prejudice or injustice to the other party which cannot be compensated by award of
costs.

Procedure for amendment of pleadings

S 100, CPA and Order 8, CPR 2010

• Application made through notice of motion supported by affidavit.

• Party attaches proposed draft plaint where words which are to be deleted are
crossed and the ones to be added are underlined.
• Defendant files a replying affidavit to the application.
• Court will analyse the application and the replying affidavit and in making a
ruling, consider the following factors:
✓ Amendment to the correct name will normally be allowed.
✓ Whether the proposed amendment will occasion injustice or prejudice.
✓ Whether it corrects any defect or error or determining a real question in
controversy.

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7. Interlocutory applications

a) Role of applications
Interlocutory reliefs before Order 11

Types of interim orders

Orders for a An order for commission is a court order appointing a third

commission party, known as a commissioner, to undertake specific tasks on
(O 28) behalf of the court to assist in gathering or verifying evidence.

An order for a commission is interim and it is within a pending

suit and the application is therefore by way of Chamber
Summons.
You can apply for an order for a commission for various
reasons:
• Examination of witnesses
• To make a local investigations;
• To examine accounts;
• To make up partitions;
• To hold a scientific investigation.

Arrest before Generally, the rule is that a creditor having a claim against the
judgment debtor has first to obtain a decree before they can execute
(O 39) against the debtor.

But there are other special circumstances one may be able to

apply for arrest of the person before judgment.

For instance, if a person is planning to leave the jurisdiction of

the court with the intent to abscond liability and defeat justice.

Attachment This is where the defendant is disposing of their property so

before that they can defeat the realisation of a court decree where one
judgment would been awarded.

The court can order for the property to be attached if there is

real danger of trying to circumvent justice.

Temporary An auxiliary relief whereby a party is required to do or to

injunctions refrain from doing any particular act.
Conditions:
• Prima facie case
• Irreparable harm
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• Balance of convenience
Appointment of
receivers
Security for Money paid into court of which an unsuccessful plaintiff will be
costs able to satisfy any eventual award of costs made against him.

Interlocutory reliefs at Order 11

An injunction is an order of the court directing a party to the proceedings to do or to

refrain from doing a specific act.

It is granted in cases where monetary relief would afford an inadequate remedy to an

injured party.

Court may grant a temporary injunction under Order 40, Rule 1 where:

• any property in dispute in a suit is in danger of being wasted, damaged, or

alienated by any party to the suit, or wrongfully sold in execution of a decree;
• the defendant threatens or intends to remove or dispose of their property with
a view to defraud their creditors.

Principles on interlocutory injunctions

American Cyanamid v. Ethicon Limited

• Whether there is a serious issue to be tried

• Whether damages are an adequate remedy
• The “balance of convenience”
• Any special factors

Giella v Cassman Brown

• Prima facie case

• Irreparable harm
• Balance of convenience

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b) Types of applications

Applications under Order 40

Order 40, CPR 2010

Application is by notice of motion supported by affidavit. Court can hear ex parte.

Principles per Giella v Cassman Brown:

• Prima facie case

• Irreparable harm
• Balance of convenience

Anton Pillar Orders

An Anton Pillar Order is a mandatory injunction, which orders a defendant to allow

an independent attorney to enter the defendant’s premises for the purposes of
searching and seizing documents, or property that are relevant to the plaintiff’s claim.

An essential feature is its element of surprise; the order is sought ex parte so that the
defendant will not have time to remove incriminating material.

Requirements

• Extremely strong prima facie case;

• The plaintiff must show that the defendant’s acts are causing serious actual or
potential harm/damage to the plaintiff’s interests;
• There must be clear evidence that the defendant has in his possession –
incriminating evidence or other material and that;
• There is a serious risk that the defendant may destroy such material before an inter
partes application can be made

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Sample Injunction
THE REPUBLIC OF KENYA
IN THE ENVIRONMENTAL LAND COURT DIVISION
AT MOMBASA
ELC NO. 345 OF 2016

EDWIN NJOROGE …………………………………………APPLICANT

VERSUS

STANLEY OTIENO ……………………………1st RESPONDENT

LINCOLN KAMAU ………………………………. 2nd RESPONDENT

NOTICE OF MOTION
(Under Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya and Order 40, Rules 1,
2, 3, 4 and 10 of the Civil Procedure Rules, 2010)

TAKE NOTICE that this Honourable Court shall be moved on the ………….day of
…………………..2017 at 9.00 O’CLOCK in the forenoon or soon thereafter as the
counsel for the applicant may be heard for ORDERS THAT:

1. This application be certified as extremely urgent, and service be dispensed with

in the first instance.

2. Pending the hearing and determination of this suit, the Respondents be

restrained from interfering, selling, alienating and undertaking constructions
on the parcel of land known as MN/11/2333.

3. The costs of this application be borne by the Respondents.

WHICH APPLICATION is premised on the GROUNDS THAT:

a) The plaintiff is the legal owner of all that parcel of land known as title number
MN/11/2333.

b) Despite the suit property being the subject of an ownership dispute in a matter
presently before another court of competent jurisdiction, the 1st Respondent
herewith has disposed of the said suit property, irregularly.

c) The 2nd Respondent who is the irregular purchaser of the property, has
proceeded to undertake construction upon the suit property.

d) Unless restrained, the 2nd Respondent will continue to erect permanent

structures upon the suit property which will visit upon the Plaintiff/Applicant

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untold irreparable loss and damages and a likelihood of the breach of peace in
the area.

WHICH APPLICATION is further supported by the annexed Affidavits sworn by

EDWIN NJOROGE, and on such other or further grounds as may be adduced at the
hearing hereof.

DATED AT MOMBASA THIS …………………………..DAY OF ………………2017.

ARINGA MWANIKI & CO ADVOCATES

ADVOCATES FOR THE PLAINTIFF/ APPLICANT

DRAWN & FILED BY ;

ARINGA MWANIKI &CO ADVOCATES

KHALID SHEIKH BUILDING , 3RD FLOOR
P.O BOX 410-80100
MOMBASA
TO BE SERVED UPON

LINCOLN KAMAU

MOMBASA

STANLEY OTIENO

MOMBASA

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THE REPUBLIC OF KENYA

IN THE ENVIRONMENTAL LAND COURT DIVISION

AT MOMBASA

ELC NO. 345 OF 2016

EDWIN NJOROGE …………………………………………PLAINTIFF/APPLICANT

VERSUS

STANLEY OTIENO …………………………………1st DEFENDANT/RESPONDENT

LINCOLN KAMAU ………………………………. 2nd DEFENDANT/RESPONDENT

SUPPORTING AFFIDAVIT
I, EDWIN NJOROGE, a resident of Mariakani in Mombasa County P. O. Box Number
410-80100 do hereby make and state as follows:

1. THAT I am an adult of sound mind, the Plaintiff, herein hence competent to

swear this affidavit.

2. THAT I am the legal and registered owner of all that parcel of land known as
MN/11/2333 (hereinafter referred to as the “suit property”).

3. THAT sometime in 2015 the 1st Respondent invaded the suit property without
my consent or authority, purported to claim ownership.

4. THAT being the legal owner, I approached this Honourable Court vide a suit
and the matter is still pending hearing and determination. (Attached herewith
and marked “EN -1” is a true copy of the plaint filed with the court)

5. THAT the 1st Respondent further went ahead and irregularly sold the suit
property to the 2nd Respondent in circumstances that suggest fraud.

6. THAT I had placed a caveat on the suit property and therefore no transaction
could be carried out on it. (Attached herewith and marked “EN -2” is a true
copy of the caveat notice filed served upon the land registry and advertised
through two well-circulated daily newspapers)

7. THAT despite knowledge of the proceedings in court, the 2nd Respondent has
continued to interfere with the suit property herein where he has commenced
construction. (Attached and marked “EN - 3” are true copies of photographs
depicting the said construction, now underway)

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8. THAT despite my complaints and various warnings from the local chief the 2nd
Respondent has failed to heed, ignored and resisted any notices to halt the
offending construction upon the suit property and has instead proceeded with
the same. (Attached and marked “EN - 4” are true copies of notices served on
various days upon the 2nd Defendant/Respondent)

9. THAT unless this Honourable court intervenes and issues appropriate orders,
I stand to suffer irreparable loss and damages.

10. THAT what is deponed herein above is true to the best of my knowledge and
information.

SWORN at MOMBASA by the said )

EDWIN NJOROGE )…………

THIS day of 2017 )

BEFORE ME )

COMMISSIONER FOR OATHS )

DRAWN & FILED BY:

ARINGA MWANIKI &CO ADVOCATES

KHALID SHEIKH BUILDING, 3RD FLOOR
P.O BOX 410-80100
MOMBASA.

TO BE SERVED UPON;
LINCOLN KAMAU
MOMBASA
STANELY OTIENO
MOMBASA

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Application under 39 – Mareva

Mareva Injunction
This is an injunction to restrain the respondent from removing property from the
jurisdiction of the court. Seeks the freezing of assets if the defendant may want to
dispose of or waste them before end of trial to defeat any decree that may be given
against him or her.

Order 39 allows the applicant to go to court to ask for the arrest of the defendant or
the attachment of the property to preserve the property pending trial.

Application is by way of notice of motion and supporting affidavit.

Conditions for grant of Mareva Injunction – Order 39

• Court has jurisdiction over the claim

• Have a cause of action
• Have a good arguable case;
• Have assets within jurisdiction
• There is real risk that the defendant may dispose of or dissipate those assets before
assets can be enforced.
• There is a real risk that if the injunction is not granted, the defendant will be
unwilling or unable to satisfy the plaintiff’s claim.
• Balance of convenience is in favour of granting the injunction.

Principles for granting the injunction

In Giella vs. Cassman Brown (1973) EALR, the court laid out the applicant should satisfy
the court that he:

• Has a prima facie case with probability of success

• The applicant will suffer irreparable loss or harm if not granted the orders.
• Where in doubt, the application shall be determined on a balance of
convenience.

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Sample - Mareva
REPUBLIC OF KENYA
IN THE MAGISTRATES COURT AT NAIROBI
CIVIL CASE X OF 2023

FUMO LIYONGO – PLAINTIFF

KYADUNDU SSEMPEBWA – DEFENDANT

NOTICE OF MOTION
(Under Order 51, Rule 1; Order 40 and Order 39; Rules 5 & 6 of Civil Procedure Rules)

TAKE NOTICE that this Court will be moved on the _ day of _ 2023 at 9 O’clock in
the forenoon or soon thereafter so as Counsel for the Applicant may be heard on an
application for ORDERS THAT:

1. The application be certified urgent

2. The motor vehicle UBA 007M remains within the boundaries of the Republic of
Kenya.

3. The Honourable Court grants Mareva Injunction orders.

WHICH APPLICATION is based on grounds THAT:

a) The execution of the decree will not be satisfied unless the motor vehicle UBA
007M remains within the boundaries of the Republic of Kenya.

b) The Applicant has an arguable case with high degree of success.

c) There is a high likelihood of the motor vehicle being taken out of the
jurisdiction of Kenya.

WHICH APPLICATION is further supported by an affidavit of FUMO LIYONGO

annexed to this application.

DATED at NAIROBI this 23rd Day of March 2023.

KENTIENO

ONYALA BIOSI AND COMPANY ADVOCATES

Drawn and filed by:

ONYALA BIOSI AND COMPANY ADVOCATES

Ground Floor, Shule ya Sheria Plaza

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Langata South Road, Nairobi

To be served upon:

KYADUNDU SSEMPEBWA
P.O. Box 35, JINJA

REPUBLIC OF KENYA
IN THE MAGISTRATES COURT AT NAIROBI
CIVIL CASE X OF 2023

FUMO LIYONGO – PLAINTIFF

KYADUNDU SSEMPEBWA – DEFENDANT

SUPPORTING AFFIDAVIT
I, Fumo Liyongo, of P.O. Box 69 Kangemi, in the Republic of Kenya, do hereby make
oath and state as follows:

1. THAT the exhibit motor vehicle of the Defendant/Respondent has been at the
Westlands Police Station and will be released 14 days from the date of judgment
to the Defendant.

2. THAT since the Defendant will be driving back to Uganda, the compensation
awarded may not be realizable for execution unless the motor vehicle remains
within the boundaries of the Republic of Kenya.

3. THAT it is in the interest of justice that the Honourable Court grants the
Mareva Injunction requiring the motor vehicle to remain in Kenya.

4. THAT the Applicant has an arguable case with a high chance of success.

5. THAT what is deponed herein is true to the best of my knowledge, information

and belief.

DATED at NAIROBI this 22nd Day of March 2023

SWORN by the said )

FUMO LIYONGO )

At NAIROBI ) DEPONENT

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This 23rd Day of March 2023 )

COMMISSIONER FOR OATHS )

Drawn and filed by:

ONYALA BIOSI AND COMPANY ADVOCATES

Ground Floor, Shule ya Sheria Plaza

Langata South Road, Nairobi

To be served upon:

KYADUNDU SSEMPEBWA

P.O. Box 35, JINJA

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Interpleader proceedings
Section 58, Civil Procedure Act – Interpleader proceedings occur in situations a third
party (interpleader) is in custody of a property claimed by two or more claimants. The
third party will then move to court to determine the true owner of the property.

O 34, R 1 – Application is by:

• originating summons (if no suit in place);
• if there’s an ongoing suit, the application is by chamber summons.

O 34 R 2 – Averments to be proved by interpleader

• Neutral – has no interest whatsoever in the property except for his charges or costs.
• That there is no collusion between him/her and any of the claimants.
• That he will be willing to surrender/deliver the subject matter to the court.

Discovery and inspection

Discovery
Formal process of investigation in litigation. Provided for in S 22, Civil Procedure Act.
Purpose is to compel the opposite party to disclose what he has in his possession or
power.

There are two types of discovery:

• Discovery of facts – by way of interrogatories (know nature of opponent case,
elicit facts that support your own case).
• Discovery of documents – disclosure on oath of all material documents in the
possession of the opposite party.

