REPUBLIC OF KENYA

IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT NAIROBI

MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 5790 OF 2003

ANNE MAKORI ………...……………………………..……..…….... PLAINTIFF

-VERSUS -

JAMES NDUNG’U NJOROGE …………..…………….…..….… DEFENDANT

REPLYING AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Plaintiff and I am duly authorised and competent to make this
Affidavit.

2) I have read and understood the contents of the Defendant’s Application

dated 1st July, 2004 and the Affidavit in support thereof sworn by the
Defendant on the same date (hereinafter referred to as “the Affidavit”) and
wish to state as follows;

3) The Plaintiff duly filed this suit against the Defendant on 17 th June, 2003
through our above mentioned firm (hereinafter referred to as “the firm”).

4) The Defendant Entered an Appearance and filed a Defence through the firm
of Susan Kahoya & Company Advocates (hereinafter referred to as “the
Defendant’s Advocates”).

5) It was clear from the Memorandum of Appearance filed by the Defendant’s

Advocates that service upon the Defendant was henceforth to be effected
through the said Defendant’s Advocates.

6) In reply to paragraphs 5 and 6 (c) of the Affidavit I therefore wish to state

that the firm was under no obligation to serve the Defendant personally and
that its obligation was discharged when the firm served the Defendant’s
Advocates with a Hearing Notice for the matter and an Affidavit of Service
has been duly filed to that effect.
 -2-
7) I also wish to point out that having not been served with an application by
the Defendant’s Advocates seeking to cease acting for the Defendant nor a
Notice of Intention to Act in person by the Defendant, the firm as the
Plaintiff’s Advocates could not enter into direct communication with the
Defendant, as that would have been unprocedural and unethical.

8) In reply to paragraphs 6(a) I wish to state that the failure by the insurance
company or the Defendant’s Advocate to defend the Defendant or update
him in anyway is a matter that is entirely between the Defendant and his
Advocates and his insurers.
9) It is therefore unfair to drag the Plaintiff into the housekeeping woes of the
Defendant and his Advocates and the same should be resolved at that level.
10) The correct channel the Defendant should follow is to pursue his Advocates
and insurers for failing to update him and for failing to accord him a chance
to defend himself without denying or delaying the Plaintiff her justice.
11) In reply to paragraph 6(b) of the Affidavit I wish to state that the Copy of
Records produced by the Plaintiff as PExb 7 in Court was a true copy being
an original copy issued by the Registrar of Motor Vehicles and showing that
the Defendant was indeed the registered owner.
12) However even if the Defendant were to prove that he was not the registered
owner of the vehicle he still cannot escape liability as he was also the driver
of the said motor vehicle at the time of the accident. This is clearly
indicated in the Police Abstract produced as Plaintiff’s Exhibit 1 by the
Plaintiff at the trial.
13) Further the Defendant himself in paragraphs 4 and 6(a) confirms that the
insurers of the motor vehicles actually undertook the trouble to instruct
Advocates to defend him. The Defendant has not explained to this Court on
what basis the insurers defended him.
14) However, if the insurers took time to instruct an Advocate defend the
Defendant it is evidently clear that the Defendant was a recognised party
under the policy and therefore either he was the owner or the driver/servant
or agent of the owner of the said motor vehicle.
15) In paragraph 5 of the Plaint it is clear that the Plaintiff sued the Defendant
both as the owner and driver and all the Defendant has tried to show is that
he was not the owner but he has not shown that he was not the driver.
16) It is therefore my humble submission that either way the Defendant cannot
exonerate himself from liability and especially in view of the fact that the
police abstract clearly blames the driver of KPK 419 for the accident.
 -3-

17) It is my humble submission that the Defendant is properly joined as a

Defendant and if he is not liable vicariously then he is liable personally.
18) In the circumstances I do pray that the Defendant’s Application be dismissed
as it lacks merit and is an abuse of the Court Process and is only intended to
delay the Plaintiff’s justice. In any event the Defendant has not annexed a
copy of the draft Defence as is indicated in paragraph 7 of the Affidavit.
19) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2004 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
)

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/814)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 5979 OF 2001

KENYA LITHO LIMITED …………………………..……..…….... PLAINTIFF

-VERSUS -

RICHARD KIPKOROS KANDIE ………..…………….…..….… DEFENDANT

REPLYING AFFIDAVIT

I, Brenda Njoki Kamau of Post Office Box Number 51385, 00200 - Nairobi in the
Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Plaintiff and I am duly authorised and competent to make this
Affidavit.

2) I have read and understood the contents of the Defendant’s Chamber

Summons Application dated 6th July, 2004 and wish to state as hereunder;

3) The Plaintiff herein filed suit on 21 st August, 2001 the Defendant was
personally served with the Plaint through our office and Summons to Enter
Appearance. The Defendant then filed a Memorandum of Appearance on
25th September, 2001. Annexed hereto is a copy of the Affidavit of Service
marked as exhibit “BNK-1”.

4) After filing the Memorandum of Appearance the Defendant did not file any
Defence. The Plaintiff through our office then filed a Request for
Judgement on 16th October, 2001 and Interlocutory Judgement was entered
on 23rd October, 2001.

5) Formal proof hearing in this matter was then conducted on 23 rd January,

2003, the Defendant’s Advocate had also been served with a Hearing Notice
informing him of the said date though they did not attend. Annexed hereto
is a copy of the said Affidavit of Service marked as exhibit “BNK-2”.

6) Judgement in this matter herein was entered on 28 th January, 2003 in favour

of the Plaintiff for the sum of Kshs 217,483/00 together with costs and
interest.
 -2-
7) Since then the Defendant herein has not taken any steps to find out what
transpired in the matter and has all along been indolent. He has only re-
surfaced after being served with the Notice to Show Cause.

8) The Plaintiff herein through our office then made an Application for
Execution of the Decree on 10th March, 2003 but the same was not executed
as the Defendant/Judgement Debtor had no attachable assets.

9) The Plaintiff has made an Application for Execution by arresting and

committing the Defendant to civil jail dated 30 th April, 2004 which
application was granted by the Court on 1st July, 2004.

10) The Defendant has shown that all along he has not been interested in the
matter and has only filed the said application as a way of delaying the
Plaintiff from carrying out execution against him and thus preventing them
from enjoying what is rightfully theirs.

11) The Defendant herein has not been keen on this matter and even the
Application seeking to set aside Judgement has been brought to the Court
after unreasonable delay occasioned.

12) In this regard I pray that the Defendant’s Application be disallowed and the
Plaintiff be allowed to continue with execution.

13) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

BRENDA NJOKI KAMAU on )
)
)
)
this day of 2004 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
)
 -3-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/306)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 1062 OF 1989

AJAY G. VARA …..…………………………………..……..…….... PLAINTIFF

-VERSUS -

MARKET SERVICE STATION LIMITED …………...……… 1ST DEFENDANT

ASHWIN KUMAR JOTANGIA ….…………………...……… 2ND DEFENDANT

AFFIDAVIT

I, Steven Gatembu Kairu of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya practising as such in the name

and firm of Kairu & McCourt Advocates who have conduct of this suit on
behalf of the 1st Defendant herein and I am duly authorised to make this
Affidavit.

2. The Plaintiff herein filed suit against the 1st Defendant in 1989.

3. The firm of Kairu & McCourt took conduct of this suit on behalf of the 1 st
Defendant on 9th November, 1993.

4. The suit has not been set down for hearing since the last adjournment which
was on the 18th June, 2003.

5. Since then a period of one year has passed and the Plaintiff has not made any
effort to have the suit set down for hearing.

6. Further the Defendant is prejudiced by the fact that legal costs continue to
accrue.
 -2-

7. I make this Affidavit in support of the 1 st Defendant’s Application by way of

Notice of Motion seeking that this suit be dismissed for want of prosecution.

8. Save where the source of my information otherwise appears, I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
)
this day of 2004. )
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: M0154/005)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT THIKA
CIVIL SUIT NO. 867 OF 2000

MOHAMMED NDINA WANGECHI ……….……………………... PLAINTIFF

-VERSUS-

KAKUZI LIMITED ……...……………………………………..…. DEFENDANT

REPLYING AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendant and I am duly authorised and competent to make this
Affidavit.

2) I have read and understood the contents of the Plaintiff’s Application dated
22nd October, 2003 and wish to reply as hereunder;

3) The Plaintiff herein filed suit on 5th September 2000 the Defendant entered
appearance on 10th November, 2000 and filed their Statement of Defence on
20th November, 2000.

4) The matter was then set down for hearing on the 16 th July, 2002 but on
which day the hearing did not proceed as the Plaintiff’s Advocate sought an
adjournment on the basis that his client was not in Court. The matter was
therefore stood over generally and the Plaintiff condemned to pay Court
Adjournment Fees.
 -2-

5) On the 6th day of January we received an invitation letter to fix a hearing

date for the matter on 10th January, 2003. However on attending at the Thika
Law Court registry on the 10th January, 2003 no hearing date was given as
the Plaintiff had not paid the Court adjournment fees as ordered by the Court
on 16th July, 2002.

6) Since then the Plaintiff made no effort to set the matter down for hearing.

7) On the 13th of July, 2003 we filed our application seeking to dismiss the suit
for want of prosecution and which application was served on the Plaintiff ‘s
Advocates on record.

8) The said application came up for hearing d on the 30 th September, 2003 and
despite service having been effected upon the Plaintiff’s Advocate they did
not attend Court on the said day nor were any Grounds of Opposition or any
replying Affidavit filed. The Court proceeded to allow the said Application.

9) The Plaintiff’s Advocate has brought this Application seeking to reinstate

the suit ten months after the order dismissing the suit was given.

10) It is clear that the Plaintiff is not and has never been keen on this suit. This
is evident in the manner both the Plaintiff and his Advocate have handled
themselves.

11) The Plaintiff’s Advocate admits in paragraphs 10 and 11 of his Affidavit that
though aware of the Defendant’s application on 30 th September, 2003 he did
not attend Court.

12) The Plaintiff’s Advocate did not even bother to attend Court and try and
apply for an adjournment to enable him seek further instructions from his
client. The Advocate simply ignored the Application.
 -3-

13) Further the Plaintiff’s Advocate in paragraph 9 of his Affidavit admits that
he does not to date have his client’s instructions to prosecute this suit. This
clearly shows that the Plaintiff is not interested in this suit and beats the very
purpose of this application.

14) It is also clear from paragraphs 8, 9 and 11 of the Plaintiff’s Advocate’s

Affidavit that the Plaintiff is an extremely slippery person even his own
Advocates cannot trace him. It is also clear that he has even failed to pay his
Advocates their fees.

15) In the premises the contents of paragraph 13 of the Plaintiff’s Advocate’s

Affidavit cannot stand for its unlikely that the Plaintiff will pay the
Defendant’s costs if he cannot pay his own Advocates.

16) Consequently if this suit is reinstated the Defendant will be highly

prejudiced as it is likely to incur more costs for a suit which the Plaintiff
may never prosecute and a Plaintiff who will never pay its costs when the
circumstances so demand.

17) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2004 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
 -4-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/648)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
CIVIL SUIT NO. 2407 OF 1998

USHA MORJARIA T/A

OLKALOU AGENCIES …….…..………………...……...…..…….... PLAINTIFF

-VERSUS -

NISHMA INSURANCE AGENCIES LTD ………………....… 1ST DEFENDANT

INSURANCE COMPANY OF EAST AFRICA LIMITED ...... 2ND DEFENDANT

AFFIDAVIT

I, Steven Gatembu Kairu of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1) I am an Advocate of the High Court of Kenya working with the firm of

Kairu & McCourt Advocates who have conduct of this matter on behalf of
the 2nd Defendant and I am duly authorised and competent to make this
Affidavit.

2) The suit herein filed against the Defendants on 23rd April, 1998.

3) The 2nd Defendant entered Appearance on 5 th May, 1998 and duly filed their
Defence on 19th May, 1998.

4) The matter was last set down for hearing on 25 th November, 2002 on which
day it was stood over generally as the Plaintiff’s key witness was said to be
out of the country.

5) It is evident that the Plaintiff is not keen in prosecuting this suit

6) It is against the interests of justice to have this matter pending against the 2 nd
Defendant indefinitely.
 -2-

7) I make this Application in support of the 2 nd Defendant’s Application filed

herewith.

8) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
this day of 2004. )
)
Before Me )
)
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/474)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 1694 OF 2003

BERNARD MWANIKI WAMBUA .…...……………………..…..… PLAINTIFF

-VERSUS-

MIBISCO LIMITED ……………...………......…………….……... DEFENDANT

AFFIDAVIT

I, R. N. Mwangangi of Post Office Box Number 30376, 00100 - Nairobi, in the

Republic of Kenya do make Oath and state as follows:

1) I am the Manager Legal of The Jubilee Insurance Company Limited who are
the insurers of the Defendant Company and I am competent and authorised
to swear this Affidavit.

2) From the Court records, the Plaintiff herein filed this suit on 24 th February,
2004 against the Defendant and Summons to Enter Appearance were issued
by the Court on the same date.

3) Pursuant to which we instructed M/s Kairu & McCourt Advocates to file a

Memorandum of Appearance and Defence, which they duly did on behalf of
the Defendant on 16th April, 2004 and 28th April, 2004.

4) Based on perusal the Court records, paragraph 3 of the Defence did state that
the Plaintiff had previously filed a suit being CMCC No. 7384 of 2003 at the
Chief Magistrate’s Court in Nairobi and the said suit involved the same
parties and arose from the same cause of action as this one herein. Now
produced and shown to me is a copy of the Plaint in CMCC No. 7384 of
2003 marked as “RNM-1”.
 -2-

5) I am informed by my Advocates which information I verily believe to be

true that the said suit CMCC No. 7384 of 2003 already has Judgement on
record and the matter has been heard and finally settled.

6) Based on the Court records and due to the facts stated above the Plaintiff has
not taken any steps to prosecute this matter by setting it down for hearing.

7) I am informed by my Advocates which information I verily believe to true

that it is not fair for the Defendant to have this matter proceed at it is res
judicata.

8) I swear this Application in support of the Defendant’s Application to dismiss

the Plaintiff’s suit.

9) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
R. N. MWANGANGI on )
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), [File Ref: J0012/418(a)]
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 6340 OF 2002

EASTERN PRODUCE LIMITED …….………..…..…….…....…..… PLAINTIFF

- VERSUS -

DHANJI VAGHJI ……………...………………..……….…… 1ST DEFENDANT

DANIEL MUTHEMBA WAMBUA ….…………………..…. 2ND DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya solemnly make oath and state as follows:

1) I am an Advocate of the High Court of Kenya working with the firm of

Kairu & McCourt Advocates who have conduct of this suit on behalf of the
Plaintiff and I am duly authorised and competent to make this Affidavit.

2) We received instructions to file this suit from the Plaintiff which we duly
filed on 22nd August, 2002. The Summons to Enter Appearance were issued
on 22nd August, 2002.