Main forms of discovery:

• Depositions (affidavits)
• Interrogatories
• Request to produce
• Request to admit
• Independent medical examinations
• Site visits

Grounds one can object interrogatories

The submission of interrogatories for discovery purpose is the process of formal

written questions to the opposing party by which the opposing party is required to
answer in a specified time period
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Interrogatories that may be objected:

• If an opposing party asks questions on documents – interrogatories relate to

discovery on matters of facts.
• Grounds of privilege.
• Interrogatories must be relevant to the matters in issue – a question that is
irrelevant may be dismissed.
• Scandalous interrogatory is not allowed.
• The questions asked must not be a fishing expedition – they must refer to
some definite and existing state of circumstances.
• Not allowed as to the contents of written documents.
• Admission of facts from a witness.

Disposal of suits by summary procedure

Termination of suits without trial
• Summary judgment
• Default judgment
• Striking out of pleadings
• Abatement of suit – death of parties (operation of law)
• Settlement and compromise – order 11
• Withdrawal of suits – consent, discontinuation.
• Striking out for want of prosecution
• Judgment on admission

Striking out of suits

Striking out of pleadings

Order 2, Rule 15 CPR 2010

Grounds

• No reasonable cause of action – not supported by any law.

• Scandalous, frivolous, vexatious – indecent, offensive, bad faith, no foundation.
• Prejudice, embarrass or delay fair trial.
• Abuse of court process.

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Summary procedure
Default judgment & how to set aside
Order 10
Made when:
• the defence fails to enter appearance;
• fail to file a defence within 14 days of service of summons to enter appearance;
or
• when the plaintiff fails to appear for determination of the suit.

May be set aside on just grounds under Order 10, Rule 11 Civil Procedure Rules 2010.
Done through notice of motion & supporting affidavit.

Ground for application to set aside:

• Default judgment had been obtained illegally/irregularly.
• The defendant shows there are triable issues.
• Summons were never served.
• The setting aside of judgment will not prejudice the Plaintiff’s interest.

Principles governing judicial discretion to set aside default judgment:

• Based on such terms as may be just

• Avoid injustice or hardship

If the application is allowed, the magistrate/judge would ask the Plaintiff to serve the
summons again properly and/or allow the defendant more time to enter appearance
and file defence.

Delay

A defendant who wishes to apply to set aside a default judgment should act
reasonably and promptly. If there is delay in making the application he should explain
in his affidavit the reasons of such delay, and the court in its discretion may reject the
application

Some of the reasons that have been accepted for delay are:

• A mistake by an advocate, though negligent.

• Ignorance of procedure by an unrepresented defendant.
• Illness by a party.
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However, failure to instruct an advocate is not sufficient cause to justify delay.

Nonetheless, the court still has discretion to set aside judgment even though there has
been delay so long as it satisfies itself with regard that:

• No one has been prejudiced by the defendant’s tardiness; or

• That such prejudice as has been sustained, can be cured by an appropriate order
for costs; or
• To allow the judgment to stand would be oppressive.
A judgment that has been irregularly obtained should generally be set aside as of right
(ex debitio justitiae) without terms.

Summary Judgment
Order 36, Civil Procedure Rules

Done through notice of motion & supporting affidavit. It is for very straightforward
cases – entered appearance but no defence. It may be obtained in instances such as:

• Where the relief sought by the Plaintiff is for a debt or a liquidated claim;
• Where the claim is for recovery of land with or without a claim for rent and
profits.
ICDC v Daber Enterprises Ltd – purpose of summary judgment is to enable the plaintiff
to obtain a judgment without unnecessary delays when the defendant has no
legitimate defence.

Requirements for application

• Plaintiff must serve an endorsed plaint and supporting affidavit to the

defendant.
• The affidavit must verify the facts of the claim and state that there is no defence.
• Notice of application must be given to the defendant.

Options for the court

Upon an application for summary judgment, the court can:

• Dismiss the application.

• Give judgment for the Plaintiff – if there are no triable issues.
• Grant the defendant leave to defend the suit conditionally or unconditionally –
there are some triable issues.
• Judgment on part claim – if defence on applies to part claim.

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• Where there are two or more defendants in a claim and it appears to court that
one has a good defence, but the other doesn’t, court shall enter summary
judgment against the defendant without a good defence.

Defence

The defendant who seeks to oppose an application summary judgment will have to
do so in one of the following ways:
• on a preliminary technicality,
• by showing that there is a clear defence,
• by showing that there is a serious issue of fact to be tried,
• by showing that there is an arguable point of law,
• (in certain circumstances) by raising a prima facie set-off or counterclaim, or
• by showing the court that for some other reason there ought to be a trial.

Where court is satisfied upon application, it may grant conditional or unconditional

leave to defend.

Consent judgment/judgment on admission

An agreement between parties that is formalized in a written document and submitted
to the court following a mutual agreement.

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8. Pre-trial process

a) Role
Pre-trial procedure is a conference between opposing counsel, conducted under the
supervision and guidance of the court, for the purpose of:

• Crystallizing issues;
• Eliminating matters that are not in controversy; and
• Stipulating as many facts as can be agreed upon.

b) Case Conferencing
Order 11, Rule 3(1)

The purpose of a case management conference shall be to—

• promote the expeditious disposal of cases;

• afford the parties an opportunity to use alternative dispute resolution mechanisms
to determine the case;
• afford the parties an opportunity to settle the case;
• determine any other matter relating to the management, hearing or disposal of the
case;
• deal with pre-trial applications at first instance or
• formulate a timetable to deal with them as the court may deem fit; and
• identify the issues for determination.

c) Pre-trial directions
Essential preparation which advocate should make in readiness for trial

• Preparation of list of witnesses, filing and serving them.

• Preparation of witness statement, filing and serving them.
• Preparation of list of documents, filing and serving them.
• Preparing witnesses for trial.
• Studying and understanding provided docs.
• Discovery – gathering of evidence & information to be presented in court.
• Interrogatories – requests for further info from other litigant
• Dealing with interlocutory applications

d) Suits exempted from pre-trial

Small claims matters

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e) Framing of issues
Order 15, R 1

• Issues arise when a material proposition of fact or law is affirmed by the one
party and denied by the other.
• Issues are of two kinds—(a)issues of fact; and(b)issues of law.
• Material propositions are those propositions of law or fact which a plaintiff
must allege in order to show a right to sue, or a defendant must allege in order
to constitute a defence.
• Each material proposition affirmed by one party and denied by the other shall
form the subject of a distinct issue.

Order 15, R 2

The court may frame the issues from all or any of the following materials—

• allegations made on oath by the parties, or by any persons present on their

behalf, or made by the advocates of such parties;
• allegations made in the pleading or in answers to interrogatories delivered in
the suit;
• the contents of documents produced by either party.

9. Hearing of suits

a) Attendance at court
When neither party attends, the court may dismiss the suit (r.1)

When only the plaintiff attends –

(a) if notice of hearing was duly served, it may proceed ex parte
(b) if that notice of hearing was not duly served, it shall direct a second notice to
be served, or
(c) if notice was not served within sufficient time or for sufficient reason the
defendant was unable to attend, it may postpone hearing (r.2)

b) Order of proceedings
Trial process

• Found in Evidence Act & Civil Procedure Act

• Order 11 – pretrial directions & conference
• Hearing date is set
• Opening statement – plaintiff begins unless PO was raised
• Examination of witnesses – exam-in-chief, cross-exam, re-exam
• Closing speech

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• Judgment date fixed; pronounced

c) Examination of witnesses

Exam-in-chief
S 145, Evidence Act. Questioning of witness by party who called him. Process of
adducing evidence in a court of law.

Questions permissible

• Not to ask leading questions – S 150(1), Evidence Act

• Ask all material questions in the first instance
• Questions that give a story
• Questions which can make a witness give evidence of facts within his
knowledge and recollection
• Questions based on a point of fact and not a point of law

Cross-exam
Examination of a witness who has already testified by the adverse party.
Used to check/discredit the witness’s testimony, knowledge or credibility.

Questions permissible
• Leading questions – S 151 Evidence Act
• As to previous statements made by him in writing or reduced into writing – S
153, Evidence Act
• Questions which tend to test his accuracy, veracity or credibility – S 154(a),
Evidence Act
• Questions that seek to shake his credit – S 154(c), Evidence Act

Re-examination
• S 145(3) EA – where a witness has been cross-examined and is then examined
by the party who called him. Meant to retrieve/salvage case.
• S 145(3) – re-exam directed to matters referred to in cross-examination.
• S 146 – order & direction of examinations.

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d) Making submissions

REPUBLIC OF KENYA
IN THE HIGH COURT AT KAJIADO
ENVIRONMENT AND LAND COURT
ELCC 45 OF 2009

PETER HAPPINESS ……………………………..………………………..APPELLANT

VERSUS

JOHN HOPKIN………………………………………………………..RESPONDENT

APPLICANT’S WRITTEN SUBMISSIONS

May it please the Honourable Court,

The Appellant makes these humble submissions, being in support of the Application
dated 19th July 2010:

A. INTRODUCTION AND BACKGROUND

The Appellant disputes the decision of the Tribunal regarding the land dispute with
the Respondent.

B. ISSUES
i. Whether the Kajiado Land Disputes Tribunal has jurisdiction over the dispute
ii. Whether the Tribunal acted ultra vires in rendering the decision
iii. Whether the orders for certiorari can be issued in the circumstances
iv. Whether the High Court has jurisdiction to grant the sought orders

C. LAWS APPLICABLE

CoK 2010 – Articles 47, 162, 165

Land Act
Land Registration Act
Environment and Land Court Act
Law Reforms Act
Fair Administrative Action Act
Civil Procedure Act
Civil Procedure Rules

D. ANALYSIS
i. Whether the Kajiado Land Disputes Tribunal has jurisdiction over the dispute
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The Environment and Land Court, established under Article 162(2)(b) of the
Constitution of Kenya 2010, has jurisdiction over land disputes per Section 13 of the
Environment and Land Court Act. The Tribunal thus lacked jurisdiction.

ii. Whether the Tribunal acted ultra vires in rendering the decision

The Tribunal rendered a decision beyond its jurisdiction. It further gave orders to
quash proceedings; which is beyond its powers and jurisdiction.

iii. Whether the orders for certiorari can be issued in the circumstances

The orders of certiorari are in the nature of Judicial Review and can only be issued by
the High Court per Sections 8 & 9, Law Reforms Act; backed by Order 53 of the Civil
Procedure Rules.

iv. Whether the High Court has jurisdiction to grant the sought orders

The High Court is clothed with requisite jurisdiction to grant orders of Judicial Review
per Art 165 and Art 23(3)(f) of the Constitution of Kenya 2010.

E. CONCLUSION

The Appellant hereby thus humbly prays that this Honourable court grants orders
that the decision of the Kajiado Land Dispute Tribunal be set aside on the above-stated
grounds.

We pray that the orders sought be granted by this Honourable Court.

DATED AT NAIROBI THIS DAY OF 2024

…………………………………………………

KENTIENO ADVOCATES LLP

ADVOCATES FOR THE PLAINTIFF/APPLICANT

DRAWN & FILED BY: -

KENTIENO ADVOCATES LLP

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P.O. Box 345

6th Floor, Mercedes Towers
NAIROBI

TO BE SERVED UPON:
M/S MATTI & CO. LLP
P.O BOX 22244
NAIROBI

e)Withdrawals, discontinuance and adjustment of suits

Setting aside judgment or dismissal

Circumstances under which a suit may be dismissed before trial include:

• No-show by both parties

• Dismissal for want of prosecution under Order 17 in a suit where no step
has been taken for the period of one year;
• Dismissal for failure to give security for costs under Order 26;
• Failure to collect Summons or having failed to serve the Summons, the suit
then abates (Order 5);
• Withdrawal/discontinuance and adjustment of the suit by the plaintiff;
• Out-of-court settlements; or
• Other preliminary objections.

Doctrine of res judicata

S 7, Civil Procedure Act

No court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them can claim, litigating
under the same title, in a court competent to try such subsequent suit or the suit in
which such issue has been subsequently raised, and has been heard and finally
decided by such court.

Elements for the bar of res judicata; rendered conjunctive:

• Same issue – the suit is/has been directly and substantially in issue in the
former suit.
• Same parties – that former suit was between the same parties or parties under
whom they or any of them claim.
• Same title – those parties were litigating under the same title.

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• Heard and determined – the issue was heard and finally determined in the
former suit.
• Competent court – the court that formerly heard and determined the issue was
competent to try the subsequent suit or the suit in which the issue is raised.

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10. Rulings, orders, judgments and decrees

a) Writing and delivery of Rulings and Judgement

Sample 1
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC NO 33 OF 2018

BILLY ESTATE LTD – APPLICANT

TIMBER – RESPONDENT

RULING

Background

The Applicant filed a Notice of Motion dated 10th July 2018, seeking orders restraining
the Defendant from closing an access road passing through Timber/Timber/70, which
is the property of the Respondent.
The access road has been open since 2013 and now threatens to be closed.
The Respondent contends that the estate is not landlocked.
Negotiations between the parties have failed.

Issues

1. Whether the estate is landlocked

2. Whether the owners of Billy Estate are entitled to continue using the access
road
3. Whether the respondent can lawfully close the access road

Applicable Laws

Land Act 2012

Land Registration Act
Wayleaves Act

Analysis

1. Whether the estate is landlocked

This being an allegation raised by the respondent in the negative; it ought to be

examined to affirm if the applicants are entitled to right of way. The access road
blocked by the said private developers should be examined and this can only be done

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upon receipt of maps and reports by the surveyor. To this extent, the case requires
further information to be furnished.

2. Whether the owners of Billy Estate are entitled to continue using the access
road

The owners began using it in 2013, and the question would be whether they have a
crystallised right to keep using it in light of the time that has lapsed since.

3. Whether the respondent can lawfully close the access road

The question would be whether a proprietor’s right to close an access road is limited.

Determination

Based on the foregoing, it is apparent that the case raises certain issues which ought
to be examined before a final decision can be made.

It is hereby ruled that the case has merits and parties are hereby directed to file and
serve their submissions.

Dated and delivered this day of 17th June 2021.

SIGN

HAKIMU

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Sample 2
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
MISC CIVIL APPLICATION NO 21 OF 2021

BOMOMA INVESTMENT LTD – APPLICANT

VERSUS

KILIMO BANK LTD – RESPONDENT

RULING

BACKGROUND

1. The Applicant herein namely Bomoma Investment Ltd filed a notice of motion
application on 15th February 2021 against the Respondent, Kilimo Bank Ltd
2. The Applicant sought orders:
a) Compelling the Respondent to submit to the Applicant inspection of
records in relation to Bank Account 1234567
b) Prohibitory orders to freeze all monies held in the Bank Account 1234567
until determination of this suit.
c) Costs be borne by the Respondent
3. The Applicant avers that the Applicant’s tenants have been making payment to
the aforementioned bank account, on account which the Applicant is unaware.
Further, the Applicant suspects fraud by the Applicant’s former employees.
4. The Applicant has previously requested information on the suspect account
which request was declined on the grounds that the information sought was
confidential.
5. The Respondent, on his part, opposed the application in a Replying Affidavit
dated 25th February 2021. The Respondent contends that he is bound to uphold
the principle of customer confidentiality and cannot disclose customer
information to a third party.

ISSUES

I. Whether the application has merit.

II. Whether the Respondent can be compelled to submit to the Applicant
Inspection and records relating to Bank Account 1234567

LAWS APPLICABLE

Banking Act
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Consumer Protection Act

Constitution of Kenya 2010

ANALYSIS

6. The Respondent herein has a right to protect the privacy of its customers subject
to the provisions of the Constitution of Kenya and the Consumer Protection
Act. The Applicant has not given reasonable and adequate factual information
to compel this court to issue the orders sought.
7. The Applicant has not demonstrated at which point they discovered that the
tenants have been making payment in Bank Account 123456 and further, which
employees they suspect of committing the fraud.

CONCLUSION

8. Subject to the foregoing, I make the following orders:

(i) THAT the application be dismissed
(ii) THAT each party bears its own costs.

DELIVERED and SIGNED this 17th November 2021.

SIGN

JUDGE

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b) Contents of a Ruling and Judgement

Sample Ruling
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAJIADO
ENVIRONMENT AND LAND COURT
ELCC X/2023

PETER DOE (filing as legal representative for the estate of JOHN DOE) –
APPLICANT/CLAIMANT

versus

DAVID MUNGALA – RESPONDENT/DEFENDANT

RULING

A. FACTS/BACKGROUND
The Respondent filed a suit against John Doe claiming adverse possession over all that
parcel of land known as Ngong/Ngong Block 1/47577. John Doe passed on in June
2020 without having transferred the parcel of land.

The Applicant filed a suit against the Respondent seeking to have him evicted from
the suit land. The Respondent has filed a preliminary objection on the propriety of the
suit.

B. ISSUES

i. Whether this court has jurisdiction over this matter

ii. Whether the Respondent has claim over the suit property.
iii. Whether the Applicant has a cause of action.
iv. Whether the application for a preliminary objection has merit.

C. LAWS APPLICABLE
Law of Succession Act
Land Act
Land Registration Act
Environment and Land Court Act
Limitation of Actions Act
Civil Procedure Act
Civil Procedure Rules

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D. ANALYSIS
i. Whether this court has jurisdiction over this matter
Section 13 of the Environment and Land Court Act, established under Art 162(2)(b) of
the Constitution of Kenya (2010), grants the Environment and Land Court original and
appellate jurisdiction over environment and land disputes.

This Court is thus properly clothed with jurisdiction per Lilian S v Caltex Oil and SK
Macharia v KCB.

ii. Whether the Respondent has claim over the suit property.
Section 38 of the Limitation of Actions Act provides that a person who has been in
continuous, uninterrupted possession of land for 12 years or more, without the
permission of the owner, can apply to be registered as the owner of that land.

The person must apply to the High Court for a declaration that they have acquired
ownership through adverse possession; subsequently registered per Section 37 and 41
of the Land Registration Act.

The Respondent did not have his interest in the suit property registered thus lacks
claim.

iii. Whether the Applicant has a cause of action.

The Applicant is the eldest son to the deceased. He has applied for letters of
administration per Section 53 of the Law of Succession Act; which has subsequently been
confirmed – thus granting him rights as a personal representative over the deceased’s
suit property.

He thus has a proper cause of action toward the suit property.

iv. Whether the application for a preliminary objection has merit.

Order 2, Rule 9 of the Civil Procedure Rules 2010 and Mukisa Biscuit Manufacturing
Co. Ltd v West End Distributors Ltd [1969] EA 696 specify grounds for a preliminary
objection to include matters such as: the suit is time barred, no cause of action, lack of
jurisdiction, lack of capacity to sue, res judicata, sub judice among others.

The suit is within time as it has been submitted in under one year. The matters on
jurisdiction and capacity have been addressed. There is no past or pending suit over
the same subject matter in another court.

The application for preliminary objection thus fails.

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E. DETERMINATION
In light of the foregoing, I thus make orders THAT:

a) The application be dismissed.

b) Costs be granted to the Applicant.

DELIVERED, DATED and SIGNED this 23rd of March 2023.

(sign)

KENTIENO

JUDGE

c) Extraction of Orders and Decrees

Decree

S 2, Civil Procedure Act – formal expression of an adjudication which, so far as regards

the court expressing it, conclusively determines the rights of the parties with regard
to all or any of the matters in controversy in the suit and may be either preliminary or
final.

Contents of a decree (Order 21, Rule 7 & 8)

• Names and descriptions of parties

• Particulars of the claim
• Relief granted
• Whom or out of what property or in what proportion the costs incurred in the
suit are to be paid
• Date of the day in which the judgment was delivered

Procedure for execution

• DH must make application – in writing, signed and verified.

• Application to state that the applicant requires an execution order.
• Court shall issue its process for the execution of the decree.

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11. Remedies upon judgment

a) Stay of execution
How to stay execution pending appeal

Oral application

If the stay is not granted, apply for stay by filing an appeal and attaching an
application for stay of execution which is done by way of notice of motion and
supporting affidavit.

Conditions to be satisfied for stay of execution to be granted – Order 42, Rule 6(2)

• Appeal has real prospect of success.

• Application made without unreasonable delay.
• Applicant will suffer substantial loss if orders for stay not granted.
• Applicant offers such security as the court may order to bind him to satisfy any
ultimate orders the court may make binding upon him.
• Whether the dictates of justice demand so.

Automatic stay of execution

• Orders for winding up a company

• Order for an interpleader
• Garnishee order
• Order for payment in instalments

b) Payment in instalments
The JD may after the passing of judgment apply to the court with the consent of the
DH, to pay the decretal sum in instalments.

c) Objection proceedings
Legal framework

• S 46, Civil Procedure Act

• Order 22, Rule 50-54 Civil Procedure Rules

Meaning & application

• Upon execution by way of attachment of property, such attachment can be

contested where the claimant or objector, a third party, who maintains that the

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property is not liable to such attachment as it is alleged it does not belong to the
JD but the objector.
• Application is through chamber summons.

Rationale

• The rationale for this rule is to safeguard 3rd parties against improper and
misconceived executions.
• Objector proceedings are in effect intended to enable holders of equitable
interest to preserve their interest or entitlement in the absence of the legal or
registered right e.g. bona fide occupants of land.

Procedure

• A notice in writing containing the objection to the attachment of property is

served upon the court, the JD and the DH.
• Notice to be accompanied by chamber summons supported by affidavit setting out
in brief the nature of the claim.
• Notice of objection and application to be served on all parties within 7 days of filing.
• Upon receipt of a valid notice and application court may stay execution for not
more than 14 days.

Orders that can be granted:

• Stay of execution
• Attachment be set aside
• Attached property be released to the objector
• Cost be paid by decree holder

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12. Execution of decrees and orders

Introduction
Execution of decrees & orders – O 22
Meaning Signifies the enforcement of or giving effect to the judgment or
orders of court of law.

Methods of A court may on the application of the decree holder, order execution
enforcement of the decree:
S 38, CPA • by issuing notice to show cause
• by delivery of movable property
• by attachment and sale or
• by sale without attachment, of any property
• sale by auction
• by attachment of debts
• attachment of salary or allowance of salary (1/3)
• by arrest and detention in civil jail
• by appointing a receiver
• if immovable property, by giving the DH possession
• garnishee application
• in such other manner as the nature of the relief granted may
require

It is the decree holder to select the appropriate means of execution

of his decree, subject to the discretion of the court.

1. Notice to show cause

Order 22, Rule 18 CPR
Where an application for execution is made:
• more than a year after the date of the decree;
• against the legal representative of a party to the decree;
• for attachment of salary or allowance of any person;
the court executing the decree shall issue a notice to the person against whom the
decree has been issued requiring him to show cause, on a date to be fixed, why the
decree should not be executed against him.

Notice must be given to the JD to show cause why one should not proceed with
execution;
• where the decree is attached to the salary of the JD – why the decree should
not be executed against him or her;
• why one should not be committed to civil jail.

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2. Decree for payment of money

• Detention in prison of the judgment debtor; or
• Attachment of his property, or both.
Execution by detention shall not be ordered unless after giving JD an opportunity
to show cause why he should not be committed to prison.

3. Decree for specific movable property

• Seizing and delivering that property to the party to whom it has been
adjudged.
• Suppose the judgment debtor refuses to release that property, you can have
them arrested.
• Sometimes you can merely attach the property, e.g. a vehicle by notifying the
Registrar of Motor Vehicles.
• Where attachment has remained in force for 6 months, if the JD has not
obeyed the decree and the DH has applied for the attached property to be
sold, it may be sold, and the proceeds of sale awarded to the DH.

4. Decree for specific immovable property

• Removing the judgment debtor from that property and putting the decree
holder in possession.
• Sometimes delivery of property can be symbolic. It does not always have to
be physical and actual possession.
• Attach and sell, where the execution order empowers the decree holder the
power to attach and sell the property.
• Appointment of receiver.

5. Garnishee proceedings
In such proceedings, a court orders a third party (the garnishee) to turn over to the
creditor (the party owed the money) funds that are owed by the garnishee to the
debtor (the party who owes the money) e.g. bank may take one’s salary from the
employer.

6. Execution against government

No execution orders against the government.
Application for satisfaction of orders against the government.

To ensure success of the application for execution, the following conditions must be
met:

• Evidence of the decree – certified copy of the judgment.

• Compliance with procedural rules – follow requisite steps.
• No appeal pending or stay of orders.
• No manifestation of bad faith.
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a) Notice to show cause

(see table above)

b) Decree for payment of money

• Detention in prison of the judgment debtor; or
• Attachment of his property, or both.

c) Decree for specific movable property/immovable property

Attachment of immovable property (land)
Order 22, Rule 48(1) CPR

• Attachment made by an order prohibiting the JD from transferring or charging the

property in any way.
• Attachment shall be complete and effective upon registration of a copy of the
prohibitory order or inhibition against the title to the property – s 68, LRA.

Application done through ex-parte notice of motion supported by affidavit.

Procedure

• DH seeks a prohibitory order/inhibition.

• Application done through an ex-parte Notice of Motion supported by affidavit.
• Court hears the decree holder and gives the order.
• Prohibitory order is served on the judgment debtor.
• Decree holder makes an application for attachment of land pursuant to S 38,
Civil Procedure Act – through notice of motion and supporting affidavit.
• DH files application and gets hearing date.
• DH serves JD with application.
• Court hears application and grants order for attachment.
• Order is served on auctioneer who attaches and sells the land.
• Auctioneers deduct necessary fees and hand recovered amount to DH, and
balance to JD.

d) Garnishee Proceedings
Order 23 – where one has a decree, but property of the judgment debtor is not in the
hands of the judgment debtor. These are proceedings instituted by the decree holder against
a third-party (garnishee) holding property of the judgment debtor.

The property over which the order is sought must be specific and recognised in the
order (cannot be general, e.g. ‘over all of [x]’s property’).
The garnishee must be within the jurisdiction of the court.

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Nature of garnishee proceedings

Garnishee proceedings involve attaching debts owed by a third party to the judgment
debtor, allowing the decree holder to intercept these funds before they reach the
debtor.

Procedure

Application is through notice of motion supported by affidavit. Must state:

• the name and address of the judgment debtor;
• the judgment to be enforced, giving the amount remaining unpaid;
• the garnishee is within the jurisdiction and is indebted to the JD; and
• if the garnishee is a deposit taking institution having more than one place of
business, give the name and address of the branch at which JD’s account is
believed to be held, the number of account; and
• if all or part of this information is not known to deponent, the fact it is not
known.

Garnishee order nisi

Once the court grants the garnishee order nisi, the garnishee will be restrained from
disbursing funds to the JD until further orders. The garnishee may confirm or object.
Upon confirmation of availability of funds, the DH may request the court to make the
garnishee order absolute.

Garnishee order absolute

Made upon confirmation of availability of funds by garnishee, thereby directing

payment to the decree holder.

Advantages of garnishee proceedings

Efficient as they allow creditor to bypass traditional enforcement mechanisms and
secure fund directly from third parties holding the debtor’s assets.

Possible challenges
Success depends on acceptance of the garnishee admitting to holding funds for the JD.

e) Execution against the Government

No order against the government may issue under:
• Order 14, rule 4 (Impounding of documents);
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• Order 22 (Execution of decrees and orders);

• Order 23 (Attachment of debts);
• Order 40 (Injunctions); and
• Order 41 (Appointment of receiver). (O29 r2(2))

There must be:

• Judgment
• Decree
• Certificate of Satisfaction order against the government – S 21, Government
Proceedings Act; Order 29, Rule 3 (once certificate of costs has been issued)

f) Enforcing foreign judgments

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13. Review

Comparison between appeal and review

Difference between:

• Appeal – an unsuccessful party in a case decides to take the case to a higher

court to seek reversal of a decision made by a lower court.
The party that files an appeal believes that there were errors made either on the
laws or facts raised.
Part VIII Civil Procedure Act, Order 42 Civil Procedure Rules.