3) The validity of the said Summons was duly extended to 22 nd August, 2003
pursuant to our application dated 5th August, 2003.

4) Upon the said extension our client instructed Investpot Insurance

Investigators to trace the whereabouts of the 1 st Defendant’s Director Mr
Navandra, who was previously said to be out of the country. Annexed
hereto is a copy of the letter dated 20 th September, 2003 marked as page 1 of
exhibit “VMM”.

5) The said Investigators reported back to our client vide a letter dated 15 th
October, 2003 stating that the said Mr Navanda was still out of the country.
 Annexed hereto is a copy of the letter dated 15 th October, 2003 marked as
pages 2 - 3 of exhibit “VMM”.

-2-

6) By a letter dated 24th June, 2004, our client informed us that the said
investigators were still yet to report on whether the said Mr Navanda was
back to the country and available for service of the summons to Enter
Appearance. Annexed hereto is a copy of the letter dated 24 th June, 2004
marked as page 4 of exhibit “VMM”.
7) The 2nd Defendant’s whereabouts are still yet to be determined to date.
8) Unless the Summons to Enter Appearance are extended it will not be
possible to effect service of the same upon the Defendants once traced
9) I swear this Affidavit in support of the attached application to extend the
validity of Summons to Enter Appearance to enable us trace the Defendants
and serve them.
10) Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.
11) I now produce exhibit “VMM”.
SWORN at NAIROBI by the said )
VALENTINE MWENDE MULWA on )
)
)
this day of 2004 . )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/682)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT THIKA
CIVIL SUIT NO. 1111 OF 2002

JULIUS NUTHU MWANGI .….…….…….……………..….....…..… PLAINTIFF

- VERSUS -

FRANCIS MUHORO GACHANJA ………...…...…….………..… DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya working with the firm of

Kairu & McCourt Advocates who have conduct of this suit on behalf of the
Plaintiff and I am duly authorised and competent to make this Affidavit.

2. This suit arises out of a road traffic accident which occurred on 1 st

December, 2001 involving motor vehicle registration numbers KAD 300J
and 110 UN 13K driven by one Ahmed Yassin H. A. Mwala. Annexed
hereto is a copy of the Police Abstract showing that the said motor vehicle
was being driven by the proposed Third Party at the time of the accident
marked as exhibit “VMM-1”.

3. The Defendant contends that the accident was occasioned or contributed to

by the negligence of the driver of motor vehicle registration number 110 UN
13K, Ahmed Yassin H. A. Mwala.

4. I verily believe it is just and proper that the driver of the said motor vehicle
110 UN 13K be joined in this suit by way of Third Party Proceedings to
facilitate the determination of the issue of liability.
 -2-

5. I make this Affidavit from information supplied to me by the Defendant the

truth of which I verily believe.

6. Save as hereinabove expressly admitted, I make this Affidavit from facts

within my own knowledge the truth of which I verily believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2004. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/804)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT GATUNDU
CIVIL SUIT NO. 220 OF 2004

NANCY NJERI MBURU ……………….……………....…...……… PLAINTIFF

- VERSUS -

KAKUZI LIMITED ……….…………….……..…………..……… DEFENDANT

AFFIDAVIT

I MWANGI KINGORI of Post Office Box Number 24, 01000 - Thika do hereby
make Oath and state as follows:

1) I am the Administrative Manager of the Defendant Company and I am

competent and authorised by the Defendant to make this Affidavit.

2) This suit was instituted on 1st March, 2004 by the Plaintiff. The claim
relates to an alleged accident on 6 th October, 2003 at the Defendant’s place
of work. Now produced and shown to me is a copy of the Plaint in the
above suit marked as pages 1 – 3 of exhibit “MK-1”.

3) At paragraph 9 of the Plaint in the above suit the Plaintiff pleads that there is
no other suit pending between the same parties relating to the same cause of
action.

4) There is pending before this Court Civil Suit No. 218 of 2004 between the
same parties relating to the same cause of action. Now produced and shown
to me is a copy of the Plaint and Defence in RMCC No. 218 of 2004 marked
as pages 4 – 8 of exhibit “MK-1”.

…/2
 -2-

5) I am advised by the Defendant’s Advocates on record Messrs Kairu &

McCourt Advocates and I verily believe the same to be true that it is not
permissible in law to have two suits pending between the same parties in
respect of the same cause of action. The pendency of the two suits is
oppressive to the Defendant and I humbly urge the Court to strike out the
above suit which I believe is frivolous, vexatious and an abuse of the process
of the Court.

6) Save where the source of my information otherwise appears, I make this

Affidavit from facts within my own knowledge, the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
MWANGI KINGORI on )
)
)
)
this day of 2004. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/879(a))
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 4115 OF 2001

RUTH WANJIRU KUNGU …………………………..……..…….... PLAINTIFF

-VERSUS -

JEREMIAH KIITI MUENDO …………..……………….…..….… DEFENDANT

REPLYING AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Plaintiff and I am duly authorised and competent to make this
Affidavit.

2) I have read and understood the contents of the Defendant’s Chamber

Summons and Affidavit in support thereof dated 20 th August, 2004 and wish
to state as follows;

3) The Plaintiff in this matter filed suit on 19 th June, 2004 and the Defendant
was personally served with the Plaint and Summons to Enter Appearance on
17th July, 2001 through the said Advocate’s office which he signed and
accepted and the Affidavit of Service was filed in Court on the 24 th August,
2004. Annexed hereto is a copy of the Affidavit of Service marked as
exhibit “JWN-1”.

4) The Defendant did not enter Appearance and neither did he file any Defence.

…/2
 -2-

5) The Plaintiff subsequently requested for Judgement to be entered in the

absence of the Defendant’s Memorandum of Appearance and Defence which
request was granted and judgement entered on 30 th August, 2001 against the
Defendant for Kshs 129,993/80 plus costs of the suit at Kshs 19,745/00.
Annexed hereto is a copy of the Decree and the Certificate of Costs marked
as exhibits “JWN-2”.

6) The Defendant was personally served with the Notice of Judgement on 11 th

January, 2001 and he again accepted service by signing the notice. Annexed
hereto is a copy of the said Notice of Judgement and a copy of the Affidavit
of Service marked as exhibits “JWN-3” and “JWN-4”.

7) The Plaintiff proceeded to execute the Judgement the Defendant was

personally served with the Notice to Show Cause dated 15 th November, 2002
on the 9th December, 2002 and yet again he accepted service of the Notice
and signed a copy of the Notice. Annexed hereto is a copy of the Notice to
Show Cause and a copy of the Affidavit of Service marked as exhibits
“JWN-5” and “JWN-6”.

8) On the 23rd January, 2003 the Defendant failed to appear in Court to Show
Cause why Warrants of Attachment should not issue and the Honourable
Court saw it fit to issue the Warrants of Attachment.

9) The Plaintiff’s Advocates instructed Messrs Whitestone Auctioneers (K) Ltd

to proceed with the Attachment of the debtors property which they lawfully
did on the 7th July, 2004.

10) In view of the foregoing the Defendant was clearly not interested in
defending himself and he has not put forward any viable reasons to set aside
the ex-parte Judgement which was properly entered against him.

…/3
 -3-

11) The Defendant is therefore rightly sued as the owner of KMB 774 and is
therefore liable.

12) The Defendant’s application is clearly intent on delaying the execution

process and thus denying the Plaintiff of his just rewards.

13) Further, the Defendant has not been keen on this matter as evidenced by the
inordinate delay it has taken him to file this Application.

14) In view of the aforementioned grounds I pray that this application be

disallowed and the Plaintiff be allowed to continue with execution.

15) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

16) I now produce exhibits JWN.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2004 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
)

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/299)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT LIMURU
CIVIL SUIT NO. 109 OF 2004

PETER WAMBUA NGUMBAO .……….………………..……...… PLAINTIFF

- VERSUS -

KARIRANA TEA ESTATE ……...........……..…….…….….....… DEFENDANT

AFFIDAVIT

I, Kevin Dermot McCourt of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:
1. I am an Advocate of the High Court of Kenya practising as such in the firm
of Kairu & McCourt Advocates who have conduct of this suit on behalf of
the Defendant and I am duly authorised and competent to swear this
Affidavit.
2. The Defendant Company intends to appeal from the judgement of this
Honourable Court delivered on the 29th July, 2004.
3. This suit was brought by the Plaintiff against the Defendant for injuries
allegedly sustained in a road traffic accident on or about the 14 th February,
2004.
4. In his Plaint the Plaintiff alleged that he sustained injuries “while in the
course of employment in the Defendant’s Company”.
5. The Plaintiff however, did not adduce any evidence to support his
allegations and therefore he failed to prove on a balance of probabilities that
he was injured while in the course of employment.
6. To the contrary the Defendant adduced evidence that the Plaintiff was
injured at his residence or any other place apart from the workplace.
7. The Honourable Court failed to take into account the Defendant’s evidence
as stated above which evidence was produced by Sister Monica Kimotho.
8. Further in accessing the award the Honourable Court failed to appreciate the
fact that the Defendant as sued, did not exist, which fact was duly brought
up by the Defendant in its Defence.
9. The Decree is for a substantial amount of money which if paid to the
Plaintiff who is tea-picker and in the event the Defendant’s Appeal does
succeed the Plaintiff would not be able to pay the Defendant and the
 Defendant would suffer substantial loss unless the stay of execution is
granted.
-2-

10. The Defendant’s appeal has good chances of success and annexed hereto is a
copy of the Memorandum of Appeal marked as exhibit “KDM - 1”.
11. That further the Defendant’s Advocates have by a letter dated 27 th April,
2004 to the Executive Officer applied for issue of copies of proceedings and
judgement to facilitate the intended Appeal. Now produced and shown to
me are copies of the said letters marked as exhibit “KDM - 2”.
12. The Defendant is willing to deposit in Court security for the due
performance of the Decree until determination of the Appeal.
13. I make this Affidavit in support of the Defendant Company’s application for
Stay of Execution pending hearing and final determination of the Appeal.
14. Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.
15. I now produce exhibits “KDM”.

SWORN at NAIROBI by the said )

KEVIN DERMOT McCOURT on )
)
)
this day of 2004. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/883)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT GATUNDU
CIVIL SUIT NO. 550 OF 2003

PETER WAMBUA .……….………………………....……..……...… PLAINTIFF

- VERSUS -

CIRIO DEL MONTE (K) LIMITED …….......…….......….….....… DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:
1. I am an Advocate of the High Court of Kenya practising as such in the firm
of Kairu & McCourt Advocates who have conduct of this suit on behalf of
the Defendant and I am duly authorised and competent to swear this
Affidavit.
2. The Defendant Company intends to appeal from the judgement of this
Honourable Court delivered on the 5th August, 2004.
3. I verily believe that the Appeal has high chances of success as shown by the
Memorandum of Appeal attached hereto.
4. This suit was brought by the Plaintiff against the Defendant for injuries
sustained in a road traffic accident on the 23rd June, 2003.
5. In his Plaint the Plaintiff alleged particulars of negligence by the Defendant
Company which relate to an industrial accident. However in his testimony
before Court the Plaintiff gives evidence relating to a road traffic accident.
6. Despite the above allegations of negligence by the Plaintiff the Plaintiff did
not produce any evidence to show along which road the accident had
occurred and he could not identify the agent and/or servant of the Defendant
Company for whom the Defendant is being held vicariously liable. And
further the Plaintiff could not even identify the motor vehicle that caused the
accident and no proof was adduced to show that the motor vehicle belonged
to the Defendant.
7. The Honourable Court failed to take into account the fact that no negligence
on the Defendant’s Company’s part had been proved on a balance of
probabilities and that the evidence given was incoherent and in line with the
Pleadings of the Plaintiff and too vague to support the Plaintiff’s claim.
 -2-
8. Further in assessing that the Defendant Company was liable to the Plaintiff
for general damages amounting to Kshs 100,000/00 this Honourable Court
in its Judgement failed to take into account that the evidence produced in the
Medical Report showed that the Plaintiff did not sustain the injuries he
pleads in the Plaint and further that the initial treatment notes indicate that
there was no visible injury seen by the doctor on examination.
9. The Decree is for a substantial amount of money which if paid to the
Plaintiff who is a casual labourer and the event the Defendant’s appeal does
succeed the Plaintiff would not be able to pay the Defendant and the
Defendant would suffer substantial loss unless the stay of execution is
granted.
10. The Defendant’s appeal has good chances of success and annexed hereto is a
copy of the Memorandum of Appeal marked as exhibit “VMM-1”.
11. That further the Defendant’s Advocates have by a letter dated 31 st August,
2004 to the Executive Officer applied for issue of copies of proceedings and
judgement to facilitate the intended Appeal. Annexed hereto is a copy of the
said letter marked as exhibit “VMM-2”.
12. The Defendant is willing to deposit in Court security for the due
performance of the Decree until determination of the Appeal.
13. I make this Affidavit in support of the Defendant Company’s application for
Stay of Execution pending hearing and final determination of the Appeal.
14. Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.
15. I now produce exhibit “VMM”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2004. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
 -3-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/420)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 10924 OF 2001

ASSOCIATED MOTORS LTD ……………….……………….….... PLAINTIFF

-VERSUS -
JEDDY CHEGE KAMAU ……………….…………….….……… DEFENDANT
AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:
1) I am an Advocate of the High Court of Kenya working with the firm of
Kairu & McCourt Advocates who have conduct of this suit on behalf of the
Plaintiff and I am duly authorised and competent to make this Affidavit.
2) The Plaintiff herein filed suit against the Defendant on the 13 th December,
2001.
3) Summons to Enter Appearance were issued by the Honourable Court on 13 th
December, 2001.
4) By a letter dated 21st December, 2001 the Plaintiff’s Advocates on record
instructed M/s Hegrome Trading and Investigators to carry out
investigations to determine the physical whereabouts of the Defendants to
enable them to effect service. Annexed hereto is a copy of the said letter
marked as exhibit “VMM-1”.
5) Subsequent thereto the said M/s Hegrome Trading and Investigators did by
their letters dated between 4th April, 2002 and 18th April, 2002 to the
Plaintiff’s Advocate advise them of the progress and difficulties made and
their intended course of action. Annexed hereto are copies of the letters
marked as exhibit “VMM-2”.
6) The said M/s Ms Hegrome Trading and Investigators did further with their
letter dated 18th October, 2002 advise that their attempts to trace the
Defendant were unsuccessful and so far that they were continuing on with
investigations. Annexed hereto is a copy of the said letter marked as exhibit
“VMM-3”.
7) Through an Application dated 2nd December, 2002 the Summons to Enter
Appearance were further extended by an Order of the Court.
 -2-