• Review – re-examination of a matter by the very court.

Note:
Review may not be exercised on the ground that the decision was erroneous on merits.
That’s the purview of appeal.

Definition
Review is a judicial re-examination of the same case by the same judge in certain
circumstances.

Legal framework
• Section 80, CPA – substantive right of review.
• Order 45, CPR – procedure for review.

Procedure
• Any person aggrieved by the decree order may apply for review.
• Application done through notice of motion and supporting affidavit.
• Aggrieved party – a person who:
✓ has suffered such legal grievance;
✓ against whom a decision has been made;
✓ has been deprived of something; or
✓ has been affected by the decision.
The person is aggrieved by a decree or order from which:
✓ an appeal is allowed, but from which no appeal has been preferred;
✓ no appeal is allowed.
• A person who is not a party to the decree or order cannot apply for review as
such a decree will not be binding on such person thus cannot be said to be
aggrieved within the meaning of Order 45, CPR and section 80, CPA.

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• An application for review should be made to the very judge who passed the
decree or made the order. But if the judge is no longer available, it should be
heard by the successor to that office.

Grounds for review

A review of judgment will be applied in instances as follows:

• an appeal is allowed but no appeal has been preferred;

• no appeal is allowed;
• discovery of new and important evidence – which was not within his
knowledge or could not be produced by him at the time when the decree was
passed;
• the new evidence is capable of altering the initial judgment;
• mistake or error apparent on the face of the record;
• application must be made without delay;
• substantial harm/injustice will be suffered if review not allowed; or
• any other sufficient reason.

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14. Appeal

(a) Right of Appeal

General overview
Order 42 & 43 CPR

There is no right of appeal against a judgment or order of court of a competent

jurisdiction unless a statute expressly so provides. An appeal does not automatically
lie against every order.

Order 43 Rule 1 and section 75 Civil Procedure Act give a list of orders from which
an appeal lies from as of right.

O43 r 1(3) – To appeal an order that is not on the list one would have to seek leave of
the court, and the application for leave should first be made to the court that made the
order to be appealed from. No appeal lies form a decree passed by court with the
consent of parties.

Application for leave

By way of notice of motion or orally in court at the time of making the order.
Application for leave to appeal should be made in the first instance to the court which
made the order that is being sought to be appealed against.

Appeal against refusal of leave – there can be no appeal against the decision unless it
was denied on a basis of a question of law.

The effect of failure to obtain leave of court where it is required will result in striking
out of the appeal. Once leave has been granted the appellant will proceed to file a
Memorandum of Appeal.

Justification for leave

• To prevent frivolous and needless appeals

• Uphold principle of res judicata

(b) Time for appeals

Subordinate court to High Court

Section 79G Civil Procedure Act – filed within 30 days from the date of the decree or
order appealed against.

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High Court to Court of Appeal – Timelines

• Notice of appeal to be filed within 14 days from the date the order is made.
• Serve other party within 7 days of filing.
• File record of appeal within 60 days of filing notice of appeal.
• Serve other party within 7 days of filing record of appeal.

Extension of time
One can apply for extension of time on grounds that:

• Delay was not deliberate

• Appeal is arguable/meritorious
• Has overwhelming chances of success
• No prejudice will be occasioned to the respondent
• Whether application is brought without undue delay
• In the interest of justice

*Obtain and file a certificate of delay.

(c) Parties to appeals

Appellant & Respondent.

(d) Appeals from subordinate Courts to the High Court and Court of equal status
The first appeal will be an appeal on both facts and the law.

Section 79G Civil Procedure Act – filed within 30 days from the date of the decree or
order appealed against.

Order 42 Rule 1 – Every appeal to the High Court shall be in the form of a
memorandum of appeal signed in the same manner as a pleading.

The memorandum of appeal shall set forth concisely and under distinct heads the:

• grounds of objection to the decree or order appealed against,

• without any argument or narrative, and
• such grounds shall be numbered consecutively.

Appeal documentation

• the memorandum of appeal;

• the pleadings;
• the notes of the trial magistrate made at the hearing;

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• the transcript of any official shorthand, typist notes electronic recording or

palantypist notes
• made at the hearing;
• all affidavits, maps and other documents whatsoever put in evidence before the
magistrate;
• the judgment, order or decree appealed from, and, where appropriate, the
order (if any) giving leave to appeal

Sample 1 – Memorandum of Appeal

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISCELLANEOUS APPLICATION X OF 2018

SALIM MOHAMED SALIM BAKHRESA.............................................APPELLANT

VERSUS

SHAROK KHER MOHAMED ALI KIRJI............................................ RESPONDENT

(Being an appeal against the Ruling and Order of the Deputy Registrar (Hon F. Rashid),
delivered on 23rd November 2018 in HCCC No. of 2005)

MEMORANDUM OF APPEAL

(Under Order 42, Rule 1 of the Civil Procedure Rules, 2010)

The Appellant, being dissatisfied with the Ruling and Order of the Honourable
Deputy Registrar (Hon F. Rashid), in HCCC No. of 2018 appeals to a Judge in
Chambers on the following GROUNDS:

1. The learned Deputy Registrar erred in fact and law in the way she weighed the
evidence before the court to determine the issue of whether there was an oral
set off agreement between the Appellant and the Respondent settling the
decretal amount.
2. The learned Deputy Registrar erred in fact and law in requiring the Appellant
to produce the set off agreement, yet the said agreement was ORAL, which
agreement is not capable of being exhibited before this Honourable court and
its existence could only be deduced from the conduct of the parties, which
existence the Appellant ably demonstrated.
3. The learned Deputy Registrar erred in law and in fact by condemning the
Appellant to pay the taxed costs afresh, yet the Respondent had conceded
under oath on 2 occasions that costs had already been paid to her advocate.

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4. The learned Deputy Registrar erred in law and in fact by failing to rectify the
error on the face of the record with regard to payment of the costs of the suit to
the Respondent.
5. The learned Deputy Registrar erred in law and in fact by failing to take into
consideration the submissions and response by the appellant before she arrived
at her decision yet the same were properly on record.

REASONS WHEREFORE the Appellant prays:

a) That this Appeal be allowed and ruling, and order of the Honourable Deputy
Registrar delivered on 23rd November 2018 be set aside.
b) That this Honourable court be pleased to issue a declaration that the decretal
amount and costs of this suit due from the Appellant has been fully settled.
c) The Appellant be awarded costs of this appeal.

DATED at NAIROBI this ……………. day of …………………………………., 2018

(Sign)

KSL & COMPANY ADVOCATES

ADVOCATES FOR THE APPLICANT

DRAWN &FILED BY:

KSL & CO. ADVOCATES

MUTULA HALL
P.O BOX 999999999 - 2022
CLE.

TO BE SERVED UPON:

9PS & CO. ADVOCATES

NEW LECTURE HALL
P.O BOX 999999999 - 2022
CLE.

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Sample 2 – Memorandum of Appeal

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014

MKOSA NIDHAMU ………………………………………….…1ST APPELLANT

DAIMA TRAVELLERS LIMITED ...…………………………..2ND APPELLANT
VERSUS

FURAHA MINGI ……………………………………………….PLAINTIFF

(Being an application from the judgment, decree order of the chief magistrate court at Nairobi
before Honourable Arwari dated 8th day of May 2014 in civil suit no. 543 of 2014).

MEMORANDUM OF APPEAL

(Under Order 42, Rule 1 of the Civil Procedure Rules, 2010)

MKOSA NIDHAMU, DAIMA TRAVELLERS LIMITED, the above-named

appellants, appeal to the high court against the whole of the above-mentioned
decision on GROUNDS THAT:

1. The learned trial magistrate erred in fact by failing to consider the supposed
road sign ‘DO NOT OVERTAKE’ was in a duplicated state hence could not be
seen by the motorist thus exempting the 1st appellant from liability.
2. The learned trial magistrate erred in fact by not taking into consideration the
fact that the accident could not be prevented.
3. The learned trial magistrate erred in fact by not considering that the respondent
was not wearing a seat belt hence the principle of contributory negligence.
4. The learned trial magistrate erred in fact by awarding the respondent damages
amounting to kshs.9, 350,000 that is in excess of what the respondent had
prayed for in the plaint.

Accordingly, the appellant prays that this Honourable court be pleased to issue orders
that:

a) The appeal is allowed with costs.

b) The judgment/ decree delivered on the aforesaid date be reversed or varied
with costs.

LODGED at the High Court Registry this 11thday of May 2014.

OWANO AND COMPANY

ADVOCATES FOR THE APPELLANTS.

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DRAWN AND FILED BY:

OWANO AND COMPANY ADVOCATES,

7TH FLOOR, REINSURANCE PLAZA, MOI AVENUE,
P.O. BOX 9043-00100, NAIROBI, KENYA.

TO BE SERVED UPON:

KAULA AND COMPANY ADVOCATES,

2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100, NAIROBI.

Sample 3 – Memorandum of Appeal

REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI

CIVIL DIVISION

CIVIL APPEAL NO. OF 2016

JOE BLOGGS ………….……………………………………………………. APPELLANTS

VERSUS

JANE DOE ………….……………………………………………………... RESPONDENT

(An appeal from the judgement of the Honourable SPM Mr. Nyakundi delivered on 20th
March 2014 in Nairobi Milimani CMCC NO. 7828 OF 2012 the parties being JOE
BLOGGS VS JANE DOE & MARK X)

MEMORANDUM OF APPEAL

(Order 42 rule 1 of the Civil Procedure Rules)

The Appellants, being dissatisfied by the judgement of the Honourable Senior

Resident Magistrate in the above suit dated the 20th day of March 2014, appeal to this
court, and set forth the following grounds of objection to the judgement appealed from
namely:-

1. THAT the learned magistrate erred in law and in fact in by failing to appreciate
that the burden of proof lay squarely on the plaintiff.

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2. THAT the learned magistrate misdirected himself in finding that there was no
evidence to establish who was to blame in the accident yet conclude that both
parties were to blame for the accident.
3. THAT the learned magistrate misdirected himself on the assessment of quantum
on general damages.

Dated at Nairobi this …………….. day of ………………………., 2016.

SMITH, TABATHA, BUCANAN & BOYLES LLP

ADVOCATES FOR THE APPELLANTS

Drawn & filed by:

SMITH, TABATHA, BUCANAN & BOYLES LLP

ADVOCATES
FORTIS TOWERS, NEW WING, 1ST FLOOR,
MPAKA ROAD,
P.O BOX 2704 – 00100,
NAIROBI.

To be served upon:

KYENGO, BASSUM, MAKO, DANSO LLP

ADVOCATES
RATTANSI EDUCATIONAL TRUST BUILDING, 1ST FLOOR
KOINANGE STREET,
P.O. BOX 10409 –00100
NAIROBI

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(e) Appeals from the High Court and Courts of equal status to the Court of Appeal
Guided by Court of Appeal Rules 2022 (Part 4, rules 76-108)

Procedure for appeal

1. Preparation of notice of appeal – rule 77
2. Sealing by the High Court
3. Filing the notice of appeal in the CoA registry – within 14 days of the decision
4. Serving the other party within 7 days of filing
5. Preparation of record of appeal
6. Filing of record of appeal – within 60 days of filing of notice of appeal
7. Serving the record of appeal – within 7 days of filing of record of appeal

A stay of execution application can only be made after the notice of appeal has been
filed under rule 77 of court of appeal rules.

After filing a notice of appeal and serving it, a party needs to make an application for
stay of execution of the High Court decree even before preparing a record of appeal.

Application to file an appeal out of time/for extension of time

Application by way of notice of motion and supporting affidavit; attaching notice of
appeal.
Court has unfettered discretion to extend time – only subject to it being granted on
terms as the court may think just.

Grounds for extension of time:

• Delay was not deliberate

• Appeal is arguable/meritorious
• Has overwhelming chances of success
• No prejudice will be occasioned to the respondent
• Whether application is brought without undue delay
• In the interest of justice

*Obtain and file a certificate of delay.

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Notice of Appeal – Appeal to the CoA

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

IN THE CIVIL DIVISION

CIVIL CASE NO. ……. OF 2017

KTK LTD …………………………..………………..………………………… PLAINTIFF

VERSUS

DARASA CLASS LTD……………………………………………………. DEFENDANT

NOTICE OF APPEAL

(Under Rule 77 of the Court of Appeal Rules, 2022)

TAKE NOTICE that KTK LTD being dissatisfied with parts of the decision of the
Honourable Mr. Justice XYZ given at Nairobi on the 11th day of July 2017 intends to
Appeal to the Court of Appeal against such part of the decision as decides:

1) THAT (LIST THE INTENDED GROUNDS OF APPEAL HERE, numbered

consecutively)

2) …………..

REASONS WHEREFORE the Appellant prays:

The address of service for the Appellant is care of WAKILI & COMPANY
ADVOCATES, SHERIA HOUSE, 2ND FLOOR, ATTORNEY’S STREET, P.O. BOX
23481-00200 NAIROBI.

It is intended to serve copies of this Notice of Appeal on DARASA CLASS LIMITED

C/o SOLICITOR & COMPANY ADVOCATES, GOAL PLACE, 1ST FLOOR, LAW
STREET, NAIROBI.

DATED at Nairobi this ………….. Day of …………………….. 2017.

WAKILI & COMPANY

ADVOCATES FOR THE APPELLANT.

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To: The Registrar of the High Court of Kenya at Nairobi.

LODGED in the High Court of Kenya at Nairobi this day of 2017.

DEPUTY REGISTRAR

HIGH COURT OF KENYA AT NAIROBI.

DRAWN & FILED BY

WAKILI & COMPANY

ADVOCATES
P.O. BOX
NAIROBI.

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(f) Appeals from the Court of Appeal to the Supreme Court

Grounds
Governed primarily by Article 163(4) of the Constitution of Kenya, 2010. This
provision outlines two main circumstances under which a case can be appealed to the
Supreme Court:

• Interpretation or application of the Constitution

Article 163(4)(a) – an appeal may be made to the Supreme Court as of right in
cases involving the interpretation or application of the Constitution.