8) The said Messrs Hegrome Trading and Investigators tried to trace the
Defendant further but yet again were unable to do so and hence to serve her
with the Summons to Enter Appearance.
9) The said Summons expired on 5th February, 2004 but were unable to file this
Application to extend the same in good time due to a mix-up between our
office and that of the process server the Summons were misplaced.
10) The same have since been located.
11) The Plaintiff herein has all along been making determined efforts to trace the
Defendant’s whereabouts and to continue with this claim which is for a
substantial amount.
12) I make this Affidavit in support of the Plaintiff’s Application for extension
of validity of Summons to Enter Appearance.
13) Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.
14) I now produce exhibit “VMM”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2004. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/286)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 4115 OF 2001

RUTH WANJIRU KUNGU ………….…………....…………….…… PLAINTIFF

-VERSUS-

JEREMIAH KIITI MUENDO …….…………...…………....……... DEFENDANT

REPLYING AFFIDAVIT

I, R. N. Mwangangi of Post Office Box Number 30376, 00100 - Nairobi, in the

Republic of Kenya do make Oath and state as follows:
1. I am the Manager Legal of The Jubilee Insurance Company Limited who are
the insurers of the Plaintiff Company and I am competent and authorised to
swear this Affidavit.
2. I have read and understood the Defendant’s Application dated 23 rd
December, 2002 and the Affidavit in support thereof and I make this
Affidavit in opposition and in reply thereto.
3. The firm of Kairu & McCourt Advocates who we instructed to file suit did
so on 19th June 2004 and according to the Affidavit of Service sworn by
Erick Musau the Defendant was personally served with the Plaint and
Summons to Enter Appearance on 17th July, 2001 through the said
Advocate’s office which the Defendant signed and accepted the Affidavit of
Service was filed in Court on 24 th August, 2004. Annexed…….. marked as
exhibit “RNM”.
4. The Defendant did not enter Appearance and neither did he file any Defence.
5. Based on the Advocates Court record the Plaintiff’s subsequently requested
for Judgement to be entered in the absence of the Defendant’s Memorandum
of Appearance and Defence which request was granted and judgement
entered on 30th August, 2001 against the Defendant for Kshs 129,993/00
plus costs of the suit at Kshs 19745/00. Annexed hereto is a copy of the
Decree and the Certificate of Costs marked as exhibits “RNM-2”.
6. According to the Affidavit of Service the Defendant was personally served
with the Notice of Judgement on 11th January, 2001 and he again accepted
service by signing the notice. Annexed hereto is a copy of the said Notice of
 Judgement and a copy of the Affidavit of Service marked as exhibits “RNM-
3” and RNM-4”.
7. According to the Court records the Plaintiff’s Advocates proceeded to
execute the Judgement and according to the filed Affidvit
8. Contrary to well established doctrines the Defendant has failed to adduce
any evidence to prove that the Plaintiff would be incapable of repaying his
costs should his appeal succeed.
9. The Defendant is in no financial position to pay back the Plaintiff or furnish
security to Court the decretal sum as he testifies in his Supporting Affidavit
dated 23rd December, 2002 in paragraph 6.
-2-
10. That this Application is frivolous and an abuse of the Court Process.
11. Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
R. N. MWANGANGI on )
)
)
this day of 2004. )
Before Me )
)
)
COMMISSIONER FOR OATHS )
-3-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/299)
Wabera Street,
P. O. Box 51385,
Nairobi.
To Be Served Upon:
L. N. Ngolya & Company,
Advocates,
Mwalimu Centre (1st Fl.),
P. O. Box 1926,
Machakos.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 4588 OF 2004

RAMADHAN MAKOKHA MULONGO .…………..….……...…..…

PLAINTIFF

- VERSUS -

KENYA GRANGE VEHICLE INDUSTRIES LIMITED …….……

DEFENDANT

AFFIDAVIT

I, R. N. Mwangangi of P. O. Box 30376 Nairobi in the Republic of Kenya do

solemnly make Oath and state as follows: -

1. I am the Manager Legal of The Jubilee Insurance Company Limited who are
the insurers of the Defendant and I am therefore duly authorised and
competent to make this Affidavit.

2. This suit arises out of a road traffic accident which occurred on 17 th July,
2002 involving motor vehicle registration number KAN 228K belonging to
the Defendant and motor vehicle registration number KTM 861 owned by
one Sammy Okoth Opiyo. Annexed hereto is a copy of Records from the
Registrar of Motor Vehicles stating that the said motor vehicle belongs to
the proposed Third Party marked as exhibit “RNM-1”

3. The Defendant contends that the accident was occasioned or contributed to

by the negligence of the driver of motor vehicle registration number KTM
861, one Fredrick K. Busoro.

4. I verily believe it is just and proper that the owner and the driver of the said
motor vehicle registration number KTM 861 be joined in this suit by way of
 Third Party Proceedings to facilitate the determination of the issue of
liability.

-2-

5. I make this Affidavit from information supplied to me by the Defendant the

truth of which I verily believe.

6. Save as hereinabove expressly admitted, I make this Affidavit from facts

within my own knowledge the truth of which I verily believe.

SWORN at NAIROBI by the said

)
R. N. MWANGANGI on )
)
)
this day of 2004. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/440)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 4115 OF 2001
RUTH WANJIRU KUNGU ………….………………......…………….…… PLAINTIFF

-VERSUS-
JEREMIAH KIITI MUENDO …….…………...……………..…....……... DEFENDANT
REPLYING AFFIDAVIT

I, R. N. Mwangangi of Post Office Box Number 30376, 00100 - Nairobi, in the Republic
of Kenya do make Oath and state as follows:
1. I am the Manager Legal of The Jubilee Insurance Company Limited who are the
insurers of the Plaintiff Company and I am competent to swear this Affidavit.
2. I have read and understood the Defendant’s Application dated 20 th August, 2002
and the Affidavit in support thereof and I make this Affidavit in opposition and in
reply thereto.
3. The firm of Kairu & McCourt Advocates who we instructed to file suit did so on
19th June, 2001 and according to the Affidavit of Service sworn, the Defendant
was personally served with the Plaint and Summons to Enter Appearance on 17 th
July, 2001 through the said Advocate’s office which the Defendant signed his
acceptance and the Affidavit of Service, sworn by Erick Musau on 19 th July 2001,
was filed in Court on 24th August, 2001.
4. The Defendant did not enter Appearance and neither did he file any Defence.
5. Based on the Court record, the Plaintiff’s Advocate subsequently requested for
Judgement to be entered in Default, which request was granted and judgement
entered on 30th August, 2001 against the Defendant for Kshs 129,993/80 plus costs
of the suit at Kshs 19,745/00.
6. Based on the Affidavit of Service by Peter Mungai Matheri, sworn herein on 19 th
October 2001, the Defendant was personally served with the Notice of Judgement
on 11th January, 2001 and he again accepted service by signing the notice.
7. Based on information contained in the Affidavit of Service sworn herein by Peter
Mungai Matheri on the13th December 2002, the Defendant was personally served
with the Notice to Show Cause dated 15th November 2002, which he duly signed
acceptance. Now produced and shown to me is a copy of the Affidavit marked as
exhibit “RNM – 1”
8. Similarly, based on the Affidavit of Service sworn herein by Peter Mungai
Matheri on 16th January 2003, the Defendant was personally served with a Hearing
Notice dated 17th November, 2002 and yet again he accepted service of Notice and
signed it.
 -2-
9. I am informed by the said advocates, which information I verily believe to be true
that on the 23rd January 2003, the Defendant failed to appear in Court to Show
Cause why Warrants of Attachment should not issue and the Honourable Court
granted the Orders for the issue the Warrants of Attachment and Sale.
10. Messrs Whitestone Auctioneers (K) Ltd, the Court Brokers, lawfully proceeded
with the Attachment of the debtor’s property, on the 7th July, 2004.
11. In view of the foregoing, it is clear that the Defendant has all along known about
this suit and has not established a reason why a regular judgement should be set
aside.
12. The Defendant is guilty of laches as is evidenced by the inordinate delay it has
taken him to file this Application.
13. In any event according to the letter dated 24 th August 2004, which M/s Whitestone
Auctioneers forwarded to the said Plaintiff’s Advocate, the Defendant’s
Application has been overtaken by events and will serve no purpose. Now
produced and shown to me is a copy of the letter marked as exhibit “RNM-2”.
14. In view of the aforementioned reasons I pray that this Application be disallowed.
15. Save where the source of my information otherwise appears I make this Affidavit
from facts on record and within my own knowledge the truth of which I verily
believe.
16. I now produce exhibits “RNM”.

SWORN at NAIROBI by the said )

R. N. MWANGANGI on )
)
)
)
this day of 2004. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/299)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 290 OF 2002

SUPER EXPO LIMITED …………………………………...….…..… PLAINTIFF

- VERSUS -

MERCHANISED CARGO SYSTEMS LTD ……...………………. DEFENDANT

REPLYING AFFIDAVIT

I, Praful L. Shah of Post Office Box Number 1940, Kitale, in the Republic of
Kenya do make Oath and state as follows:

1. I am the Managing Director of the Plaintiff Company and I am competent to

swear this Affidavit.

2. I have read and understood the Defendant’s Application dated 30 th August,

2004 and the Affidavit in support thereof and I make this Affidavit in
opposition and in reply thereto.

3. The Defendant is appealing against a Judgement delivered by this

Honourable Court to the Plaintiff for Kshs 484,799/00.

4. The Defendant’s grounds of appeal do not in any way reveal any good
prospect of success.

5. The Defendant has failed to prove that he will suffer substantial loss should
the stay not be granted.

6. The Plaintiff is indisputably a well-established company with sound

financial reputation and is capable of repaying the Defendant’s costs should
any appeal preferred by them succeed.

…/2
 -2-

7. On the contrary the Defendant has failed to adduce any evidence in support
of its allegations that the Plaintiff Company would be incapable of repaying
its costs should the appeal succeed.

8. Further the Defendant Company has adduced no evidence that it is capable

of paying back to the Plaintiff or furnishing security to the Court as testified
in the supporting Affidavit.

9. That this Application is frivolous and an abuse of the Court Process.

10. Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
PRAFUL L. SHAH on )
)
)
)
this day of 2004. )
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: S0028/005)
Wabera Street,
P. O. Box 51385,
Nairobi.

…/3
 -3-

To Be Served Upon:
Nyaencha Waichari & Company,
Advocates,
New Hurlingham Plaza (3rd Fl.),
Argwings Kodhek Road,
P. O. Box 79630,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 12488 OF 2003

BENSON KYALO NGAO ………….………....…………..…………..

PLAINTIFF

-VERSUS-

CHARLES LEWIS ……………..……….……….……………….... DEFENDANT

AFFIDAVIT

I, R. N. Mwangangi of P. O. Box 30376 Nairobi in the Republic of Kenya do

solemnly make Oath and state as follows: -
1. I am the Manager Legal of The Jubilee Insurance Company Limited who are
the insurers of the Defendant and I am therefore duly authorised and
competent to make this Affidavit.
2. Based on information supplied to me by the Defendant and on the face of the
Police Abstract dated 28th July 2003 issued by the Base Commander Kajiado
the accident alleged in the Plaint arises out of a road traffic accident
involving motor vehicle registration number KSQ 607,TZF 982 4 and KAE
925A. Now produced and shown to me is a certified copy of the said Police
Abstract marked as page 1 of exhibit “RNM”.
3. The Defendant contends that the accident was occasioned or contributed to
by the negligence of the driver of motor vehicle registration number KAE
925A.
4. I am informed by the Defendant’s Advocates on record which information I
verily believe to be true that it is just and proper that the owner of motor
vehicle registration number KAE 925A should be joined in this suit by way
of Third Party Proceedings to facilitate the determination of the issue of
liability since the Defendant contends that the accident was caused by the
owner or authorised servant, driver and/or agent of the owner of the said
motor vehicle.

5. I am also informed by the said Advocates that they have obtained a search at
the Registrar of motor vehicles confirming that the motor vehicle at the time
of the accident was owned by one Masaku Auto Agencies Ltd. Now
 produced and shown to me is a certified copy of the said Search dated 12 th
August, 2004 marked as page 2 of exhibit “RNM”.

-2-

6. I make this Affidavit from information supplied to me by the Defendant and

its Advocates the truth of which I verily believe.

7. I now produce exhibit “RNM”.

SWORN at NAIROBI by the said )

R. N. MWANGANGI on )
)
)
this day of 2004. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/439)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 1872 OF 1998

JACOB OWUOCH ……………………..…….…………………. 1ST PLAINTIFF

PHILIP NDOLO ……………..……...……………….……..…… 2ND PLAINTIFF

-VERSUS-

ISAAC MUNGALE …….………………………..……..…………. DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1) I am an Advocate of this Honourable Court practising with the firm of Kairu

& McCourt Advocates who have conduct of this matter on behalf of the
Plaintiff and I am authorised and competent to make this Affidavit.

2) The Plaintiff herein filed suit on 27 th August 1998. The Defendant herein
was served with the Summons to Enter Appearance on 27 th January, 1999
and duly entered appearance on 27th January, 1999.

3) Thereafter the parties entered into negotiations in a bid to settle the matter
out of Court which did not proceed very far for they broke down.

4) The Plaintiff herein has never had the matter set down for hearing yet the
matter was filed in 1998.

5) Furthermore it has recently come to our attention that the Advocates who are
on record for the Plaintiff were suspended from the Roll of Advocates by the
Law Society of Kenya on ____________________________as seen in the
copy of Law of Society of Kenya Notices dated___________________
(December issue). This has now been confirmed by the Law Society of
Kenya in their letter dated __________________________
 -2-

Now produced and shown to me is a copy of the said Law Society of Kenya
Notice dated__________________ and a copy of the said letter from the
Law Society of Kenya marked as pages ______________ of exhibit “JWN”.

6) It is not right for the Defendant to have this matter hanging over his head
and the Plaintiff herein does not seem keen enough to prosecute the same.

7) I swear this Affidavit in support of the Defendant’s Application seeking for

dismissal of want of prosecution.

8) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
JOYCE WAMUCII NDUMIA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), [File Ref: I0015/510(b)]
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 8932 OF 2003

SAMUEL WAMBUGU ………….…..……..……...….………....… PLAINTIFF

-VERSUS -
WIGGLESWORTH EXPORTERS /AFCHEM LTD .…......… 1ST DEFENDANT
CHARLES WAINANA KARANJA ….……………..…….… 2ND DEFENDANT

AFFIDAVIT
I, I. R. Hodson of Post office 17648 Nairobi in the Republic of Kenya, do make
Oath and state as follows:
1. I am the Company Secretary of Wigglesworth Exporters Limited and duly
authorised and competent to swear this Affidavit.
2. Wigglesworth Exporters Limited is a registered company duly incorporated
in accordance with the provisions of the Companies Act, Cap 486, Laws of
Kenya in the name of Wigglesworth Exporters Limited and not
Wigglesworth Exporters /Afchem Ltd as sued. Now produced and shown to
me is a true copy of the certificate of incorporation marked Exhibit “IRH”.
3. The 1st Defendant as described in the Plaintiff’s Amended Plaint,
Wigglesworth Exporters Limited/Afchem Limited, is therefore a non
existent entity in so far as it relates to Wigglesworth Exporters Limited.
4. Further the said motor vehicle registration number KAL 509B alleged to
have caused an accident, is not owned by nor registered in the name of
Wigglesworth Exporters Limited. Wigglesworth Exporters Limited is
therefore a stranger to the facts alleged in the Amended Plaint in toto and
should therefore be struck out from the Plaintiff’s suit.
5. I swear this Affidavit in support of the Application to strike out the 1 st
Defendant from the Plaintiff’s suit.
 -2-

6. Save where the source of my information appears I make this Affidavit from
facts true of my own knowledge.
7. I now produce exhibit “IRH.”

SWORN at NAIROBI by the said )

I. R HODSON on )
)
this day of 2004. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/872)
Wabera Street,
P. O. Box 51385,
00200 - Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
CIVIL SUIT NO. 931 OF 2001

DISMAS ORODI MUBWEKA …….………………………….…..… PLAINTIFF

- VERSUS -

RAPID KATE SERVICES LTD. ……....…………..…..……..…… DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:
1. I am an Advocate of the High Court of Kenya practising as such in the firm
of Kairu & McCourt Advocates who have conduct of this suit on behalf of
the Defendant and I am duly authorised and competent to swear this
Affidavit.
2. The Defendant Company intends to appeal from the judgement of this
Honourable Court delivered on the 2nd September, 2004.
3. I verily believe that the Appeal has high chances of success as shown by the
Memorandum of Appeal attached hereto.
4. This suit was brought by the Plaintiff against the Defendant when the
Plaintiff was summarily dismissed by the Defendant on the 11 th September,
2000.
5. In his Plaint the Plaintiff alleged that his dismissal by the Defendant was
unilateral, arbitrary and unjustified.
6. This Honourable Court failed to take into account that the Plaintiff was
arrested by Police Officers on 4th March, 2000 following a robbery that
occurred at the Defendant Company. The Plaintiff was charged with
robbery and due to lack of evidence he was later released, although up to
that time he was never released on bail. He was in jail for a period of 7
months between March 2000 and September, 2000.
7. The law clearly provides that an Employee can be summarily dismissed if he
is arrested for a consignable offence punishable by imprisonment and is not
within ten (10) days either released on bail or bond or otherwise lawfully set
at liberty.
 -2-
8. Further the Plaintiff did not prove on a balance of probabilities malicious
prosecution on the part of the Defendant as the Plaintiff did not give
particulars of facts or matters upon which he relied on to show that the
Defendant acted maliciously.
9. The Defendant’s appeal has good chances of success and annexed hereto is a
copy of the Memorandum of Appeal marked as exhibit “VMM-1”.
10. That further the Defendant’s Advocates have by a letter dated 20 th
September, 2004 to the Executive Officer applied for issue of copies of
proceedings and judgement to facilitate the intended Appeal. Now produced
and shown to me are copies of the said letters marked as exhibit “VMM-2”.
11. The Defendant is willing to deposit in Court security for the due
performance of the Decree until determination of the Appeal.
12. I make this Affidavit in support of the Defendant Company’s application for
Stay of Execution pending hearing and final determination of the Appeal.
13. Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.
14. I now produce exhibit “VMM”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2004. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: R0027/044)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MACHAKOS
CIVIL SUIT NO. 963 OF 2001

PASCAL KILONZO .………..…….………...……………..…..…..… PLAINTIFF

- VERSUS -
TAKRIM BUS SERVICES LTD …...…………..……..…….… 1ST DEFENDANT
CFC BANK LTD ………………..………..……..…………..… 2ND DEFENDANT
KAMWENGA MAUCHA MAUCHI ………..…….…….…… 3RD DEFENDANT
AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows:

1. I am the Manager, Legal Services of the 2 nd Defendant Company and I am

competent and duly authorised to swear this Affidavit on its behalf.

2. The cause of action against the 2nd Defendant in this suit arose as a result of
an accident between motor vehicle registration number KAC 996Y and
KAG 895S in which the Plaintiff herein was driving his motor vehicle
registration number KAC 996Y on 13th November 1998.

3. The 2nd Defendant was a registered joint owner of the said KAG 895S as a
result of a Hire Purchase contract dated 11th May, 1996 where the 2nd
Defendant was to be the financier of motor vehicle registration number KAG
895S. Attached hereto is the said Hire Purchase Contract marked as exhibit
“RWK”.

4. I am informed by my Advocates on record which information I verily

believe to be true that in respect of the Hire Purchase Contract there was no
agency between the 1st Defendant and the 2nd Defendant and the only
relationship that existed out of the said contract was that of a financier and
Hirer and the 2nd Defendant was not to be held responsible for the day to day
running of the motor vehicle.
 -2-

5. The 2nd Defendant has been wrongly joined as an interested party to the suit
and should be struck out as a party the suit.

6. Save where the source of my information otherwise appears I make this

Affidavit from facts true of my own knowledge.

SWORN at NAIROBI by the said

)
RITA WAMBUI KURIA on )
)
)
)
this day of 2004. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: C0002/182)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT KIGUMO
CIVIL SUIT NO. 159 OF 2004

ANTHONY KYULI MUASYA .……...…………..………….…..… PLAINTIFF

-VERSUS-

BONIFACE PETER MAINA …….…..………..……….……... 1ST DEFENDANT

CFC BANK LIMITED ……..………......……….…….…..…... 2ND DEFENDANT

AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows:

1. I am the Manager, Legal Services of the 2 nd Defendant Company and I am

competent and duly authorised to swear this Affidavit on its behalf.

2. The cause of action against the 2nd Defendant in this suit arose as a result of
an accident between motor vehicle registration number KAQ 304M in which
the Plaintiff herein was allegedly a passenger veered off the road and
overturned on 7th July, 2003.

3. The 1st and 2nd Defendants had entered into a Hire Purchase Contract dated
5th March, 2003 where the 2nd Defendant was to be the Financier and 1 st
Defendant was the Hirer of motor registration number KAQ 304M.
Annexed hereto is the said Hire Purchase Contract marked as exhibit
“RWK”.

4. I am informed by my Advocates on record which information I verily

believe to be true that even if the Hire Purchase Contract still existed, there
would be no agency between the 1 st and 2nd Defendant as the only
relationship that would exist out of the said Hire Purchase Contract in that of
 a Hirer and Financier and the 2 nd Defendant was not to be held responsible
for the day to day running of the motor vehicle.

-2-

5. The 2nd Defendant has been wrongly joined as an interested party to the suit
and should be struck out as a party the suit.

6. Save where the source of my information otherwise appears I make this

Affidavit from facts true of my own knowledge.

SWORN at NAIROBI by the said

)
RITA WAMBUI KURIA on )
)
)
)
this day of 2004. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: C0002/189)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT KIGUMO
CIVIL SUIT NO. 160 OF 2004

GEOFFREY MUTUNGA KIOKO .……...…..……………….…..… PLAINTIFF

-VERSUS-

BONIFACE PETER MAINA …….…..………...….………... 1ST DEFENDANT

CFC BANK LIMITED ……..……......…………..….…..…... 2ND DEFENDANT

AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows:

1. I am the Manager, Legal Services of the 2 nd Defendant Company and I am

competent and duly authorised to swear this Affidavit on its behalf.

2. The cause of action against the 2nd Defendant in this suit arose as a result of
an accident that occurred when motor vehicle registration number KAQ
304M in which the Plaintiff herein was allegedly a passenger veered off the
road and overturned on 7th July, 2003.

3. The 1st and 2nd Defendants had entered into a Hire Purchase Contract dated
5th March, 2003 where the 2nd Defendant was to be the Financier and 1 st
Defendant was the Hirer of motor registration number KAQ 304M.
Annexed hereto is the said Hire Purchase Contract marked as exhibit
“RWK”.

4. I am informed by my Advocates on record which information I verily

believe to be true that even if the Hire Purchase Contract still existed, there
would be no agency between the 1 st and 2nd Defendant as the only
relationship that would exist out of the said Hire Purchase Contract is that of
 a Hirer and Financier and the 2 nd Defendant was not to be held responsible
for the day to day running of the motor vehicle.

-2-

5. The 2nd Defendant has been wrongly joined as an interested party to the suit
and should be struck out as a party the suit.

6. Save where the source of my information otherwise appears I make this

Affidavit from facts true of my own knowledge.

SWORN at NAIROBI by the said

)
RITA WAMBUI KURIA on )
)
)
)
this day of 2004. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), [File Ref: C0002/189(a)]
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO.E.J 775 OF 1999

THE JUBILEE INSURANCE COMPANY LIMITED ……………… PLAINTIFF

- VERSUS -
DAVID K. MWENJE T/A
PROTECTIVE GUARDS AND SECURITY SYSTEMS ….……... DEFENDANT

REPLYING AFFIDAVIT

I, SADRUDIN H. CHARANIA of Post Office Box Number 30376, Nairobi make

Oath and state as follows:-
1. I am the Property Manager of the Plaintiff Company and I am competent and
duly authorised to make this Affidavit.
2. I have read and understood the contents Defendant’s Application dated 29 th
September, 2004 and the Affidavit in support thereof and I make this
Affidavit in opposition and in reply thereto.
3. The firm of Kairu & McCourt Advocates who we instructed to file suit did
so on 17th August, 1999.
4. I am informed by our Advocates which information I verily believe to be
true that the Defendant failed to enter Appearance within the prescribed time
and the Plaintiff’s Advocates requested for Judgment in an Application
dated 15th October, 1999 and filed on 25th October, 1999. However the firm
of Maseki and Company Advocates entered appearance on behalf of the
Plaintiff and filed their Statement of Defence on 11th November, 1999.
5. I am informed by my Advocates on record which information I verily
believe to be true that the Defendant’s Advocates Messrs Maseki and
Company Advocates who are on record for the Defendant were served on
12th September, 2002 with a Hearing Notice dated 11 th September, 2003 after
filing their Defence on the 11th November, 1999 after numerous failed
attempts of having the matter set down for hearing.
6. I am further informed by my Advocates on record which information I verily
believe to be true that the Hearing of the matter took place on the 3 rd
October, 2002 when the Advocate for the Defendant appeared in Court and
sought leave of the Court to cease acting for the Defendant which
application was denied by the Magistrate, Mrs Omondi.
 -2-
7. I am also informed by our Advocates which information I verily believe to
be true that the scheduled Judgement was delivered on 30 th October, 2002 in
favour of the Plaintiff there was no appearance by the Defendant or his
Advocates.
8. That my Advocates also inform me which information I verily believe to be
true that the Plaintiff’s Advocates filed its application to execute against the
Defendant on 17th February, 2003 by way of attaching the Defendant’s
moveable property. However the Defendant resisted this even after
Warrants of Attachment were issued as the Defendant locked up and
abandoned the premises.
9. I am informed by my Advocates on record which information I verily
believe to be true that my Advocates then sought to execute against the
Defendant by applying to Court for attachment of 1/3 of the Defendant’s
parliamentary salary and Notice to Show Cause dated 26 th April, 2004 was
served upon the Defendant on 3rd May, 2004.
10. I am also informed by our Advocates which information I verily believe to
be true that the Defendant failed to attend Court on 7 th May, 2004 for the
hearing of the above said application upon which Warrants of Attachment of
1/3 of the Defendant’s parliamentary salary were issued.
11. I am further informed by my Advocates on record which information I verily
believe to be true that Messrs Gichigi Burugu and Company Advocates have
filed an Application to come on record for the Defendant which Application
has been stood over twice by the Court on the 24 th June, 2004 and 4th
August, 2004 with orders that the same be served on the Plaintiff’s
Advocates but Messrs Gichigi Burugu & Company Advocates have not up
to date served the same.
12. Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.
SWORN at NAIROBI by the said )
SADRUDIN H. CHARANIA on )
)
)
this day of 2004. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
 -3-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/236)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAKURU
CIVIL SUIT NO. 254 OF 1999

BEATRICE MUENI NGULI …...……………………….……....….... PLAINTIFF

-VERSUS -

SALOME KISANG KIGEN Sued as the Legal Representative of the Estate of

DAVID KIPKEMOI KIGEN (Deceased) ….….………………...… DEFENDANT

AFFIDAVIT

I S. A. WAKIAGA of Post Office Box Number 46143 Nairobi do hereby make

Oath and state as follows:

1) I am the Assistant Manager, Legal Affairs and Recoveries Section of Insurance

Company of East Africa the insurer of the Defendant Company and thus I
am duly competent and authorised to make this Affidavit.

2) The Insurance Company of East Africa Limited instructed Messrs Kairu &
McCourt Advocates to file this suit on behalf of their insured for the
recovery of costs incurred as a result of an accident between the insured’s
motor vehicle and the Defendant’s motor vehicle.

3) According to the Court records the suit was filed on 4 th February, 1999 and the
Defence was subsequently filed on 8th October, 1999.

4) The Advocates later found out that the Defendant had passed away and sought
to amend the Plaint to join in his legal representative.

5) The Plaintiff’s Application to amend was allowed and the Amended Plaint filed
on 28th August, 2000 and the Amended Defence was filed on 17 th September,
2001.

6) The suit then proceeded to hearing on 8 th February, 2002 and on 15th January,
2003 wholly the Plaintiff’s case was heard and closed.

7) The Plaintiff then made an application dated 5 th March, 2003 to further amend
the Plaint.
 -2-

8) According to the Court record the said application was allowed and an order
issued on 4th April, 2003 to that effect. Consequently the Further Amended
Plaint was filed in Court on the same date.

9) According to the Court records, the trail Magistrate was unable to proceed with
the Hearing of this matter whereupon the Plaintiff requested for typed
proceedings on 26th April, 2004.

10) According to the Court records as soon as the typed proceedings were ready
the Plaintiff Advocates proceeded to fix the matter for hearing.

11) According to the Affidavit of Service of Julius Kilei Mbunge dated 20 th

August, 2004 and 19th July, 2004 the Hearing Notices were served upon both
the Defendant’s Advocates and the Insurance Company.

12) I am informed by the Plaintiff’s Advocates that on the 1 st September, 2004

the hearing date, neither the Defendant nor his Advocates nor his Insurance
Company appeared in Court, whereupon the Court granted the Plaintiff’s
request to proceed ex-parte and the Judgement dated was given for 15 th
September, 2004.

13) According to the Court records this Honourable Court delivered Judgment
on the said date striking out the Plaintiff’s Further Amended Plaint and
dismissing the Plaintiff’s suit in whole.

14) I am informed by the said Advocates that this Judgement has been appealed
to in whole.

15) However should the Defendant decide to execute, the Plaintiff Appeal would
be rendered nugatory.

16) That the Plaintiff’s Appeal stands a high chance of success. Annexed hereto
is a filed Memorandum of Appeal marked as exhibit “SAW-1”

17) Further the Plaintiff’s Advocates have by a letter dated 28 th September, 2004
to the Executive Officer applied for issue of copies of Proceedings and
Judgment to facilitate the intended Appeal. Now produced and shown to me
is a copy of the said letter marked as exhibit “SAW-2”.