• General public importance

Article 163(4)(b) – an appeal may be made with the certification of either the
Court of Appeal or the Supreme Court itself, on the basis that the matter is of
"general public importance."

Procedure
Supreme Court Act

S 15 – appeals to the Supreme Court shall be heard only with the leave of the Court;
save for matters relating to the interpretation or application of the Constitution.

S 15A – appeals involving interpretation of the Constitution vide Art 163(4)(a) lie as a
matter of right.

S 15B – any appeal to the Supreme Court involving a matter of general public
importance shall only be made upon certification by the CoA or upon certification by
the Supreme Court in accordance with Art 163(4)(b) of the Constitution.

(g) Appeals from Tribunals and other statutory bodies

(h) Documents of Appeal

Documents contained in the record of appeal

1. Certified copy of decree/order

2. Certified copy of judgment/ruling
3. Certified copy of proceeding in lower court
4. Copies of pleadings relied on in lower court
5. Affidavit in support of record of appeal
6. Copies of all affidavits relied on in lower court
7. Copies of all documents relied on in trial court

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8. Memorandum of appeal
9. Notice of appeal
10. Notes of trial judge made at the hearing
11. Transcript of any official shorthand, typist notes, electronic notes, electronic
records at the hearing
12. Maps and drawings relied on at trial court
13. Index of all the documents in the record with the numbers of pages at which
they appear
14. A statement showing the address for service of the appellant and the address
for service furnished by the respondent
15. The order, if any, giving leave to the appeal

(i) Stay of execution pending appeal

The magistrate court may stay the execution for a given period after pronouncement
of a judgment from an oral application by the losing party.

If stay is not granted at magistrate court, a person can apply to the High Court for a
stay by first filing an appeal and attaching an application for stay of execution through
Notice of Motion and supporting affidavit.

For a stay of execution to be granted, an applicant must satisfy the conditions in Order
42 Rule 6(2), CPR to the effect that:

(a) substantial loss may result to the applicant unless the order is made
(b) the application has been made without unreasonable delay; and
(c) security has been given by the applicant.

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15. Judicial Review

Legal Framework

• Art 23(3)(f) – HC jurisdiction for JR.

• Art 47 – Fair administrative action.
• Sections 8 & 9 Law Reform Act – JR powers to HC (certiorari, mandamus,
prohibition).
• Sections 4 & 5 FAAA (grounds for JR).
• Order 53, Civil Procedure Rules – procedure (leave and substantive).

Relevant case law

• SGS v ERC – process review on administrative decisions.

• Edwin Dande v Inspector General – merit review and JR as a constitutional
fundamental right.
• Saisi v DPP – judicial review courts have powers to interrogate both process
and merit review.

Orders sought:

• Certiorari – quashing orders.

• Mandamus – compelling orders.
• Prohibition – restraining orders.

Grounds

• Procedural impropriety
• Unfair administrative action
• Unreasonableness
• Irrationality
• Violation of the principles of natural justice
• Bias
• Unfairness
• Ultra vires
• Abuse of power
• Bad faith

Stages and documents

Leave stage – Order 53

• Chamber summons application

• Statutory statement
• Verifying affidavit
• May file Cert of urgency

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Substantive stage

• Applicant is required to file the substantive application for judicial review with
the High Court and apply for the orders for which leave has been granted
within 21 days from the date the order for leave is made.
• The notice of motion must be accompanied by copies of the statutory
statements and copies of the affidavits which accompanied the application for
leave.

Considerations for a successful application

• Merit – grounds must not be vexatious or frivolous.

• Promptness – made without undue delay.
• Locus standi – a real cause of action must be established.

Sample JR Application

Leave Stage
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT PEPONI BAY
JR APPLICATION NO. OF 2021

IN THE MATTER OF: ARTICLES 2, 3, 10, 19, 20, 23, 25, 27, 47,165(6),
258 AND 260 OF THE CONSTITUTION OF KENYA,
AND
IN THE MATTER OF: CONTRAVENTION OF RIGHTS AND FUNDAMENTAL
FREEDOMS
UNDER ARTICLES 2 (1), 3 (1) 10 (1) (2), 19 (2), 20 (2), 27 (1), 35 (1), 38(1) (2)
& (3), 47 (1) (2), 48, 50 (1) (2), OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: SECTIONS 4 AND 5 FAIR ADMINISTRATIVE ACTION
ACT NO. 4 OF 2015
AND
IN THE MATTER OF: STANDING ORDER NO. 49, 50 OF THE HOMA BAY
COUNTY ASSEMBLY STANDING ORDERS

BETWEEN
EXPARTE
Hon. Mlachake ……………………………..……………......………...........APPLICANT
VERSUS
PEPONI BAY COUNTY ASSEMBLY ……………..................… 1ST RESPONDENT
THE SPEAKER OF PEPONI BAY COUNTY ASSEMBLY ..…... 2ND RESPONDENT

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CERTIFICATE OF URGENCY

I AKILI MINGI, an Advocate of this court who has the conduct of this case on behalf

of the Applicant do certify that the Chamber Summons filed herewith is a most urgent

Application requiring to be placed before the Honourable Duty Judge at the earliest

possible moment for the reasons that Applicant is in immediate and imminent danger

of being unlawfully and unjustifiably prevented from representing his constituents

following the adoption of the report by the 1st Respondent on 21st March, 2019

suspending the Applicant from accessing the precincts of the 1st Respondent for a

period of one and half month.

The loss and damage will not be able to be compensated by damages as the

Applicant’s participation on the proceedings of the 1st Applicant would adversely

affects his constituents if the Honourable Court does not intervene.

Dated at Nairobi this day of 2021

_______________________________
AKILI MINGI ADVOCATES
ADVOCATES FOR THE APPLICANT

DRAWN AND FILED BY:-

AKILI MINGI AND CO ADVOCATES
WAHESHIMIWA BUILDING
KENYATTA AVENUE
P.O BOX 10391-00100
NAIROBI

TO BE SERVED UPON:-_

1. PEPONI BAY COUNTY ASSEMBY

P.O. BOX 4000

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PEPONIBAY

2. THE SPEAKER OF PEPONIBAY COUNTY ASSEMBY

P.O. BOX 4000
PEPONIMABAY

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT PEPONI BAY
JR APPLICATION NO. OF 2021

IN THE MATTER OF: ARTICLES 2, 3, 10, 19, 20, 23, 25, 27, 47,165(6),
258 AND 260 OF THE CONSTITUTION OF KENYA,
AND
IN THE MATTER OF: CONTRAVENTION OF RIGHTS AND FUNDAMENTAL
FREEDOMS
UNDER ARTICLES 2 (1), 3 (1) 10 (1) (2), 19 (2), 20 (2), 27 (1), 35 (1), 38(1) (2)
& (3), 47 (1) (2), 48, 50 (1) (2), OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: SECTIONS 4 AND 5 FAIR ADMINISTRATIVE ACTION
ACT NO. 4 OF 2015
AND
IN THE MATTER OF: STANDING ORDER NO. 49, 50 OF THE PEPONI BAY
COUNTY ASSEMBLY STANDING ORDERS

BETWEEN
EXPARTE HON MLACHAKE…………………......………...........…….. APPLICANT
VERSUS
PEPONIBAY COUNTY ASSEMBLY ………………..................… 1ST RESPONDENT
THE SPEAKER OF PEPONI BAY COUNTY ASSEMBLY ……... 2ND RESPONDENT

CHAMBER SUMMONS

(Under Order 53 Rule 1(4) of the Civil Procedure Rules 2010, Sections 1A, 1B, 3A and 63
(e) of the Civil Procedure Act, and all other enabling provisions of the Law)

LET ALL PARTIES concerned attend the Honourable judge in the chambers on
this…… day of …….2018 at 9 o’clock in the forenoon or soon thereafter as counsel for
the applicants may be heard for ORDERS:-

1. THAT this application be certified urgent and the same be heard ex parte in the
first instance and thereafter be listed for hearing inter partes.

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2. THAT this Honourable Court be pleased to grant the Applicant herein leave to
institute Judicial Review against the decision of the 2nd Respondent to suspend
him from the precincts of the 1st Respondent.

3. THAT the leave sought in (2) above if granted do operates as stay so that he
would continue to execute his mandate of representation as the duly elected
Member of County Assembly of the County Assembly of Homa Bay pending
the hearing and determination of the Notice of Motion.

4. THAT the costs of these proceedings be borne by the Respondents and or as

may be ordered by the court.

5. THAT the Honourable Court be pleased to grant such other or further relief as
it may deem fit in the circumstances.

AND WHICH APPLICATION is based on the following grounds THAT:-

i. The proceedings, findings and recommendations in the said report are a gross
travesty of justice as they have offended all possible principles of law, the
Constitution and County Assembly Standing Orders, practice and customs of
the Peponi Bay County Assembly.

ii. The 1st and 2nd Respondents’ conduct in the process leading to the decision and
adoption of the said report is manifestly malicious, unlawful, unconstitutional,
unprocedural, inconsistent, contradictory and ultra vires the provisions and
procedure of the law in particular the Constitution of Kenya, 2010 and the
peponi Bay County Assembly Standing Orders, in particular Standing Orders
172, as well as section 15(6) of the County Assemblies Powers and Privileges
Act, 2017, the Constitution and established practices, customs and traditions of
the Homa Bay County Assembly. The process and the report are both an
unmitigated illegality.

iii. The 1st and 2nd Respondents’ decisions are unfair, discriminatory, arbitrary,
inconsistent, contradictory, malicious and capricious and offend the
presumption of innocence as enshrined in the Constitution.

iv. The Respondents’ decisions are irrational, an abuse of power, oppressive,

punitive, grossly unlawful, actuated by political malice and vendetta and
against \the legitimate expectation of the people of Karachuonyo Central Ward
and the Applicant herein as the elected Member of County Assembly and
immediate Chairman of the Public Accounts and Investments Committee.

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v. The Respondents’ decisions are made for an illegal, improper motive and or for
selective extraneous purpose failing to take into account relevant factors and
provisions of the law on due process on the right to a just and fair hearing.

vi. The decision to suspend the applicant herein shall adversely affects the people
of whom he represent in the County Assembly and such effects cannot be
compensated should this Honourable Court grant leave to operate as stay at
this leave stage.

vii. It is in the interest of the\ people the Applicant represents for this Honourable
Court to allow the Applicant to continue accessing the precincts of the 1 st
Respondent and to contributes to the motions and Bills introduced thereon
which will have adverse effects to his constituents should he not be present.

viii. The decision of the 1st and 2nd Respondent is not proportionate to the issues
raised on the impugned report and as such does not meet the proportionality
test under Article 24 of the Constitution of Kenya.

WHICH APPLICATION is further supported by the annexed statutory statement of

and verifying affidavit of HON. Mlachake.

Dated at Nairobi this day of 2021

_______________________________
AKILI MINGI &CO ADVOCATES
ADVOCATES FOR THE APPLICANT

DRAWN AND FILED BY:-

AKILI MINGI &COMPANY ADVOCATES
17TH FLOOR, ICEA BUILDING, NORTH WING
KENYATTA AVENUE
P.O BOX 10391-00100
NAIROBI

TO BE SERVED UPON:-_

1. PEPONI BAY COUNTY ASSEMBY

P.O. BOX 4000
PEPONI BAY

2. THE SPEAKER OF PEPONI BAY COUNTY ASSEMBY

P.O. BOX 4000
PEPONI BAY
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT PEPONI BAY
JR APPLICATION NO. OF 2021

IN THE MATTER OF: ARTICLES 2, 3, 10, 19, 20, 23, 25, 27, 47,165(6),
258 AND 260 OF THE CONSTITUTION OF KENYA,
AND
IN THE MATTER OF: CONTRAVENTION OF RIGHTS AND FUNDAMENTAL
FREEDOMS
UNDER ARTICLES 2 (1), 3 (1) 10 (1) (2), 19 (2), 20 (2), 27 (1), 35 (1), 38(1) (2)
& (3), 47 (1) (2), 48, 50 (1) (2), OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: SECTIONS 4 AND 5 FAIR ADMINISTRATIVE ACTION
ACT NO. 4 OF 2015
AND
IN THE MATTER OF: STANDING ORDER NO. 49, 50 OF THE HOMA BAY
COUNTY ASSEMBLY STANDING ORDERS

BETWEEN
EX-PARTE

HON. MLACHAKE …..……………......………...........…….. APPLICANT

VERSUS
PEPONI BAY COUNTY ASSEMBLY …………………..............… 1ST RESPONDENT
THE SPEAKER OF PEPONI BAY COUNTY ASSEMBLY ……... 2ND RESPONDENT

STATUTORY STATEMENT
(Pursuant to Order 53 Rule 1(2) of the Civil Procedure Rules 2010)

A. NAME AND DESCRIPTION OF PARTIES

1. The Applicant is an adult of sound mind residing and working for gain as the
member of Homa Bay County Assembly within the Republic of Kenya. The
address for purpose of service shall be care of M/S LUMUMBA &AYIEKO
ADVOCATES, 17TH FLOOR, ICEA BUILDING, NORTH WING,
KENYATTA AVENUE, P.O BOX 10391-00100, NAIROBI.

2. The 1st Respondent is legislative organ of the County Government provided for
under the County Government Act mandated to carry out legislation of matters
affecting the County of Peponi Bay. The address for purpose of service shall be
care of PEPONI BAY COUNTY ASSEMBLY, P. O. BOX 20-40300, PEPONI
BAY.

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3. The 2nd Respondent is elected ex-officio member of the County Assembly of

Peponi Bay the 1st Respondent herein mandated to preside over the business of
the 1st Respondent as from time to time in its ordinary conducting of legislative
mandates. The address for purpose of service shall be care of OFFICE OF THE
SPEAKER, PEPONI BAY COUNTY ASSEMBLY, P. O. BOX 4000.

B. RELIEF SOUGHT

4. The orders sought by the Applicant are:-

i. THAT this application be certified urgent and the same be heard ex parte in
the first instance and thereafter be listed for hearing inter partes.
ii. THAT this Honourable Court be pleased to grant the Applicant herein leave
to institute of Judicial Review against the decision of the 2nd Respondent to
suspend him from the precincts of the 1st Respondent.

iii. THAT the leave sought in (2) above if granted do operates as stay so that
he would continue to execute his mandate of representation as the duly
elected Member of County Assembly of the County Assembly of Peponi Bay
pending the hearing and determination of the Notice of Motion.

iv. THAT the costs of these proceedings be borne by the Respondents and or as
may be ordered by the court.

v. THAT the Honourable Court be pleased to grant such other or further relief
as it may deem fit in the circumstances.

C. GROUNDS UPON WHICH THE ORDERS ARE SOUGHT

5. Which application is based on the following grounds THAT:-

a. The proceedings, findings and recommendations in the said report are a gross
travesty of justice as they have offended all possible principles of law, the
Constitution and County Assembly Standing Orders, practice and customs of
the Peponi Bay County Assembly.

b. The 1st and 2nd Respondents’ conduct in the process leading to the decision and
adoption of the said report is manifestly malicious, unlawful, unconstitutional,
un-procedural, inconsistent, contradictory and ultra vires the provisions and
procedure of the law in particular the Constitution of Kenya, 2010 and the
Peponi Bay County Assembly Standing Orders, in particular Standing Orders
172, as well as section 15(6) of the County Assemblies Powers and Privileges
Act, 2017, the Constitution and established practices, customs and traditions of
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the County Assembly. The process and the report are both an unmitigated
illegality.

c. The 1st and 2nd Respondents’ decisions are unfair, discriminatory, arbitrary,
inconsistent, contradictory, malicious and capricious and offend the
presumption of innocence as enshrined in the Constitution.

d. The Respondents’ decisions are irrational, an abuse of power, oppressive,

punitive, grossly unlawful, actuated by political malice and vendetta and
against the legitimate expectation of the people of Peponi Bay Ward and the
Applicant herein as the elected Member of County Assembly and immediate
Chairman of the Public Accounts and Investments Committee.

e. The Respondents’ decisions are made for an illegal, improper motive and or for
selective extraneous purpose failing to take into account relevant factors and
provisions of the law on due process on the right to a just and fair hearing.

f. The decision to suspend the applicant herein shall adversely affects the people
of whom he represent in the County Assembly and such effects cannot be
compensated should this Honourable Court grant leave to operate as stay at
this leave stage.

g. It is in the interest of the people the Applicant represents for this Honourable
Court to allow the Applicant to continue accessing the precincts of the 1 st
Respondent and to contributes to the motions and Bills introduced thereon
which will have adverse effects to his constituents should he not be present.

h. The decision of the 1st and 2nd Respondent is not proportionate to the issues
raised on the impugned report and as such does not meet the proportionality
test under Article 24 of the Constitution of Kenya.

Dated at Nairobi this day of 2021

_______________________________
MLACHAKE & COMPANY ADVOCATES
ADVOCATES FOR THE APPLICANT

DRAWN AND FILED BY:-

MLACHAKE &COMPANY ADVOCATE
NAIROBI

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TO BE SERVED UPON:-_

1. PEPONI BAY COUNTY ASSEMBY

P.O. BOX 4000
PEPONI BAY

2. THE SPEAKER OF PEPONI BAY COUNTY ASSEMBY

P.O. BOX 20 - 40300
PEPONI BAY

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT PEPONI BAY
JR APPLICATION NO. OF 2021

IN THE MATTER OF: ARTICLES 2, 3, 10, 19, 20, 23, 25, 27, 47,165(6),
258 AND 260 OF THE CONSTITUTION OF KENYA,
AND
IN THE MATTER OF: CONTRAVENTION OF RIGHTS AND FUNDAMENTAL
FREEDOMS
UNDER ARTICLES 2 (1), 3 (1) 10 (1) (2), 19 (2), 20 (2), 27 (1), 35 (1), 38(1) (2)
& (3), 47 (1) (2), 48, 50 (1) (2), OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: SECTIONS 4 AND 5 FAIR ADMINISTRATIVE ACTION
ACT NO. 4 OF 2015
AND
IN THE MATTER OF: STANDING ORDER NO. 49, 50 OF THE PEPONI BAY
COUNTY ASSEMBLY STANDING ORDERS

BETWEEN
EX-PARTE

HON. MLACHAKE ..……………......………...........…….. APPLICANT

VERSUS
PEPONI BAY COUNTY ASSEMBLY …………………..............… 1ST RESPONDENT
THE SPEAKER OF PEPONI BAY COUNTY ASSEMBLY..…... 2ND RESPONDENT

VERIFYING AFFIDAVIT
(Pursuant to Order 53 Rule 1(2) of the Civil Procedure Rules 2010)

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I, MLACHAKE, of Post Office Box Number 10391 – 00100, NAIROBI, do hereby make
oath and state as follows:-

1. THAT I am a male adult of sound disposition and the Applicant herein

conversant with the facts of this case hence competent to swear this
affidavit.

2. THAT I confirm that all the averments contained in the application herein
are correct.

3. THAT there is no suit pending between the parties over the same subject
matter.

4. THAT what is stated herein above is true to the best of my knowledge,

information and belief.

SWORN at Nairobi )
By the said HON. MLACHAKE )
this day of 2021 ) __________________
) DEPONENT
BEFORE ME )
)
COMMISSIONER FOR OATHS )

DRAWN AND FILED BY:-

AKILI MINGI &COMPANY ADVOCATES
P.O BOX 4000
NAIROBI

TO BE SERVED UPON:-_

1. PEPONI BAY COUNTY ASSEMBY

P.O. BOX 4000
PEPONI BAY

2. THE SPEAKER OF PEPONI BAY COUNTY ASSEMBY

P.O. BOX 4000
PEPONI BAY

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Substantive Stage
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT PEPONI BAY
JR APPLICATION NO. OF 2021

IN THE MATTER OF: ARTICLES 2, 3, 10, 19, 20, 23, 25, 27, 47,165(6),
258 AND 260 OF THE CONSTITUTION OF KENYA,
AND
IN THE MATTER OF: CONTRAVENTION OF RIGHTS AND FUNDAMENTAL
FREEDOMS
UNDER ARTICLES 2 (1), 3 (1) 10 (1) (2), 19 (2), 20 (2), 27 (1), 35 (1), 38(1) (2)
& (3), 47 (1) (2), 48, 50 (1) (2), OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: SECTIONS 4 AND 5 FAIR ADMINISTRATIVE ACTION
ACT NO. 4 OF 2015
AND
IN THE MATTER OF: STANDING ORDER NO. 49, 50 OF THE PEPONI BAY
COUNTY ASSEMBLY STANDING ORDERS

BETWEEN
HON. MLACHAKE ……………………...………..………...........…….. APPLICANT
VERSUS
PEPONI BAY COUNTY ASSEMBLY ………………..................… 1ST RESPONDENT
THE SPEAKER OF PEPONI BAY COUNTY ASSEMBLY ……... 2ND RESPONDENT

NOTICE OF MOTION

(Under Order 53 Rule 1(4) of the Civil Procedure Rules 2010, Sections 1A, 1B, 3A and 63
(e) of the Civil Procedure Act, and all other enabling provisions of the Law)

TAKE NOTICE that pursuant to leave granted by this Honourable Court on …….day
of…………2018, this court shall be moved on this……day of…….2018 at 9 o’clock in
the forenoon or soon thereafter as counsel for the applicant may be heard for the
ORDERS:-

1. THAT the Applicant be granted an order of certiorari to bring into this court
and quash the ruling of the speaker of the County Assembly of Homa Bay
County made on the 19th March 2019 setting in motion the whole process by
purporting to suspend the Applicant for one and half month and further quash
all decisions and recommendations made by the Respondents in particular the
1st Respondent in its report dated 19th March 2018 presented and duly adopted
thereto the 21st March, 2019 in particular recommendation numbers (3) and any
further measures initiated and concluded thereafter by the County Assembly
of Homa Bay.
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2. THAT the Applicant be granted an order of certiorari to bring into this court
and quash the decision made by the Respondents to implement the report of
the 1st Respondent’s Committee on Powers and Privileges that purported to
suspend the Applicant from the precincts of the 1st Respondent for a period of
one and a half month.

3. THAT the Applicant be granted an order of certiorari to bring into this court
and quash and expunge from all records, including the Handsard, minutes and
report of the County Assembly of Homa Bay and its Committees all references
and inferences adverse to the Applicant based on the false and unsubstantiated
allegations on the alleged breach of privileges made by the Committee on
Powers and Privileges.

4. THAT the Applicant be granted an order of prohibition directed to the

Respondents in particular the 2nd Respondent prohibiting and restraining it
from implementing the report dated 19th March 2018 and as adopted for
implementation by the 1st Respondent on the 21st March 2018 in particular
recommendation numbers (3) of the report purporting to suspend the
Applicant from the precincts of the 1st Respondent for a period of one and a half
month, including any other proceedings and resolutions adopted thereafter.

5. THAT the Honourable Court be pleased to grant such other or further relief as
it may deem fit in the circumstances.

6. THAT the costs of these proceedings be borne by the Respondents and or as

may be ordered by the court.

AND WHICH APPLICATION is based on the following grounds THAT:-

a. The proceedings, findings and recommendations in the said report are a gross
travesty of justice as they have offended all possible principles of law, the
Constitution and County Assembly Standing Orders, practice and customs of
the Homa Bay County Assembly.

b. the 1st and 2nd Respondents’ conduct in the process leading to the decision and
adoption of the said report is manifestly malicious, unlawful, unconstitutional,
un-procedural, inconsistent, contradictory and ultra vires the provisions and
procedure of the law in particular the Constitution of Kenya, 2010 and the
Homa Bay County Assembly Standing Orders, in particular Standing Orders
172, as well as section 15(6) of the County Assemblies Powers and Privileges

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Act, 2017, the Constitution and established practices, customs and traditions of
the County Assembly. The process and the report are both an unmitigated
illegality.

c. The 1st and 2nd Respondents’ decisions are unfair, discriminatory, arbitrary,
inconsistent, contradictory, malicious and capricious and offend the
presumption of innocence as enshrined in the Constitution.

d. The Respondents’ decisions are irrational, an abuse of power, oppressive,

punitive, grossly unlawful, actuated by political malice and vendetta and
against the legitimate expectation of the people of Homa Bay Ward and the
Applicant herein as the elected Member of County Assembly and immediate
Chairman of the Public Accounts and Investments Committee.

e. The Respondents’ decisions are made for an illegal, improper motive and or for
selective extraneous purpose failing to take into account relevant factors and
provisions of the law on due process on the right to a just and fair hearing.

f. The decision to suspend the applicant herein shall adversely affects the people
of whom he represents in the County Assembly and such effects cannot be
compensated should this Honourable Court grant leave to operate as stay at
this leave stage.

g. It is in the interest of the people the Applicant represents for this Honourable
Court to allow the Applicant to continue accessing the precincts of the 1 st
Respondent and to contributes to the motions and Bills introduced thereon
which will have adverse effects to his constituents should he not be present.

h. The decision of the 1st and 2nd Respondent is not proportionate to the issues
raised on the impugned report and as such does not meet the proportionality
test under Article 24 of the Constitution of Kenya.

WHICH APPLICATION is further supported by the annexed supporting affidavit of

HON. MLACHAKE.

Dated at Nairobi this day of 2021

_______________________________
MLACHAKE & CO. ADVOCATES
ADVOCATES FOR THE APPLICANT

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DRAWN AND FILED BY:-

AKILI MINGI &CO ADVOCATES
NAIROBI

TO BE SERVED UPON:-_

1. COUNTY ASSEMBY
P.O. BOX 20 - 40300
HOMABAY

2. THE SPEAKER OF HOMA BAY COUNTY ASSEMBY

P.O. BOX 20 - 40300
HOMABAY

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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
JR APPLICATION NO. OF 2021

IN THE MATTER OF: ARTICLES 2, 3, 10, 19, 20, 23, 25, 27, 47,165(6),
258 AND 260 OF THE CONSTITUTION OF KENYA,
AND
IN THE MATTER OF: CONTRAVENTION OF RIGHTS AND FUNDAMENTAL
FREEDOMS
UNDER ARTICLES 2 (1), 3 (1) 10 (1) (2), 19 (2), 20 (2), 27 (1), 35 (1), 38(1) (2)
& (3), 47 (1) (2), 48, 50 (1) (2), OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: SECTIONS 4 AND 5 FAIR ADMINISTRATIVE ACTION
ACT NO. 4 OF 2015
AND
IN THE MATTER OF: STANDING ORDER NO. 49, 50 OF THE HOMA BAY
COUNTY ASSEMBLY STANDING ORDERS

BETWEEN
HON. JULIUS GAYA ………………...……………..………...........…….. APPLICANT
VERSUS
HOMA BAY COUNTY ASSEMBLY ……………......................… 1ST RESPONDENT
THE SPEAKER OF HOMA BAY COUNTY ASSEMBLY …….... 2ND RESPONDENT

SUPPORTING AFFIDAVIT

I, JULIUS GAYA of Post Office Box Number 10391 -00100, Nairobi do hereby make
oath and state as follows:
1. THAT I am an adult person of sound mind and disposition, the Applicant
herein, thus well versed with the facts hence competent to swear this
affidavit.

2. THAT I am a Member of County Assembly of Homa Bay County duly

elected to represent the people of Karachuonyo Central ward in the last
general election held on the 8th August, 2017.

3. THAT on or about 29th January, 2018 I was unprocedurally ejected from the
position of the Chairperson of the Public Accounts and Investment
Committee of Homa Bay County Assembly.
4. THAT following the said act on or about 16th February, 2018 I protested the
said move by the County Assembly to remove me from the said post
without following due process of law and which behaviour the 1st

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Respondent construed as a breach of privileges conferred to me as an

elected Member of the County Assembly.

5. THAT on 28th February 2018, I was locked outside and prevented from
accessing the Assembly due to my stand in fighting corruption within the
assembly. I protested the said move by the County Assembly to deny me
access without following due process of law and which behaviour the 2nd
Respondent construed as a breach of privileges conferred to me as an
elected Member of the County Assembly.