18) I make this Affidavit in support of the Plaintiff’s Application for Stay of
Execution pending hearing and final determination of Appeal.
 -3-

19) Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge, the truth of which I verily
believe.

20) I now produce Exhibit “SAW”.

SWORN at NAIROBI by the said

)
S. A. WAKIAGA on )
)
)
this day of 2004. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/499)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 7095 OF 2002

GILBERT WEKESA WAMALWA ………………….………..…..… PLAINTIFF

-VERSUS-

BAMBURI SPECIAL PRODUCTS LTD ………...………..……... DEFENDANT

AFFIDAVIT

I, Gerald Kimeu residing in Nairobi and of Post Office Box Number 30669, 00100
- Nairobi in the Republic of Kenya do make Oath and solemnly state as follows:

1) I am the Finance Manager in the Defendant Company, Bamburi Special

Products Limited and I am competent and duly authorised to swear this
Affidavit on its behalf.

2) This suit was filed on 11th September, 2002.

3) We instructed Messrs Kairu & McCourt Advocates to Enter Appearance and

file a Defence on our behalf which they did on the 14th October, 2002.

4) In the meanwhile we received communication from our contractors Surprise

Investments confirming that the Plaintiff was in his direct employment.
Attached find a copy of the said letter marked as exhibit “GK-1”.

5) We then forwarded the letter to Messrs Kairu & McCourt Advocates vide
letter dated 19th November, 2002 and instructed them to deal accordingly.

6) The Plaintiff has wrongly joined the Defendant in this suit.

7) I am informed by my Advocates which information I verily believe to be

true that the Plaint is fatally defective for failing to disclose a cause of action
against the Defendant.

8) That for this reason the suit is frivolous, vexatious and an abuse of the Court
process.
 -2-

9) We therefore ask this Court to allow this Application on the grounds stated
therein and to dismiss this suit accordingly.

10) Save where the source of my information otherwise appears I make this
Affidavit from facts true of my own knowledge.

SWORN at NAIROBI by the said

)
GERALD KIMEU on )
)
)
)
this day of 2004. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: B0006/006)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL SUIT NO. 1260 OF 2002

GEORGE GIKUBU MBUTHIA ....…...…...…………...….… PLAINTIFF/APPLICANT

-VERSUS-

PETER NJERU MUGO ……………………….….... 1ST DEFENDANT/RESPONDENT

GEOFFREY KARIUKI MWENDA …………….…. 2ND DEFENDANT/RESPONDENT
HON. ATTORNEY GENERAL …………...…….… 3RD DEFENDANT/RESPONDENT
CONSOLIDATED BANK OF KENYA LTD …...… 4TH DEFENDANT/RESPONDENT

REPLYING AFFIDAVIT

I, Mwinyi Faki Khatib of Post Office Box Number 62299 Nairobi in the Republic of
Kenya make oath and state as follows;

1) I am a Manager in the 4th Defendant/Respondent Company and I am competent

and duly authorized to swear this Affidavit on its behalf.

2) I have read and understood the contents of the Defendant’s Chamber Summons
Application dated 24th November 2004 and I make this Affidavit in opposition and
in reply thereto.

3) I am informed by the said advocates, which information I verily believe to be true,

that the Plaintiff/Applicant has a similar Application for stay pending in the Court
of Appeal, therefore in making this Application, the Applicant is asking the High
Court to predetermine the outcome of that case.

4) I am also informed by the said advocates, which information I verily believe to be

true that a similar Application filed by the same Applicant was dismissed by Hon
Justice Githinji, who Ruled on the 3rd December 2003 that a stay of execution in
relation to this matter can only be heard before a three judge bench.

5) I am further informed by the said advocates, which information I verily believe to

be true that Hon Justice Githinji further Ruled on the 20th of December 2003 that
the Applicant’s Certificate of Urgency dated 17 th December 2002 was an abuse of
court process.

6) I am informed by the said advocates, which information I verily believe to be true

that the Plaintiff/Applicant to date has been unable to successfully overturn the
Ruling of Hon. Justice Tank delivered on 10 th February 1992 and his Application
for stay against this Ruling was dismissed. I annex hereto the Court of Appeal
Ruling in Civil Application No. 36 of 1992 and mark it as exhibit “MFK1”.
 -2-
7) I am also informed by the said advocates, which information I verily believe to be
true, that since the Plaintiff/Applicant has been making numerous Applications to
the High Court and Court of Appeal in which he has lost, he should be made to
take responsibility for them by paying the costs he owes.

8) I am further informed by the said advocates, which information I verily believe to

be true, that the Plaintiff/Applicant is abusing the Court Process by raising issues
which are already the subject matter of another suit HCCC No.937 of 1986.
Therefore the Plaintiff/Applicant should await for the outcome of this case where
those issues will be decided upon.

9) I am informed by the said advocates, which information I verily believe to be true,

that the existence of the above suit and its subject matter means that there is no
probability of success of the Plaintiff/Applicant’s Appeal of Civil Suit. No. 1260
of 2002.

10) I am also informed by the said advocates, which information I verily believe to be
true, that the Plaintiff/Applicant has failed to raise any valid issues to prove that if
the execution occurs he is likely to suffer substantial loss.

11) I am further informed by the said advocates, which information I verily believe to
be true, that stay of execution should not be granted as the Plaintiff/Applicant can
be refunded the monies in question if the intended Appeal succeeds.

12) I am informed by the said advocates, which information I verily believe to be true,
that according to Order XLI Rule 5 of the Civil Procedure Act, if the Honourable
Court grants the stay of execution then the Plaintiff/Applicant should be made to
provide security

13) Save where the source of my information otherwise appears I make this Affidavit
from facts within my own knowledge the truth of which I verily believe.

14) I now produce exhibit “MFK 1”.

SWORN at NAIROBI by the said )

Mwinyi Faki Khatib on )
)
)
this day of 2004. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
 -3-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0002/241)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.

To Be Served Upon:
George Gikubu Mbuthia,
Tawakal Shopping Complex,
1st Avenue/5th Street Eastleigh,
P. O. Box 70063,
Nairobi.

Peter Njeru Mugo,

Cotts House (4th Fl.),
Wabera Street,
P. O. Box 4558,
00100 - Nairobi.

Geoffrey Kariuki Mwenda,

C/o L. R. Nairobi Block 73/225 – Buru Buru,
P. O. Box 39717,
00100 - Nairobi.

Hon. The Attorney General,

Attorney General Chambers,
Harambee Avenue,
P. O. Box 40112,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 1818 OF 2003
WEDUBE ESTATES LIMITED ………..……...…….………..…..… PLAINTIFF
-VERSUS-
DAVID ALOGO …………………………………………....……... DEFENDANT
AFFIDAVIT

I, Kevin Dermot McCourt of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:
1. I am an Advocate of the High Court of Kenya practising as such in the firm
of Kairu & McCourt Advocates who have conduct of this suit on behalf of
the Defendant and I am duly authorised and competent to swear this
Affidavit.
2. The said firm was instructed on or about 19 th March, 2003 to take up this
matter.
3. My firm last received communication from the Defendant in March 2004.
4. Since then the Defendant has failed to adequately instruct my firm. In view
of the foregoing it would be difficult to continue acting for the Defendant as
my firm lacks sufficient instructions.
5. I make this Affidavit in support of the Defendant’s Advocate’s Application
for leave to cease acting for the Defendant.
6. Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.
SWORN at NAIROBI by the said )
KEVIN DERMOT McCOURT on )
)
)
)
this day of 2004. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
 -2-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: A0012/001)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 6900 OF 2002

ROCXANAH WAIRIMU WARUKIRA ……………….………….... PLAINTIFF

-VERSUS -

CAROLINE MUTHONI GITONGA …..……….…..….….……… DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1) I am an Advocate of the High Court of Kenya and practising as such with

the firm of Kairu & McCourt Advocates who have conduct of this suit on
behalf of the Plaintiff and I am duly authorised and competent to make this
Affidavit.

2) The Plaintiff herein filed suit against the Defendant on the 6 th September,
2002.

3) Summons to Enter Appearance were issued by the Honourable Court on 6 th

September, 2002.

4) On 9th September, 2002 the Plaintiff’s Advocates instructed Messrs

Hegrome Trading and Investigators to serve the Defendant herein. Now
produced and shown to me is a copy of the said letter marked as exhibit
“VMM-1”.

5) The aforesaid Process Server were however unable to trace the Defendant
and returned the expired Summons unserved.
 …/2
-2-

6) On 4th September, 2003 we filed an Application to extend the Summons to

Enter Appearance which application was argued on 3rd October, 2003 and
the Honourable Court granted the Orders.

7) On 22nd August the Insurance Company of East Africa Limited being the
insurers of the Plaintiff and exercising their subrogation rights instructed
Invespot Insurance Investigators to trace the Defendants. Now produced and
shown to me is a copy of the said letter marked as exhibit “VMM-2”.

8) On 1st September, 2003 the said investigator’s prepared a report and

forwarded it to the insurance company under copy to the Plaintiff’s
Advocates stating that the Defendant had left the country. Now produced
and shown to me is a copy of the said report marked as exhibit “VMM-3”.

9) That since then the investigators have not advised us to whether they have
been able to trace the Defendants.

10) The Summons herein expired on 4th October, 2004. However due to a
mistake on my part I erroneously thought that the extension of Summons
was coming up for hearing on 3rd October, 2004. Only for the day to come
and for me to realise that the date was actually 3 rd October, 2003 and that the
Summons had since expired.

11) The Plaintiff through the insurance company has always been keen on
pursuing this matter and it was their intention that the Summons herein be
extended. This is evidenced by their constant correspondence to the
investigators vide letters dated 22nd September, 2003 and 9th September,
2004. Now produced and shown to me are copies of the said letters marked
as exhibit “VMM-4”.
 …/3
-3-

12) That the omission to file for an extension for validity of Summons was an
honest mistake on my part which is greatly regretted and that the
consequences thereof ought not be visited upon our clients who are still very
keen to pursue this matter.

13) The Plaintiff is still making determined efforts to trace the Defendant’s
whereabouts and to continue with this claim which is for a substantial
amount.

14) I make this Affidavit in support of the Plaintiff’s Application for extension
of validity of Summons.

15) Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.

16) I now produce exhibit “VMM”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2004. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/676)
Wabera Street,
P. O. Box 51385,
Nairobi.
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILILMANI COMMERCIAL COURTS
CIVIL SUIT NO. 56 OF 2001

DENNIS KAECH …….……………………….……...……..…….... PLAINTIFF

-VERSUS -

COME TO AFRICA SAFARIS (A FIRM) …………….…..….… DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1) I am an Advocate of the High Court of Kenya and practising as such with

the firm of Kairu & McCourt Advocates who have conduct of this suit on
behalf of the Plaintiff and I am duly authorised and competent to make this
Affidavit.

2) The Plaintiff herein filed suit against the Defendant on the 9th January, 2001.

3) Pursuant thereto the Defendant through their insurers instructed Messrs

Kairu & McCourt Advocates (hereinafter referred to as “the firm”) to enter
appearance and file a Defence on the Defendant’s behalf.

4) The firm filed a Memorandum of Appearance on 2 nd February, 2001 and

filed the Defence on 12th March, 2001.

5) The matter came up for hearing on 24 th June, 2003 but did not proceed as the
Plaintiff was not available.
6) It has been over one year since the suit was adjourned generally and the
Plaintiff has not taken any steps to fix the matter for hearing.

-2-

7) I make this Affidavit in support of the Application for dismissal of this suit
for want of prosecution.

8) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2004. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/666)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 6260 OF 2001
BULLEYS TANERRIES LTD .………………..………………….... PLAINTIFF
-VERSUS-
HARRIS HORN ……………………………….………………...… DEFENDANT
-AND-
JOSEPH KINUTHIA ……………………….…………..…… 1ST THIRD PARTY
SERENA HOTEL NAIROBI ………………..……………… 2ND THIRD PARTY
REPLYING AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1) I am an Advocate of the High Court of Kenya and practising as such with

the firm of Kairu & McCourt Advocates (hereinafter referred to as “the
firm”) who have conduct of this suit on behalf of the 1 st and 2nd Third Party
and I am duly authorised and competent to make this Affidavit.

2) I have read and understood the contents Plaintiff’s Application dated 18 th

August, 2004 and the Affidavit in support thereof and I make this Affidavit
in opposition and in reply thereto.

3) The Plaintiff herein filed suit against the Defendant on 30th August, 2001.

4) On 8th May, 2002 the Defendant issued a Third Party Notice pursuant to the
Order of the Court dated 2nd May, 2002 joining the 1st and 2nd Third Parties
to the suit.

5) An Application for directions on liability between the Third Parties and the
Defendant by the Defendant’s Advocate was scheduled for hearing on 15 th
September, 2002 and the Application was stood over generally.
 -2-

6) Between 23rd September and 8th October, 2003 the firm has sent numerous
correspondence to the Defendant’s Advocate seeking to know the position
on the matter.

7) On 11th December, 2002 and 20th June, 2003 the Defendant claimed that he
has not received instructions form his client.

8) It is well over two years since the matter was stood over generally and the
Defendant has not taken any steps to pursue the Third Party Proceedings.

9) In view of the foregoing I urge the Court to dismiss the application to

reinstate the suit filed on 19th August, 2004.

10) Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2004. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/386)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL SUIT NO. 64 OF 2002
ROSE NDUKU KING’OO ……………..…..…………………….. PLAINTIFF
-VERSUS-
CIRIO DEL MONTE KENYA LTD ……..………………….……DEFENDANT
- Consolidated with -

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL SUIT NO. 62 OF 2002

LUCY MWERU KIBAKI ………………..…..…………………….. PLAINTIFF

-VERSUS-

CIRIO DEL MONTE KENYA LTD ……..………………….……DEFENDANT

- And -

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL SUIT NO. 63 OF 2002

JOYCE MWIKALI METHO ……………..…..…………………….. PLAINTIFF

-VERSUS-

CIRIO DEL MONTE KENYA LTD ……..………………….……DEFENDANT

AFFIDAVIT

I Steven Gatembu Kairu residing at Nairobi and of Post Office Box Number
51385, Nairobi make Oath and say as follows:
1. I am a Partner in the firm of Kairu & McCourt Advocates having conduct of
this suit on behalf of the Appellant.
2. On 7th May, 2002 the Respondent’s filed in the High Court of Kenya at
Nyeri Civil Case No. 62 of 2002 seeking damages. Now produced and
shown to me are copy of the Plaintiff together with the Verifying Affidavit
in the said suits marked as pages ____ of exhibit “SGK-1”.
3. On the 23rd May, 2002 my firm entered appearance for the Defendants in the
said suit.
-2-
4. The Defendant/Applicant herein filed a Defence on 4 th June, 2002 in the said
suit.
5. On the 5th May, 2003 a Consent on liability at 95%:5% was recorded in
favour of the Plaintiff and the case were heard thereafter.
6. Written Submissions for this case were filed on 13th June, 2003.
7. On 27th July, 2004 this case came up for mention and HCCC No 62 of 2002
and HCCC No. 63 of 2002 were consolidated with HCCC No. 64 2002 and
were fixed for Judgement on 22nd October, 2004. Now produced and shown
to me is a copy of the Judgement marked as pages ____ of exhibit “SGK-1”.
8. On 28th October, 2004 the Appellant lodged a Notice of Appeal with the
Registrar of the High Court. Now produced and shown to me is a copy of
the Notice of Appeal marked as page ____ of exhibit “SGK-1”.
9. The Defendant’s/Applicant’s Appeal is arguable and has good prospects of
success as outlined in the Application filed herewith and the Appeal will be
rendered nugatory unless a Stay of Execution is granted.
10. Save where the source of my information otherwise
appears, I make this Affidavit from facts contained in the
Defendant/Applicant’s records the truth of which I verily believe.
11. I now produce exhibit “SGK-1”.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
this day of 2004. )
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), [File Ref: I0015/745(d), (e) and (f)]
Wabera Street,
P. O. Box 51385,
Nairobi.
-3-

To Be Served Upon:
Mbugua V. W. & Co.,
Advocates,
Uniafric House (4th Fl.),
Koinange Street,
P. O. Box 35033,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL SUIT NO. 62 OF 2002
LUCY MWERU KIBAKI ………………..…..…………………….. PLAINTIFF
-VERSUS-
CIRIO DEL MONTE KENYA LTD ……..………………….……DEFENDANT
- Consolidated with -
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL SUIT NO. 63 OF 2002

JOYCE MWIKALI METHO ……………..…..…………………….. PLAINTIFF

-VERSUS-

CIRIO DEL MONTE KENYA LTD ……..………………….……DEFENDANT

- And -

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL SUIT NO. 64 OF 2002

ROSE NDUKU KING’OO ……………..…..……………………….. PLAINTIFF

-VERSUS-

CIRIO DEL MONTE KENYA LTD ……..…………….…….……DEFENDANT

AFFIDAVIT

I Steven Gatembu Kairu residing at Nairobi and of Post Office Box Number
51385, Nairobi make Oath and say as follows:
1. I am a Partner in the firm of Kairu & McCourt Advocates having conduct of
this suit on behalf of the Appellant.
2. On 7th May, 2002 the Respondent’s filed in the High Court of Kenya at
Nyeri Civil Case No. 62 of 2002 seeking damages. Now produced and
shown to me are copy of the Plaintiff together with the Verifying Affidavit
in the said suits marked as pages ____ of exhibit “SGK-1”.
3. On the 23rd May, 2002 my firm entered appearance for the Defendants in the
said suit.
 -2-
4. The Defendant/Applicant herein filed a Defence on 4 th June, 2002 in the said
suit.
5. On the 5th May, 2003 a Consent on liability at 95%:5% was recorded in
favour of the Plaintiff and the case were heard thereafter.
6. Written Submissions for this case were filed on 13th June, 2003.
7. On 27th July, 2004 this case came up for mention and HCCC No 62 of 2002
and HCCC No. 63 of 2002 were consolidated with HCCC No. 64 2002 and
were fixed for Judgement on 22nd October, 2004. Now produced and shown
to me is a copy of the Judgement marked as pages ____ of exhibit “SGK-1”.
8. On 28th October, 2004 the Appellant lodged a Notice of Appeal with the
Registrar of the High Court. Now produced and shown to me is a copy of
the Notice of Appeal marked as page ____ of exhibit “SGK-1”.
9. The Defendants/Applicants Appeal is arguable and has good prospects of
success as outlined in the Application filed herewith and the Appeal will be
rendered nugatory unless a Stay of Execution is granted.
10. Save where the source of my information otherwise appears, I make this
Affidavit from facts contained in the Defendant’s/Applicant’s records the
truth of which I verily believe.
11. I now produce exhibit “SGK-1”.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
this day of 2004. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House, (6th Fl.), [File Ref: I0015/745(d), (e) and (f)]
Wabera Street,
P. O. Box 51385,
Nairobi.
 -3-

To Be Served Upon:
Mbugua V. W. & Co.,
Advocates,
Uniafric House (4th Fl.),
Koinange Street,
P. O. Box 35033,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL SUIT NO. 63 OF 2002
JOYCE MWIKALI METHO ……………..…..…………………….. PLAINTIFF
-VERSUS-
CIRIO DEL MONTE KENYA LTD ……..………………….……DEFENDANT
- Consolidated with -
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL SUIT NO. 62 OF 2002

LUCY MWERU KIBAKI ………………..…..…………………….. PLAINTIFF

-VERSUS-

CIRIO DEL MONTE KENYA LTD ……..………………….……DEFENDANT

- And -

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL SUIT NO. 64 OF 2002

ROSE NDUKU KING’OO ……………..…..……………………….. PLAINTIFF

-VERSUS-

CIRIO DEL MONTE KENYA LTD ……..…………….…….……DEFENDANT

AFFIDAVIT

I Steven Gatembu Kairu residing at Nairobi and of Post Office Box Number
51385, Nairobi make Oath and say as follows:
1. I am a Partner in the firm of Kairu & McCourt Advocates
having conduct of this suit on behalf of the Appellant.
2. On 7th May, 2002 the Respondent’s filed in the High
Court of Kenya at Nyeri Civil Case No. 62 of 2002 seeking damages. Now
produced and shown to me are copy of the Plaintiff together with the
Verifying Affidavit in the said suits marked as pages ____ of exhibit “SGK-
1”.
3. On the 23rd May, 2002 my firm entered appearance for
the Defendants in the said suit.
-2-
4. The Defendant/Applicant herein filed a Defence on 4 th
June, 2002 in the said suit.
5. On the 5th May, 2003 a Consent on liability at 95%:5%
was recorded in favour of the Plaintiff and the case were heard thereafter.
6. Written Submissions for this case were filed on 13 th
June, 2003.
7. On 27th July, 2004 this case came up for mention and
HCCC No 62 of 2002 and HCCC No. 63 of 2002 were consolidated with
HCCC No. 64 2002 and were fixed for Judgement on 22 nd October, 2004.
Now produced and shown to me is a copy of the Judgement marked as pages
____ of exhibit “SGK-1”.
8. On 28th October, 2004 the Appellant lodged a Notice of
Appeal with the Registrar of the High Court. Now produced and shown to
me is a copy of the Notice of Appeal marked as page ____ of exhibit “SGK-
1”.
9. The Defendant’s/Applicant’s Appeal is arguable and has
good prospects of success as outlined in the Application filed herewith and
the Appeal will be rendered nugatory unless a Stay of Execution is granted.
10. Save where the source of my information otherwise
appears, I make this Affidavit from facts contained in the
Defendant’s/Applicant’s records the truth of which I verily believe.
11. I now produce exhibit “SGK-1”.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
this day of 2004. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House, (6th Fl.), [File Ref: I0015/745(d), (e) and (f)]
Wabera Street,
P. O. Box 51385,
Nairobi.
-3-

To Be Served Upon:
Mbugua V. W. & Co.,
Advocates,
Uniafric House (4th Fl.),
Koinange Street,
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT GATUNDU
CIVIL SUIT NO. 828 OF 2004

OKINDA PAUL OTEMA .…………………..…..….…….……..………….. PLAINTIFF

-VERSUS-
R. H. DEVANI LIMITED …………..……..………..………….……….... DEFENDANT

AFFIDAVIT

I S. A. WAKIAGA of Post Office Box Number 46143 Nairobi do hereby make Oath and
state as follows:

1) I am the Assistant Manager, Legal Affairs and Recoveries Section of Insurance

Company of East Africa the insurer of the Defendant Company and thus I am duly
competent and authorised to make this Affidavit.

2) This suit was instituted on 28th July, 2004 by the Plaintiff on a claim which relates
to an alleged road traffic accident on 10th May, 2002 near Kenyatta University
which suit has not been disposed off.

3) Based on Court records, the Plaintiff in this suit had instituted an earlier suit at the
Nairobi Law Courts, Civil Suit No. 6598 of 2002, against the Defendant on 8 th
July, 2003. Now produced and shown to me is a copy of the Plaint in the said suit
marked as exhibit “SAW-1”.

4) According to the Court records the Plaintiff in the above suit alleged that he
sustained injuries arising out of an accident on 10 th May, 2002 along Thika Road
for which he held the Defendant liable.

5) Based on the Court records, the Plaintiff instituted this suit where he has made the
same claim for damages for personal injury arising from the same accident on 10 th
May, 2003 along Thika Road against the same Defendant as in SRMCC No. 6598
of 2003.

6) According to the Plaint in this file, the Plaintiff avers in paragraph 6 that there is
no other suit pending in this Honourable Court between the same parties, which
information is not true.
 -2-

7) I am advised by the Defendant’s Advocates on record in both suits, Messrs Kairu

& McCourt Advocates which information I verily believe to be true that it is not
permissible in law for this Court to proceed with this suit being the latter of the
two suits instituted by the Plaintiff.

8) I am further advised by the said Advocates that this suit is frivolous, vexatious and
an abuse of the Court process and the Plaint herein is fatally defective.

9) I swear this Affidavit in support of the Defendant’s Application herein to dismiss

this suit.

10) Save where the source of my information otherwise appears, I make this Affidavit
from facts within my own knowledge, the truth of which I verily believe.

11) I now produce exhibit “SAW”.

SWORN at NAIROBI by the said )

S. A. WAKIAGA on )
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/921)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT GATUNDU
CIVIL SUIT NO. 220 OF 2004

NANCY NJERI MBURU ……………….……………....…...……… PLAINTIFF

- VERSUS -

KAKUZI LIMITED ……….…………….……..…………..……… DEFENDANT

AFFIDAVIT

I MWANGI KINGORI of Post Office Box Number 24, 01000 - Thika do hereby
make Oath and state as follows:

7) I am the Administrative Manager of the Defendant Company and I am

competent and authorised by the Defendant to make this Affidavit.

8) This suit was instituted on 1st March, 2004 by the Plaintiff. The claim
relates to an alleged accident on 6 th October, 2003 at the Defendant’s place
of work. Now produced and shown to me is a copy of the Plaint in the
above suit marked as pages 1 – 3 of exhibit “MK-1”.

9) At paragraph 9 of the Plaint in the above suit the Plaintiff pleads that there is
no other suit pending between the same parties relating to the same cause of
action.

10) There is pending before this Court Civil Suit No. 218 of 2004 between the
same parties relating to the same cause of action. Now produced and shown
to me is a copy of the Plaint and Defence in RMCC No. 218 of 2004 marked
as pages 4 – 8 of exhibit “MK-1”.

…/2
 -2-

11) I am advised by the Defendant’s Advocates on record Messrs Kairu &

McCourt Advocates and I verily believe the same to be true that it is not
permissible in law to have two suits pending between the same parties in
respect of the same cause of action. The pendency of the two suits is
oppressive to the Defendant and I humbly urge the Court to strike out the
above suit which I believe is frivolous, vexatious and an abuse of the process
of the Court.

12) Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge, the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
MWANGI KINGORI on )
)
)
)
this day of 2004. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/879(a))
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT GATUNDU
CIVIL SUIT NO. 480 OF 2002

ISAAC KURIA MBURU …....…..……………..………..………….. PLAINTIFF

-VERSUS-

GARTON LIMITED …………………….…..…………………….. DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1) I am an Advocate of the High Court of Kenya working with the firm of

Kairu & McCourt Advocates who have conduct of this suit on behalf of the
Plaintiff and I am duly authorised and competent to make this Affidavit.

2) The Plaintiff herein filed suit against the Defendant on the 31st July, 2002.

3) Pursuant thereto the Defendants instructed Messrs Kairu & McCourt

Advocates to Enter Appearance and to file a Defence on their behalf which
they did on 16th December, 2002.

4) The matter was scheduled for hearing on 9 th September, 2003 and the parties
agreed to have the matter stood over to 4 th November, 2003 with a view of
recording a settlement.

5) The matter was last in Court on 9 th March, 2004 when it came up for
hearing.

6) The matter was stood over generally at a point of cross-examination to allow

the Plaintiff to amend the Plaint.

7) It is well over seven months since the suit was stood over generally and the
Plaintiff has not taken steps to amend the Plaint or to fix the matter for
hearing.
 -2-

8) In the premises the same ought to be dismissed with costs to the Defendant.

9) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2004. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/797)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 2963 OF 1993

MOFFAT NYAGA …………....…..……………..………..………….. PLAINTIFF

-VERSUS-

INSURANCE COMPANY OF (E. A.) LIMITED …………..…….. DEFENDANT

AFFIDAVIT

I S. A. WAKIAGA of Post Office Box Number 46143 Nairobi do hereby make

Oath and state as follows:

1) I am the Assistant Manager, Legal Affairs and Recoveries Section of

Insurance Company of East Africa the Defendant Company and thus I am
duly competent and authorised to make this Affidavit.

2) The Plaintiff herein filed this suit against the Defendant sometime in 1993.

3) I am informed by the our Advocates, Kairu & McCourt Advocates which

information I verily believe to be true that on 31st August, 1994 the said firm
entered appearance for the Defendant and filed a Defence on its behalf on 7 th
September, 1994.

4) I am also informed by our Advocates which information I verily believe to

be true that they took steps to ensure the nomination of an Arbitrator and
none was agreed upon until 12th April, 2000.

5) I am informed by the said Advocates that which information I verily believe

to be true that the parties tried negotiating but nothing came out of it.

…/2
 -2-

6) I am further informed by the Defendant’s Advocates which information I

verily believe to be true that the matter was last in Court on 22 nd September,
2003 whereby Plaintiff’s Advocate proceeded with an Application to have
the case transferred to Milimani Commercial Courts, without serving the
Defendant or its Counsel. The file was then given the reference number
herein.

7) It is well over a year since the matter was last fixed for hearing in Court and
no hearing date has been fixed since then.

8) In the premises the same ought to be dismissed for want of prosecution with
costs to the Defendant.

9) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said)

S. A. WAKIAGA on )
)
)
this day of 2005. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/797)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO.E.J 775 OF 1999

THE JUBILEE INSURANCE COMPANY LIMITED ……………… PLAINTIFF

- VERSUS -

DAVID K. MWENJE T/A

PROTECTIVE GUARDS AND SECURITY SYSTEMS ….……... DEFENDANT

REPLYING AFFIDAVIT

I, SADRUDIN H. CHARANIA of Post Office Box Number 30376, Nairobi make

Oath and state as follows:-
1. I am the Property Manager of the Plaintiff Company and I am competent and
duly authorised to make this Affidavit.
2. I have read and understood the contents Defendant’s Application dated 11 th
November, 2004 and the Affidavit in support thereof and I make this
Affidavit in opposition and in reply thereto.
3. I refer to my Affidavit made on 4th October, 2004.
4. I am further informed by my Advocates on record which information I verily
believe to be true that the Appeal has no merit and has little chance of
success as set out in paragraph 1 of our Grounds of Opposition herein.
5. I am also informed by our Advocates which information I verily believe to
be true that this Application is only an attempt to further delay execution of
the Judgement given on 30th October, 2002.
6. I am informed by my Advocates on record which information I verily
believe to be true that the execution of Decree seeks to attach 1/3 of the
Defendant’s and not his allowances, contrary to the Statement made by the
Defendant in paragraph 8 & 9 of his Supporting Affidavit dated 10 th
November, 2004.
7. I am also informed by our Advocates which information I verily believe to
be true that the Defendant’s offer to pay the security in instalments as stated
in paragraph 10 of the same Affidavit is a clear indication of the Defendant’s
financial instability as it shows that he cannot pay the full decretal sum in
one payment.
 -2-
8. I am further informed by my Advocates on record which information I verily
believe to be true that as stated in paragraph 3 of our Grounds of Opposition
herein the Defendant should be made to pay the full decretal amount as
security to us. We are an insurance company of good repute and would
therefore be in a position to refund the Defendant should he happen to win
the Appeal.
9. Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.
SWORN at NAIROBI by the said
)
SADRUDIN H. CHARANIA on )
)
)
this day of 2004. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/236)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. E. J. 199 OF 2000
CIRCUIT BUSINESS SYSTEMS LIMITED ………………………. PLAINTIFF
-VERSUS-
DAS AIR CARGO LIMITED .………..…………….…………. 1ST DEFENDANT
TRADEWINDS EXPRESS LIMITED ………..………………. 2ND DEFENDANT
RAPID KATE SERVICES LIMITED .….….…………………. 3RD DEFENDANT
AFFIDAVIT

I, Steven Gatembu Kairu of Post Office Box Number 51385, 00200 - Nairobi in the
Republic of Kenya make oath and state as follows;
1) I am a Partner in the firm of Kairu & McCourt Advocates having the conduct
of this suit on behalf of the 3 rd Defendant and I am competent and authorized
by the 3rd Defendant to make this Affidavit.

2) The Plaintiff herein filed this suit on 30th March 2000.

3) The Plaintiff has not taken any steps to prosecute this suit since the 3 rd
Defendant filed its Defence in May 2000.

4) I am informed by the 3rd Defendant and I verily believe the same to be true
that the delay in finalisation of the matter is prejudicial to the 3 rd Defendant
as a result of the increased legal costs and possible lapse in witness’s
memory.

5) I make this Affidavit in support of the Application for dismissal of the suit
for want of prosecution from facts contained in the Defendant’s file and the
truth of which I verily believe.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
this day of 200_)
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
 -2-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: R0027/043)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 1385 OF 2001

REGINA NAMATAKA BENNARS …………….……………....… PLAINTIFF

- VERSUS -

FARMERS CHOICE COMPANY LIMITED …..…………… 1ST DEFENDANT

DAVID MUHINDI MUTEGU ………………………………. 2ND DEFENDANT

REPLYING AFFIDAVIT

I S. A. WAKIAGA of Post Office Box Number 46143 Nairobi do hereby make

Oath and state as follows:
1) I am the Assistant Manager, Legal Affairs and Recoveries Section of
Insurance Company of East Africa the insurer of the Defendant Company
and thus I am duly competent and authorised to make this Affidavit.
2) I have read and understood the contents of the Defendant’s Chamber
Summons Application dated 29th October, 2004 and wish to state as
hereunder;
3) I am informed by the Defendants Advocates which information I verily
believe to be true that on 21st April, 2004 the matter was set down for
hearing on 27th and 28th October, 2004.
4) I am also informed by the Defendant’s Advocates which information I verily
believe to be true that on 27 th October, 2004 the Defendant’s Advocates
attended Court but the Plaintiff was not in Court.
5) I am informed by the Defendant’s Advocates that they applied for the
dismissal of the suit under Order IXB Rule 4 and the Honourable Court
granted this prayer.
6) I am advised by the Defendant’s Advocates and I verily believe the same to
be true that the Plaintiff’s Advocates had over 6 months between the date on
which the hearing was set and the hearing date itself and this is adequate
time to make proper and correct communication to the Plaintiff.
7) I am informed by the said Advocates that the Defendant’s witness Mr
Mudegu attended Court on that day and the Defendant’s Advocates were
ready to proceed.
 -2-
8) That the granting of this Application would occasion injustice on the part of
the Defendants.
9) Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge, the truth of which I verily
believe.
SWORN at NAIROBI by the said
)
S. A. WAKIAGA on )
)
)
this day of 2004. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/712)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 1226 OF 2002

SABINA MOCHAMA .……………………………………….…..… PLAINTIFF

-VERSUS-

JEVERIO NYANGWESO ………..…..…...…..……….……... 1ST DEFENDANT

AKAMBA PUBLIC ROAD SERVICES ……….…….…..…... 2ND DEFENDANT

SUPPLEMENTARY AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates (hereinafter referred to as “the firm”)
who have conduct of this suit on behalf of the Plaintiff and I am duly
authorised and competent to make this Affidavit.

2) I swear this Affidavit further to that sworn by myself on 30 th January, 2004

and in support of the Defendant’s Application dated 30th January, 2004.

3) The firm did by a letter dated 6 th January, 2004 write to the Registrar of
Motor Vehicles requesting for particulars of ownership of motor vehicle
registration number KZS 156 as at 22nd July, 1999. Now produced and
shown to me is a copy of the said letter marked as page 1 of exhibit “VMM”.

4) Thereafter the Registrar of Motor Vehicles issued a copy of records dated

21st January, 2004 showing that the registered owner of motor vehicle
registration number KZS 156 as at 22nd July, 1999 was one David Kipkoech
Tonui and Credit Africa Limited. Now produced and shown to me is a copy
of the said copy of records marked as page 2 of exhibit “VMM”.

…/2
 -2-

5) On 21st September, 2004 the firm also received a letter dated 9 th September,
2004 from Messrs Mokua & Co. Advocates the Plaintiff’s Advocates herein
onto which was annexed the Plaintiff’s support documents including a
Police Abstract dated 28th July, 1999 which shows that the accident, the
subject matter of this suit, involved motor vehicles registration numbers
KZS 156 and KAG 580J. Annexed hereto is a copy of the said letter and
support documents marked as pages 3 - 10 of exhibit “VMM”.

6) Save where the source of my information otherwise appears I make this

Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2004 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/400)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 7095 OF 2002

GILBERT WEKESA WAMALWA ………………….………..…..… PLAINTIFF

-VERSUS-

BAMBURI SPECIAL PRODUCTS LTD ………...………..……... DEFENDANT

AFFIDAVIT

I, Gerald Kimeu residing in Nairobi and of Post Office Box Number 30669, 00100
- Nairobi in the Republic of Kenya do make Oath and solemnly state as follows:
1) I am the Finance Manager in the Defendant Company, Bamburi Special
Products Limited and I am competent and duly authorised to swear this
Affidavit on its behalf.
2) This suit was filed on 11th September, 2002 against the Defendant by the
Plaintiff.
3) The Defendant instructed Messrs Kairu & McCourt Advocates to Enter
Appearance and file a Defence on our behalf which they did.
4) The Plaintiff’s suit is based on injuries that he allegedly suffered while in the
Defendant’s employment.
5) I wish to state that the Plaintiff has never been in our employment at any one
time.
6) Furthermore we have in the meantime received communication from our
contractors Messrs Surprise Investments confirming that the Plaintiff was in
their direct employment. Attached hereto is a copy of a letter from Messrs
Surprise Investments received by us marked exhibit “GK”.
7) We thereafter forwarded the said letter to our Advocates on record Messrs
Kairu & McCourt Advocates on 19th November, 2002.
8) I am informed by our said Advocates on record that in view of the fact that
the Plaintiff was never in the Defendant’s employment and in view of the
contents of the said letter that the Plaintiff has no cause of action against the
Defendant Company.
 -2-

9) I am further informed by the said Advocates that it is necessary to have the

Defendant Company struck off the suit and the Plaintiff enjoin the correct
Defendant to enable the Court adjudicate on the real issues in this matter.

10) I therefore do pray that this Honourable Court do allow this Application on
the grounds stated with costs of the Application and of the suit to the
Defendant.

11) Save where the source of my information otherwise appears I make this
Affidavit from facts true of my own knowledge.

12) I now produce exhibit “GK”.

SWORN at NAIROBI by the said

)
GERALD KIMEU on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: B0006/006)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(CENTRAL REGISTRY)
CIVIL SUIT NO. OF 200__
MUNGAI NGARUIYA &
ELIZABETH WANJIKU NGARUIYA ………..………………....... PLAINTIFFS
-VERSUS-

RAPHAEL NJAU …….............……….…………........……...... 1ST DEFENDANT

SIMON MUTISO ……............……….…………........……...... 2ND DEFENDANT
PETER MULI ……............……….…………........……..…….. 3RD DEFENDANT
JOHNSON MUTISYA ……....……….…………........……...... 4TH DEFENDANT
JOSEPH WAMBUA MUINDE ……...…………........……...... 5TH DEFENDANT
DANIEL KITHINZI ……........……….…………........……...... 6TH DEFENDANT
SYOMBUA WAMBUA …….……….…………........……...... 7TH DEFENDANT

SUPPORTING AFFIDAVIT

I, Mungai Ngaruiya a resident of Nairobi and of care of P.O. Box 75200, Nairobi
do make oath and swear: -

1. I am the Plaintiff herein and I am therefore competent to make this

Affidavit.

2. My wife Elizabeth Wanjiku Ngaruiya and I are the registered owners and
entitled to possession of the land situate North of Athi River Township and
known as L. R. Nos. 10426/16 and 10426/17 (“the Premises”) being the
premises comprised in Grants registered at the Land Titles Registry Nairobi
as I. R. Nos. 43879/1 and 43881/1 respectively. Now produced and shown
to me are copies of the Certificates of Titles marked as pages 1 - 8 of exhibit
“MN”.

3. The Premises comprise of approximately 40 acres of agricultural land in

respect of which my wife and I have commissioned a Horticultural Project
for the growing of french beans for export.
 -2-

4. In September 2004 I engaged Electrical and Industrial Controls Limited to

undertake supply and installation of electrical power supply pumps and
lighting of the premises in preparation of a Horticultural Project. Now
produced and shown to me is a copy of my letter dated 23 rd September, 2004
addressed to Electrical and Industrial Controls Limited and their response of
25th September, 2004 marked as pages 9 to 10 of exhibit “MN”.

5. In October 2004 I engaged Everest Enterprises Limited experts in

horticultural production and marketing to carry out a feasibility study for the
production of French Beans at the premises.

6. Based on the report I received from the said Everest Enterprises Limited I
entered into a contract with them under which I would produce French
Beans which they would purchase from me at the rate of Kshs 40/00 per
kilogram. Now produced and shown to me is a copy of a letter dated 4 th
October, 2004 addressed to me by Everest Enterprises Limited marked as
page 11 of exhibit “MN”.

7. The Defendants have wrongfully entered the premises and have wrongfully
planted vegetables and other crops thereon and have trespassed and are still
trespassing thereon.

8. Further the Defendants have prevented me from preparing the premises for
the implementation of a Horticultural Project. They have also interfered
with my fencing of the premises.

9. Despite my repeated requests to the Defendants to leave the premises they

have wrongfully failed and refused to desist of trespassing on the premises.
 -3-

10. I am in the circumstances unable to commence planting so as to be able to

harvest by March of the year 2005 and my wife and I stand to suffer
irreparable harm and substantial financial loss as set out in the Plaint filed
herein.

11. The Defendants’ acts have and still are depriving us of the full use and quiet
enjoyment of our said premises.

12. I swear this Affidavit in support of my Application to have the Defendants

by themselves, their servants or agents or otherwise howsoever from
remaining on or continuing to occupy, cultivate, interfere waste or in any
other way deal in the said parcel of land.

13. I make this Affidavit from facts known to me of my own knowledge the
truth of which we verily believe.

SWORN at NAIROBI by the said )

MUNGAI NGARUIYA on )
)
)
)
)
this day of 2004 )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: N0010/001)
Wabera Street,
P.O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDEMT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 11154 OF 1999

ESTHER AWOUR ONYANGO .……….…….………………..… 1ST PLAINTIFF

JOHN OUKO ABORI .………………………………………..…. 2ND PLAINTIFF

- VERSUS -

LONRHO HOTELS LTD ………….…..………………...…..……. DEFENDANT

AFFIDAVIT

I, Steven Gatembu Kairu of Post Office Box Number 51385-00200, Nairobi in the
Republic of Kenya make oath and state as follows;
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 11438 OF 2003

FRED ONGERA ONSONGO .………....…………………..…..…..… PLAINTIFF

- VERSUS -

FLAVIO TALDI ………………………….……..……..…….… 1ST DEFENDANT

ALEX KAMAU CHEGE ………….……..……..…………..… 2ND DEFENDANT
CFC BANK LTD ……………………………………………… 3RD DEFENDANT

REPLYING AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows that:

1) I am the Manager, Legal Services of the 3 rd Defendant Company and I am

competent and duly authorised to swear this Affidavit on its behalf.

2) I have read and understood the contents of the Defendant’s Application

dated 19th October, 2004 and the Affidavit in support thereof sworn by the
Fred Ongera Onsongo on the same date and wish to state as follows;

3) The intended 3rd Defendant was never the registered owner of motor vehicle
registration number KAH 656M and that the 3 rd Defendant has never had
any interest, whatsoever financial or proprietary in the said motor vehicle.

4) I can truly state that the 3rd Defendant Company herein does have a Hire
Purchase Agreement with the 2nd Defendant herein however the Agreement
is in respect of motor vehicle registration number KAR 656M and not KAH
656M. Annexed hereto is a copy of the Logbook in respect of motor vehicle
registration number KAR 656M marked as exhibit “RWK-1”.
 -2-

5) In view of the foregoing I wish to state that the copy of Search annexed in
paragraph 4 of the Plaintiff’s Affidavit does not reflect the true statement of
affairs as I knew them and that the same must be erroneous.

6) I am therefore opposed to the said copy of records and aver that the Plaintiff
do produce further evidence to support the claim that the 3 rd Defendant is in
fact a registered owner of motor vehicle registration number KAH 656M.

7) That what is deponed to herein is true to the best of my knowledge,

information and belief.

SWORN at NAIROBI by the said

)
RITA WAMBUI KURIA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/192)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 7194 OF 2002

TIBERIOUS ONSONGO .………..…….…………………..…..…..… PLAINTIFF

- VERSUS -

FLAVIO TALDI ………………………….……..……..…….… 1ST DEFENDANT

ALEX KAMAU CHEGE ………….……..……..…………..… 2ND DEFENDANT
CFC BANK LTD ……………………………………………… 3RD DEFENDANT

REPLYING AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows that:

1) I am the Manager, Legal Services of the 3 rd Defendant Company and I am

competent and duly authorised to swear this Affidavit on its behalf.