6. THAT the 1st Respondent through its Committee on Powers and Privileges
commenced proceedings against on the alleged misconduct which
according to them constituted a breach of privileges to a Member of County
Assembly. It is important to note that I was only invited to attend the
proceedings as a witness and not as an accused person under investigations.

7. THAT the proceedings, findings and recommendations in the said report

are a gross travesty of justice as they have offended all possible principles
of law, the Constitution and County Assembly Standing Orders, practice
and customs of the Homa Bay County Assembly.

8. THAT the 1st and 2nd Respondents’ conduct in the process leading to the
decision and adoption of the said report is manifestly malicious, unlawful,
unconstitutional, unprocedural, inconsistent, contradictory and ultra vires
the provisions and procedure of the law in particular the Constitution of
Kenya, 2010 and the Homa Bay County Assembly Standing Orders, in
particular Standing Orders 172, as well as section 15(6) of the County
Assemblies Powers and Privileges Act, 2017, the Constitution and
established practices, customs and traditions of the County Assembly. The
process and the report are both an unmitigated illegality. (Annexed hereto
and Marked JO -001 are copies of the Report of the Committee on Powers and
Privileges on the alleged breach of privileges by Hon. Julius Gaya and the Hansard
for the Homa Bay County Assembly debate for 21st March 2018).

9. THAT the 1st and 2nd Respondents’ decisions are unfair, discriminatory,
arbitrary, inconsistent, contradictory, malicious and capricious and offend
the presumption of innocence as enshrined in the Constitution.

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10. THAT the Respondents’ decisions are irrational, an abuse of power,

oppressive, punitive, grossly unlawful, actuated by political malice and
vendetta and against the legitimate expectation of the people of Homa Bay
Ward and the Applicant herein as the elected Member of County Assembly
and immediate Chairman of the Public Accounts and Investments
Committee.

11. THAT the Respondents’ decisions are made for an illegal, improper motive
and or for selective extraneous purpose failing to take into account relevant
factors and provisions of the law on due process on the right to a just and
fair hearing.

12. THAT the decision to suspend me shall adversely affects the people of
whom I represents in the County Assembly and such effects cannot be
compensated should this Honourable Court grant leave to operate as stay
at this leave stage.

13. THAT it is in the interest of the people I represents for this Honourable
Court to allow the me to continue accessing the precincts of the 1 st
Respondent and to contributes to the motions and Bills introduced thereon
which will have adverse effects to his constituents should he not be present.

14. THAT the decision of the 1st and 2nd Respondent is not proportionate to the
issues raised on the impugned report and as such does not meet the
proportionality test under Article 24 of the Constitution of Kenya.

15. THAT accordingly, it is now desirable that this court should intervene and
issue the orders sought in this case.

16. What is deponed to herein is true to the best of my knowledge, save as to

matters deponed on information, sources whereof have been disclosed, and
matters deponed on belief, grounds whereupon have been given.

SWORN at Nairobi )
by the said JULIUS GAYA )
this day of 2018 ) __________________
)
BEFORE ME )
)
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2024

)
)
COMMISSIONER FOR OATHS )

DRAWN AND FILED BY:-

LUMUMBA &AYIEKO ADVOCATES
17TH FLOOR, ICEA BUILDING, NORTH WING
KENYATTA AVENUE
P.O BOX 10391-00100
NAIROBI

TO BE SERVED UPON:-_

1. HOMA BAY COUNTY ASSEMBY

P.O. BOX 20 - 40300
HOMABAY

2. THE SPEAKER OF HOMA BAY COUNTY ASSEMBY

P.O. BOX 20 - 40300
HOMABAY

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Sample 2 – JR
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
MISC APPLICATION NO X OF 2024

IN THE MATTER OF ARTICLES 10, 23(3)(f), 47 and 50(1) OF THE

CONSTITUTION OF KENYA (2010)

AND

IN THE MATTER OF SECTIONS 4 & 5 OF THE FAIR ADMINISTRATIVE

ACTION ACT
AND
IN THE MATTER OF SECTIONS 8 & 9 OF THE LAW REFORM ACT
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW
ORDERS

BETWEEN

DAVID CLEVELAND – APPLICANT

VERSUS

ADVOCATES DISCIPLINARY TRIBUNAL – RESPONDENT

CHAMBER SUMMONS
“EX-PARTE”
(Under Order 53 Rule 1 of the Civil Procedure Rules, 2010)

LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers on the x
day of x 2024 at 9 O’clock in the forenoon or soon thereafter as counsel for the
Applicant may be heard for ORDERS THAT:

1. This application be certified as urgent and dispensed with in the first instance.
2. Leave be granted to apply for an order of certiorari to quash the decision of the
respondent directing the proceedings be based solely on filed affidavits
contrary to the Applicant’s right to cross-examine.
3. Leave be granted to apply for an order of mandamus compelling the
respondent to conduct themselves within their powers.
4. Leave so granted do operate as stay of the decisions and actions of the
respondent.
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5. The costs of this application be provided for.

WHICH APPLICATION is based on further grounds in the supporting affidavit of

DAVID CLEVELAND.

DATED at NAIROBI this x day of x 2024.

CHEMSHA BONGO LLP

ADVOCATES FOR THE APPLICANT

Drawn and filed by:

Chemsha Bongo LLP

P.O. Box 417871-00100
Nairobi, Kenya.

To be served upon:

Advocates Disciplinary Tribunal

P.O. Box 19877-00200
Nairobi, Kenya.

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KENTIENO
2024

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
MISC APPLICATION NO X OF 2024

IN THE MATTER OF ARTICLES 10, 23(3)(f), 47 and 50(1) OF THE

CONSTITUTION OF KENYA (2010)

AND

IN THE MATTER OF SECTIONS 4 & 5 OF THE FAIR ADMINISTRATIVE

ACTION ACT
AND
IN THE MATTER OF SECTIONS 8 & 9 OF THE LAW REFORM ACT
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW
ORDERS
BETWEEN

DAVID CLEVELAND – APPLICANT

VERSUS

ADVOCATES DISCIPLINARY TRIBUNAL – RESPONDENT

STATUTORY STATEMENT
(Under Order 53 Rule 2 of the Civil Procedure Rules, 2010)

A. NAME AND DESCRIPTION OF PARTIES

1. The Applicant is an adult of sound mind and an advocate of the High Court
whose address of service for purposes of this application is in the care of M/S
Chemsha Bongo LLP, P.O. Box 417871-00100, Nairobi.
2. The Respondent is the Advocates Disciplinary Tribunal, an independent body
established under the Advocates Act mandated to conduct disciplinary
proceedings regarding advocates’ conduct.

B. RELIEFS SOUGHT
3. The Applicant seeks the following orders:

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a) CERTIORARI to quash the decision of the respondent directing the

proceedings be based solely on filed affidavits contrary to the Applicant’s right
to cross-examine.
b) MANDAMUS to compel the respondent to conduct proceedings within its
powers under article 47 and 50 of the Constitution.
c) STAY of all decisions and actions of the respondent pending the hearing and
determination of this matter.

C. GROUNDS
4. The grounds upon which these reliefs are sought are as follows:
i. Unfairness - Violation of the right to fair hearing through denial of an
opportunity to cross-examine witness.
ii. Procedural impropriety - The respondents’ insistence on proceeding solely on
affidavits filed was procedurally improper.
iii. Illegality - The respondent’s decision to disregard the applicant’s right to
participate fully in his defence is a breach of fundamental laws on fair hearing.

DATED at NAIROBI this x day of x 2024

CHEMSHA BONGO LLP

ADVOCATES FOR THE APPLICANT

Drawn and filed by:

Chemsha Bongo LLP

P.O. Box 417871-00100
Nairobi, Kenya.

To be served upon:

Advocates Disciplinary Tribunal

P.O. Box 19877-00200
Nairobi, Kenya.

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KENTIENO
2024

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
MISC APPLICATION NO X OF 2024

IN THE MATTER OF ARTICLES 10, 23(3)(f), 47 and 50(1) OF THE

CONSTITUTION OF KENYA (2010)
AND
IN THE MATTER OF SECTIONS 4 & 5 OF THE FAIR ADMINISTRATIVE
ACTION ACT
AND
IN THE MATTER OF SECTIONS 8 & 9 OF THE LAW REFORM ACT
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW
ORDERS

BETWEEN

DAVID CLEVELAND – APPLICANT

VERSUS

ADVOCATES DISCIPLINARY TRIBUNAL – RESPONDENT

VERIFYING AFFIDAVIT
I, David Cleveland of P.O. Box 123-00100, Nairobi in the Republic of Kenya do take
oath and state THAT:

1. I am an adult male of sound mind thus competent to swear this affidavit.

2. I am the Applicant conversant with the facts of this matter.
3. I have read and understood the contents of this application and confirm the
same as true and correct.
4. What is deponed herein is true to the best of my knowledge and information.

SWORN by the said:

DAVID CLEVELAND

At NAIROBI

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2024

This x day of x 2024

Before me:

Commissioner for Oaths

CHEMSHA BONGO LLP

ADVOCATES FOR THE APPLICANT

Drawn and filed by:

Chemsha Bongo LLP

P.O. Box 417871-00100
Nairobi, Kenya.

To be served upon:

Advocates Disciplinary Tribunal

P.O. Box 19877-00200
Nairobi, Kenya.

161
KENTIENO
2024

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
MISC APPLICATION NO X OF 2024

IN THE MATTER OF ARTICLES 10, 23(3)(f), 47 and 50(1) OF THE

CONSTITUTION OF KENYA (2010)

AND

IN THE MATTER OF SECTIONS 4 & 5 OF THE FAIR ADMINISTRATIVE

ACTION ACT

AND

IN THE MATTER OF SECTIONS 8 & 9 OF THE LAW REFORM ACT

AND

IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW

ORDERS

BETWEEN

DAVID CLEVELAND – APPLICANT

VERSUS

ADVOCATES DISCIPLINARY TRIBUNAL – RESPONDENT

NOTICE OF MOTION
(Under Order 53, Rule 1 of the Civil Procedure Rules 2010)

TAKE NOTICE that the Honourable Court will be moved on the x day of x 2024 at 9
O’clock in the forenoon or soon thereafter for counsel for the Applicant to be heard on
ORDERS THAT:

1. This matter be certified as urgent and dispensed with in the first instance.
2. An order of certiorari to quash the decision of the respondent directing the
proceedings be based solely on filed affidavits contrary to the Applicant’s right
to cross-examine.
3. An order of mandamus compelling the respondent to conduct themselves
within their powers.

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4. Stay be granted on decisions and actions of the respondent.

5. The costs of this application be provided for.

WHICH APPLICATION is based on further grounds in the supporting affidavit of

DAVID CLEVELAND.

SWORN by the said:

DAVID CLEVELAND

At NAIROBI

This x day of x 2024

Before me:

Commissioner for Oaths

Drawn and filed by:

Chemsha Bongo LLP

P.O. Box 417871-00100
Nairobi, Kenya.

To be served upon:

Advocates Disciplinary Tribunal

P.O. Box 19877-00200
Nairobi, Kenya.

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16. Constitutional Litigation

(a) Determining constitutional question

Principle of Constitutional avoidance – “a court will not determine a constitutional
issue when the matter can be determined on other basis”. CCK v RMS

See Communication Commission of Kenya & 5 Others vs Royal Media Services Limited & 5
Others (2014) eKLR; Uhuru Kenyatta v Nairobi Star

Framing constitutional issue in litigation

Per Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR:

• Reasonable degree of precision

• Identify the provisions alleged
• Particulars of allegations

Per Annarita Karimi v R; Mumo Matemu v Trusted Society of Human Rights Alliance

• Precision in Pleadings – petitioner must clearly outline the specific provisions of

the Constitution that are alleged to have been violated.
• Specificity of Constitutional Violations – petitioner must specify the manner in
which the constitutional provisions have been violated. This involves detailing the
facts and circumstances that constitute the alleged violation.
• Adherence to procedural rules
• Evidence supporting allegations

(b) Locus Standi in Constitutional Litigation

Article 22 of the Constitution

Every person has the right to institute court proceedings claiming that a right or
fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is
threatened;

Court proceedings may be instituted by a person acting in their own interest or by:

• a person acting on behalf of another person who cannot act in their own name;
• a person acting as a member of, or in the interest of, a group or class of persons;
• a person acting in the public interest; or
• an association acting in the interest of one or more of its members

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Article 258 of the Constitution

Every person has the right to institute court proceedings, claiming that this
Constitution has been contravened, or is threatened with contravention.

Court proceedings may be instituted by a person acting in their own interest or by:

• a person acting on behalf of another person who cannot act in their own name;
• a person acting as a member of, or in the interest of, a group or class of persons
• a person acting in the public interest; or
• an association acting in the interest of one or more of its members.

(c) Jurisdiction in Constitution Litigation

Lilian S v Caltex Oil (Kenya) Ltd

"Jurisdiction is everything. Without it, a court has no power to make one more step.
Where a court has no jurisdiction, there would be no basis for a continuation of
proceedings pending other evidence. A court of law downs tools in respect of the
matter before it the moment it holds the opinion that it is without jurisdiction."

SK Macharia v KCB – A court’s jurisdiction flows from either the Constitution or

legislation, or both. When filing a suit, a party ought to identify the jurisdiction of the
court, which can be either territorial, subject-matter or pecuniary.

• Territorial jurisdiction – area to which the jurisdiction of the court extends. S15,
Civil Procedure Act.
• Pecuniary jurisdiction – maximum monetary value for the cases court can
entertain. S11, Civil Procedure Act; S 7 Magistrates Courts Act

Legal Framework

• Articles 162,163,164,165,169 & 170(5) of the Constitution

• Employment and Labour Relations Court Act – Section 12
• Environment and Land Court Act – Section 13
• Magistrate Court Act – Sections 6,7,8 & 9
• Kadhi’s Court Act
• Statutes establishing Tribunals e.g. Co-operative Society Act, Public
Procurement and Asset Disposal Act, Competition Act, Landlord and Tenant
(Shops, Hotels and Catering establishments) Act etc / Constitutional Tribunals
• Civil Procedure Act – Sections 11,12,13,14 & 15

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System of Art 162

Courts • Superior Courts – Supreme Court, Court of Appeal, High
Court.
• Establishment of ELRC (Art 162(2)(a)), ELC (Art 162(2)(b))
• Subordinate courts – Art 169

Supreme Art 163

Court • Composition – CJ, DCJ & 5 other judges
• Exclusive original jurisdiction – presidential election petition
under Art 140.
• Appellate jurisdiction – from CoA and various tribunals.
• CoA appeals – interpretation of the Constitution, matters of
general public importance.
• Advisory opinion – national government, state organ, county
government.

Court of Art 164

Appeal • Composition – not less than 12 judges.
• Appellate jurisdiction – cases from the High Court or tribunal

High Court Art 165

• Unlimited original jurisdiction in criminal and civil matters.
• Bill of rights
• Appeals from tribunals
• Interpretation of the Constitution
• Appeals from subordinate courts
• Supervisory jurisdiction over subordinate courts.

S 12, ELRC Act – original and appellate jurisdiction on ELR matters.

• Part IV, Employment Act – protection of wages.
• Part V, Employment Act – rights and duties in employment.
• Part VI, Employment Act – termination and dismissal.(S 45)
S 13, ELC Act – original & appellate jurisdiction on EL matters.
Karisa Chengo v R – ELC & ELRC as specialized courts.

Art 23(3) – Reliefs that can be offered

• A declaration of rights
• Injunction
• Conservatory order
• Declaration of invalidity of Law
• Compensation
• Judicial review

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Subordinate Art 169

Courts • Magistrates’ courts
• Kadhi’s courts – Art 170(5)
• Courts martial

Magistrates Magistrates Court Act

Courts S 6 – Criminal proceedings per the CrPC
S 7 – Pecuniary limits on Civil proceedings
• Chief Magistrate - 20M
• Senior Principal Magistrate - 15M
• Principle Magistrate – 10M
• Senior Resident Magistrate - 7M
• Resident Magistrate - 5M
S 8 – Human rights violations
S 9 – Employment, Labour Relations, Land and Environment

Small Small Claims Court Amendment Act, 2020

Claims • Pecuniary limit of 1 million – commercial matters.
Cout

Common Citations

Art 2 – Supremacy of the CoK

Art 10 – National values & principles of governance.

Art 19 – Provision for Bill of Rights.

Art 20 – Bill of rights applies to all persons & state organs.

Art 21 – Implementation of bill of rights: respect and fulfil rights and freedoms.

Art 22 – Right to institute proceedings: enforcement of Bill of rights (locus standi)

Art 23 – High Court to hear and determine applications on Bill of rights.

Art 25 – Rights that may not be limited (torture, slavery, fair trial, habeas corpus)

Art 27 – Equality and freedom from discrimination; equal protection and benefit of
the law.

Art 29 – Freedom and security of the person.

Art 33 – Freedom of expression.

Art 35 – Access to information.

Art 36 – Freedom of association

Art 37 – Assembly, demonstration, picketing and petition.

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Art 40 – Right to property.

Art 41 – Fair labour practices: fair remuneration, reasonable working conditions, trade
union, go on strike.

Art 47 – Fair administrative action.

Art 48 – Access to justice.

Art 50 – Fair hearing.

Art 162 – Establishment of a system of courts.

Art 165 – Jurisdiction of HC.

Art 232 – Values and principles of public service.

Art 258 – Enforcement of the Constitution.

Art 259 – Construing the Constitution; in a manner that upholds the rule of law.

(d) Practice Rules by the Chief Justice (Mutunga Rules)

Rule 10 – Form of petition

(2) The petition shall disclose the following—

• the petitioner’s name and address;

• the facts relied upon;
• the constitutional provision violated;
• the nature of injury caused or likely to be caused to the petitioner or the person
in whose name the petitioner has instituted the suit; or in a public interest case
to the public, class of persons or community;
• details regarding any civil or criminal case, involving the petitioner or any of
the petitioners, which is related to the matters in issue in the petition;
• the petition shall be signed by the petitioner or the advocate of the petitioner;
and
• the relief sought by the petitioner

Rule 11 – Documents to be annexed to affidavit or petition

(1) The petition filed under these rules may supported by an affidavit.
(2) If a party wishes to rely on any document, the document shall be annexed to the
supporting affidavit or the petition where there is no supporting affidavit

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(e) Consequences of non-compliance with the Rules

(f) Judicial review procedure vis-a-vis enforcement of constitutional rights

Art 23(3)(f) – JR as one of the remedies that can be offered in a petition

• Edwin Dande v Inspector General – merit review and JR as a constitutional

fundamental right.
• Saisi v DPP – judicial review courts have powers to interrogate both process
and merit review.

(g) Remedies
Remedies in Constitutional Litigation

Article 23 (3); CCK v RMS

“In any proceedings brought under Article 22, a court may grant appropriate relief,
including —

o a declaration of rights;
o an injunction;
o a conservatory order;
o a declaration of invalidity of any law that denies, violates, infringes, or
threatens a right or fundamental freedom in the Bill of Rights and is not
justified under Article 24;
o an order for compensation; and
o an order of judicial review

Structural Interdicts – Mitubell v Kenya Airports Authority.

“A structural interdict is a supervisory order through which a court controls

compliance with its order.”

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17. Costs

Legal framework
• Art 41(2) – right to fair remuneration
• Art 46 – consumer rights
• Section 44, Advocates Act – remuneration of Advocates
• Advocates Remuneration order

(a) Costs inter partes

Party and Party Costs – Costs payable as between the parties.

Advocate-Client Costs

By advocate to client

• Send a fee note – the demand

• Bill of costs – the suit

(b) Costs in interlocutory proceedings

Rule 54 of ARO

“In the absence of any express direction, costs of an opposed motion or other
application (other than an action) shall follow the event and shall be taxed as between
party and party”.

Order 51, Rule 11(2) CPR 2010

(2) Unless the court otherwise orders for special reasons to be recorded, costs awarded
upon an originating summons, applications or other process shall be taxed only at the
conclusion of the suit”.

Auto Springs Manufacturers Limited v Damisha Building Contractors Limited [2017]

eKLR- CoA

“It is trite law that unless the court directs the immediate taxation and payment of costs in an
interlocutory application, there should only be one taxation of costs at the tail end of a suit”.

Commercial Bank of Africa v Lalji Karsan Rabadi & 2 others(2012) eKLR

The rationale for taxing costs at the end of the trial is to avoid multiplicity of proceedings in
form of taxation which may lend themselves to references. The Court ought to avoid the
possibility of entertaining multiplicity of similar legal proceedings since such multiplicity has
the effect of allotting a case more judicial time and resources at the expense of other cases.
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(c) Costs in cause

The costs of the legal proceedings will be awarded to the party who ultimately
succeeds in the case. In other words, the decision on who will bear the legal costs is
deferred until the court has given a final ruling on the case.

Costs in any event – anti-thesis of costs in cause. Whatever orders as to costs are made
at the conclusion of a matter, the costs of a particular application will be paid as
directed by the court.

(d) Throw away costs

Thrown away costs – An award of costs that is meant to indemnify a party for costs
expended in proceedings giving rise to an interlocutory application in instances where
reasons underlying filing of the subject interlocutory application is justifiable.

Compensation. Happens where a party incurred costs they may not have incurred but
for some act or omission on the other party.

(e) Costs reserved

Costs reserved – an order that neither party is to pay costs pending the overall
outcome of the matter.

Order on costs is pegged on another act. Reserved until conclusion of the trial. Mary
Wambura Kiritu v Blueshield Insurance Company Limited

(f) No order as to costs

Neither party is awarded costs. Each party to bear its own costs.

(g) Counsel to pay costs

Costs by counsel

Exercise of court discretion, instances include:

• Order 32 Rule 2 – Where a suit is instituted by or on behalf of a minor without

a next friend the defendant may apply to have the suit dismissed with costs to
be paid by the advocate .
• Costs improperly incurred or without reasonable cause to be borne by
advocate personally (Rule 114 of COA)
• Court Order – Civil Appeal No. 12 of 2020, National Land Commission Vs.
Johnson Okiro Misiga (2021) eKLR
• Files frivolous applications not known in law.

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• Fails to inform other side of personal issues that would lead counsel to not
attend to a matter.

Applicant pleased that “mistake of counsel should not be visited on client”

(h) The taxation process

Factors courts should consider in awarding costs

In determining the issue of costs, the court is entitled to look at inter alia (Cecilia Karuru
Ngayu v Barclays Bank & Anor [2016] eKLR):

• The conduct of the parties

• The subject of litigation
• The circumstances which led to the institution of the proceedings
• The events which eventually led to their termination
• The stage at which the proceedings were terminated
• The manner in which they were terminated
• The relationship between the parties
• The need to promote reconciliation amongst the disputing parties pursuant to
article 159(2)(c) of the Constitution.

Factors to take into account before taxing of costs (review and assessment of costs)
(per Premchand Raichand Ltd & Another v Quarry Service of East Africa)

• Each case to be decided on its own merits and circumstances.

• Importance of case/matter – value of subject matter, interest of the parties,
conduct of the proceedings.
• Successful litigant ought to be fairly reimbursed for costs he has had to incur.
• Costs not to rise to levels that limit access to justice.
• General level of remuneration of advocates be such as to attract recruits to the
profession.
• Consistency in the awards made.
• Taxing officer’s discretion must be exercised judiciously and not whimsically.
• The court will only interfere when the award of the taxing officer is so high or
so low as to amount to an injustice to one party.

Circumstances when HC can interfere with the Taxing Officer’s exercise of

discretion

• Where the decision was based on an error of principle.

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• Where the fee awarded was manifestly excessive or inadequate as to justify an

inference that it was based on an error of principle.
• Where an error of principle to take into account irrelevant factors or to omit to
consider relevant factors, where relevant factors are:
✓ nature and importance of cause or matter;
✓ amount or value of subject matter involved;
✓ interests of the parties;
✓ general conduct of proceedings; and
✓ direction by the trial judge.

Security of costs
Order 26, CPR 2010

Rationale for security of costs is to ensure:

• That a party is not left with recompense for costs that might be awarded to him
in the event that the unsuccessful party is unable to pay the same due to
poverty.
• Ensures that a litigant who by reason of his financial inability is unable to pay
costs if he loses, is disabled from carrying on litigation indefinitely except on
conditions that they offer protection to the other party.

Usually allowed in election petitions, S78:

• 1 million – presidential
• 500k – MP, governor
• 100k – MCA

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18. Procedure before tribunals

(a) Business Premises Rent Tribunal

Establishment – Section 11, Landlord and Tenants Act.

Business Premises Rent Tribunal is established under Section 11 of the Landlord and
Tenants (Shops, Hotels and Catering Establishments) Act ,Cap .301 Laws of Kenya.

Composition – persons appointed by the Cabinet Secretary.

Powers – Section 12

• Determine whether or not any tenancy is a controlled tenancy

• Determine or vary rent payable.
• Apportion rent payment among tenants sharing occupation of premises.
• Fix the amount of service charge.
• Order for payment of arrears.
• Order landlord to make repairs.
• Authorize tenant to make repairs and deduct cost from rent.
• Permit the levy of distress for rent.
• Award compensation for unfair termination of controlled tenancy.
• Enter and inspect premises comprised in a controlled tenancy in respect of
which reference has been made to the tribunal.
• Investigate any complaint relating to a controlled tenancy.

(b) Rent Tribunal

Establishment

The Rent Restriction Tribunals are established under section 4 of the Rent Restriction
Act Cap 296 of the Laws of Kenya.

Composition

• Chairperson
• Deputy Chairperson
• 2 members selected by the Permanent Secretary to the Ministry

Jurisdiction – S 5, Rent Restriction Act

• To determine disputes between landlords and tenants for dwelling houses which
have standard rent not exceeding Kshs 2,500
• Assessment and determination of standard rents of residential premises.
• Fix date of which standard rent is payable.
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• Fix the amount of service charge – water, light, electricity, security.

• Order landlord to carry out repairs.
• Authorize tenant to execute repairs and deduct costs from rent.
• Permit levy of distress for rent.
• Order a refund where need be.
• Investigation of complaints where the provisions of the Rent Restriction Act have
been flouted.

(c) National Environmental Tribunal

Establishment

Established under section 125 of the Environmental Management and Coordination

Act (EMCA).

Its principal function is to receive, hear and determine appeals arising from decisions
of the National Environment Management Authority (NEMA) on issuance, denial or
revocation of environmental impact assessment (EIA) licenses, among other decisions.

Composition – S 125(1), EMCA

• A person nominated by JSC, qualified as a judge of the ELC.

• Advocate of the High Court nominated by LSK.
• Lawyer with special qualifications in environmental matters.
• 3 persons with demonstrated competence in environmental matters.

Proceedings – S 126, EMCA

• The Tribunal shall not be bound by the rules of evidence as set out in Evidence
Act.
• The Tribunal shall inquire into a matter brought before it and make an award.
• The Tribunal shall sit at such times and in such places as it may appoint.
• The proceedings of the Tribunal shall be open to the public save where the
Tribunal, for good cause, otherwise directs.

Jurisdiction – S 129, EMCA

The Tribunal has the mandate to determine:

• Hearing of appeals on environmental matters – denial of licenses, imposition

of license conditions by NEMA
• Giving NEMA directions on complex matters – involving points of law and
matters of unusual importance.

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• Power to appoint Environmental Assessors

• Hearing and determination of appeals on Forestry matters
• Hearing and determination of appeals on wildlife matters

Other tribunals

• Political Parties Dispute Tribunal

• Industrial Property Tribunal

Recourse for parties dissatisfied with orders by tribunal

• Stay of execution of order – certificate or urgency and notice of motion.

• File an appeal to High Court – memorandum of appeal.
• Judicial review proceedings – orders to quash decision.

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