2) I have read and understood the contents of the Defendant’s Application

dated 19th October, 2004 and the Affidavit in support thereof sworn by the
Tiberious O. Onsongo on the same date and wish to state as follows;

3) The intended 3rd Defendant was never the registered owner of motor vehicle
registration number KAH 656M and that the 3 rd Defendant has never had
any interest, whatsoever financial or proprietary in the said motor vehicle.

4) I can truly state that the 3rd Defendant Company herein does have a Hire
Purchase Agreement with the 2nd Defendant herein however the Agreement
is in respect of motor vehicle registration number KAR 656M and not KAH
656M. Annexed hereto is a copy of the Logbook in respect of motor vehicle
registration number KAR 656M marked as exhibit “RWK-1”.
 -2-

5) In view of the foregoing I wish to state that the copy of Search annexed in
paragraph 4 of the Plaintiff’s Affidavit does not reflect the true statement of
affairs as I knew them and that the same must be erroneous.

6) I am therefore opposed to the said copy of records and aver that the Plaintiff
do produce further evidence to support the claim that the 3 rd Defendant is in
fact a registered owner of motor vehicle registration number KAH 656M.

7) That what is deponed to herein is true to the best of my knowledge,

information and belief.

SWORN at NAIROBI by the said

)
RITA WAMBUI KURIA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/193)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 1552 OF 2003

METHSELLA TITUS KINGOINA .….…………………..…..…....… PLAINTIFF

- VERSUS -

FLAVIO TALDI ………………………….……..……..…….… 1ST DEFENDANT

ALEX KAMAU CHEGE ………….……..……..…………..… 2ND DEFENDANT
CFC BANK LTD ……………………………………………… 3RD DEFENDANT

REPLYING AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows that:

1) I am the Manager, Legal Services of the 3 rd Defendant Company and I am

competent and duly authorised to swear this Affidavit on its behalf.

2) I have read and understood the contents of the Defendant’s Application

dated 19th October, 2004 and the Affidavit in support thereof sworn by the
Methsella Titus Kingoina on the same date and wish to state as follows;

3) The intended 3rd Defendant was never the registered owner of motor vehicle
registration number KAH 656M and that the 3 rd Defendant has never had
any interest, whatsoever financial or proprietary in the said motor vehicle.

4) I can truly state that the 3rd Defendant Company herein does have a Hire
Purchase Agreement with the 2nd Defendant herein however the Agreement
is in respect of motor vehicle registration number KAR 656M and not KAH
656M. Annexed hereto is a copy of the Logbook in respect of motor vehicle
registration number KAR 656M marked as exhibit “RWK-1”.
 -2-

5) In view of the foregoing I wish to state that the copy of Search annexed in
paragraph 4 of the Plaintiff’s Affidavit does not reflect the true statement of
affairs as I know them and that the same must be erroneous.

6) I am therefore opposed to the said copy of records and aver that the Plaintiff
do produce further evidence to support the claim that the 3 rd Defendant is in
fact a registered owner of motor vehicle registration number KAH 656M.

7) That what is deponed to herein is true to the best of my knowledge,

information and belief.

SWORN at NAIROBI by the said

)
RITA WAMBUI KURIA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/194)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 829 OF 2002

KENCELL COMMUNICATIONS LIMITED ……….……….....….... PLAINTIFF

-VERSUS -

MAGIC GENERAL CONTRACTORS LTD .………….……….… DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1) I am an Advocate of the High Court of Kenya working with the firm of

Kairu & McCourt Advocates who have conduct of this suit on behalf of the
Plaintiff and I am duly authorised and competent to make this Affidavit.

2) This suit was instituted on 15th May, 2002 in the name of Kencell
Communication Limited as it then was.

3) The Plaintiff Company has since changed its name to Celtel Kenya Limited.
Now produced and shown to me is a copy of the Certificate of Change of
Name marked as exhibit “JWN-1”

4) The said amendment proposed is necessary for the expedient disposal of this
suit.

5) I swear this Affidavit in support of the Application to amend the Plaint and I
pray that the same be allowed as per the Amended Plaint herein. Now
produced and shown to me is a copy of the amended Plaint marked as
exhibit “JWN-2”.

…/2
 -2-

6) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

7) I now produce exhibit “JWN”.

SWORN at NAIROBI by the said)

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/356)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
CIVIL SUIT NO. 931 OF 2001

DISMAS ORODI MUBWEKA …….………………………….…..… PLAINTIFF

- VERSUS -

RAPID KATE SERVICES LTD. ……....…………..…..……..…… DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 – Nairobi
in the Republic of Kenya solemnly make oath and state as follows:
1. I am an Advocate of the High Court of Kenya practising as such in the firm
of Kairu & McCourt Advocates who have conduct of this suit on behalf of
the Defendant and I am duly authorised and competent to swear this
Affidavit.
2. The Defendant Company intends to appeal from the Judgement of this
Honourable Court delivered on the 2nd September, 2004 and has to that end
filed a Memorandum of Appeal under High Court Civil Appeal 815 of 2004,
Nairobi.
3. The Defendant on 5th October, 2004 filed an Application for stay of
execution pending Appeal under Certificate of Urgency.
4. The Honourable court granted ex-parte Orders for stay on 5 th October, 2004
pending hearing of the inter-partes Application on 15th October, 2004.
5. On 15th October, 2004 the Plaintiff’s Advocates attended court and applied
for leave to file their Affidavit in Reply to the Defendant’s Application out
of time which leave was granted and the Application was stood over to 25 th
October, 2004 and Interim Orders for stay of execution were extended.
6. On 25th October, 2004 the Defendant’s Advocate applied for the Plaintiff’s
Affidavit in Reply to be expunged from record as the Plaintiff had failed to
 serve the same within the time stipulated by the Court Order of 15 th October,
2004 and the law.
7. The Court delivered its Ruling on the Application by Defendant’s Advocate
to expunge Plaintiff’s Affidavit on 4 th November, 2004 when the Court
ordered that the Affidavit be expunged from record. However, Interim
Orders were not extended.
-2-
8. At the Court’s Registry the Defendant’s Application has now been fixed for
hearing on 12th January, 2005.
9. In view of the fact that the hearing date is more than one (1) month away the
Plaintiff is likely to execute against the Defendant in absence of Interim
Orders for stay of execution.
10. Should the Plaintiff execute, the Defendant’s Application dated 4 th October,
2004 and the intended Appeal will be rendered nugatory.
11. I make this Affidavit in support of the Defendant’s Application for stay of
execution pending hearing and final determination of the Application dated
4th October, 2004.
12. Save where the source of my information otherwise appears I make this
Affidavit from facts on record the truth of which I verily believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2004. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: R0027/044)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(CENTRAL REGISTRY)
CIVIL SUIT NO. 1311 OF 2004

MUNGAI NGARUIYA &

ELIZABETH WANJIKU NGARUIYA …….....…………….…....... PLAINTIFFS

-VERSUS-

RAPHAEL NJAU …….............……….…....……........……...... 1ST DEFENDANT

SIMON MUTISO ……............……….…………........……...... 2ND DEFENDANT
PETER MULI ……............……….…………........……..…….. 3RD DEFENDANT
JOHNSON MUTISYA ……....……….…………........……...... 4TH DEFENDANT
JOSEPH WAMBUA MUINDE ……...………….........……...... 5TH DEFENDANT
DANIEL KITHINZI ……........……….…………........……...... 6TH DEFENDANT
SYOMBUA WAMBUA …….……….………….…....……...... 7TH DEFENDANT

SUPPLEMENTARY AFFIDAVIT

(Subject to leave of Court)

I, Mungai Ngaruiya a resident of Nairobi and care of Post Office Box Number
75200 Nairobi in the Republic of Kenya make oath and state as follows;

1) My wife and I are the Plaintiffs in this suit and I am competent and
authorised by my wife to make this Affidavit.

2) I have read and understood the Affidavit of Simon Mutiso sworn

herein on 6th December, 2004 and I make this Affidavit in reply.

3) The allegations that the copies of Grants are forgeries is totally

unfounded.
4) My wife and I purchased the properties from the Liquidator, Trust
Bank Limited pursuant to an exercise of Statutory Power of Sale. The Legal
Charge to Trust Bank Limited is clearly shown on the entries against the
Title. Now produced and shown to me are copies of the Transfers marked as
pages 1 to 10 of Exhibit “MN II”.

-2-
5) As regards the allegation that there is another suit filed in Machakos
being Civil Case Number 988 of 2004, I have obtained a copy of a Chamber
Summons and an Affidavit sworn by Simon Mutiso on 26 th October, 2004.
A copy of the Chamber Summons, Affidavit together with its exhibits are
now produced and shown to me and marked as pages 11 to 19. I am not a
party to that suit. There is however reference to my property in the
Affidavit. The claims made therein are clearly inconsistent with the claims
by the same Simon Mutiso in this case.
6) I am advised by my Advocates on record Messrs Kairu & McCourt
Advocates and I accept such advice as true that under Section 38 of the
Limitation of Actions Act (Cap 22) a person seeking to be registered as
Proprietor on grounds of adverse possession should apply to the High Court.
7) I have received letters from Solomon Mwangi, Alice Muthoni Justin
and Danson Mbithi Johna requesting me to grant them time to harvest their
crops and vacate the premises. Now produced and shown to me are copies
of the said letters marked as pages 20 to 22 of Exhibit “MN II”.
8) There is one disused borehole on the suit property. Based on my
experience, a person wishing to sink a borehole must apply to the Ministry
of Water for permission to do so, pay a fee, produce copy of the Title Deed
and a geological report. In the absence of any evidence by the Defendants
the allegations that “they erected the borehole” is unsupported.
9) The Defendants have cultivated small portions of the suit property and
have not had exclusive possession of the land.
10) My wife and I swore the Affidavit Verifying Plaint herein and the
Affidavit in support of the Application on 1 st December, 2004 and not 30th
November, 2004 as indicated thereon. The date, 30 th November, 2004, was
written in error and the Commissioner of Oaths Alice Ngulenywa has
confirmed this.
-3-

11) I am advised by my Advocates Messrs Kairu & McCourt Advocates

that the High Court has unlimited original jurisdiction and that Section 12 of
the Civil Procedure Act does not on the strength of the Court of Appeal
decision of Riddlesbarger and Another vs. Robson and Others [1958] E.A.
page 375, restrict the jurisdiction of the High Court.

12) I make this Affidavit from facts within my own knowledge the truth
of which I verily believe save where the source of my information other wise
appears.

13) I now produce Exhibit “MN II”.

SWORN at NAIROBI by the said )

MUNGAI NGARUIYA on )
)
)
)
)
this day of 2004 )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: N0010/001)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(CENTRAL REGISTRY)
CIVIL SUIT NO. 1311 OF 2004

MUNGAI NGARUIYA &

ELIZABETH WANJIKU NGARUIYA ……...……….…………….…....... PLAINTIFFS

-VERSUS-

RAPHAEL NJAU …….............……….……….....…….........……...... 1ST DEFENDANT

SIMON MUTISO ……............……….…………........…….………... 2ND DEFENDANT
PETER MULI ……............……….……...…........……..…………..... 3RD DEFENDANT
JOHNSON MUTISYA ……....……….…………........…………......... 4TH DEFENDANT
JOSEPH WAMBUA MUINDE ……...………….....………..……...... 5TH DEFENDANT
DANIEL KITHINZI ……........……….……………...…........……...... 6TH DEFENDANT
SYOMBUA WAMBUA …….……….………..……….…....……...... 7TH DEFENDANT

AFFIDAVIT

I, Alice Ngulenywa an Advocate of this Honourable Court and a Commissioner of Oaths

residing in Nairobi make oath and state as follows;
1) On Wednesday the 1st December, 2004 I commissioned a Supporting Affidavit by
Mungai Ngaruiya and an Affidavit Verifying Plaint by Mungai Ngaruiya and
Elizabeth Wanjiku Ngaruiya in the above suit. I inadvertedly dated the same the
30th November, 2004 instead of Wednesday the 1st December, 2004.
2) I confirm that I administered the oath on 1 st December, 2004 and not 30th
November, 2004 as I indicated in the Affidavits sworn before me herein.
3) I make this Affidavit from facts known to me of my own personal knowledge the
truth of which I verily believe.
SWORN at NAIROBI by the said )
ALICE NGULENYWA on )
)
)
)
)
this day of 2004 )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
-2-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: N0010/001)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.

To be Served Upon:
B M Mung’ata & Company,
Advocates,
Kitanga House (1st Fl.),
P. O. Box 1064,
90100 – Machakos.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 717 OF 1999

NATION PRINTERS & PUBLISHERS LTD …………….…..….….. PLAINTIFF

-VERSUS-

CLECENSIA OSEBE MUTUKA ………………...….……..…. 1ST DEFENDANT

STEPHEN OGUTU NDUBI ……...………...………………… 2ND DEFENDANT

REPLYING AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Plaintiff and I am duly authorised and competent to make this
Affidavit.

2) I have read and understood the contents of the Defendant’s Application

dated 20th December, 2004 and the Affidavit in support thereof sworn by the
Defendant’s Advocate on the same date and wish to state as follows;

3) The Defendant is not serious about dealing with this Application.

4) On two previous occasions we attended Court but failed to proceed due to

the Defendant’s fault.

5) The Defendant’s Advocate has not even bothered to explain to the Court the
reasons why he was unable to attend Court on 16th December, 2004.

.../2
 -2-

6) Clearly it is evident that the Defendant is buying time and has no intention
of proceeding with their main Application dated 1st December 2004.

7) It is therefore only fair that the same be dismissed and the Plaintiff allowed
to enjoy the fruits of his justice.

8) Save where the source of my information otherwise appears I make this

Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
)

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/239)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL SUIT NO. 937 OF 1986

GEORGE GIKUBU MBUTHIA ....…...………………………...….… PLAINTIFF

- AND -

JIMBA CREDIT CORPORATION LTD …………………….... 1ST DEFENDANT

PETER NJERU MUGO …………………………….……….…. 2ND DEFENDANT

REPLYING AFFIDAVIT

I, Mwinyi Faki Khatib of Post Office Box Number 62299, Nairobi in the Republic
of Kenya do make Oath and state as follows:

1. I am a Manager Remedial Unit Consolidated Bank of Kenya in the 1 st

Defendant Company in this suit and I am competent and duly authorised to
swear this Affidavit on behalf of the 1st Defendant.

2. I have read and understood the Plaintiff’s Notice of Motion dated 10 th

January, 2005 and the Affidavit in support thereof sworn by the Plaintiff on
the same date and make this Affidavit in opposition and reply thereto;

3. I am informed by the Defendant’s Advocates on record which information I

verily believe to be true that the 2 nd Defendant made claims against the 1 st
Defendant in the Amended Defence and Counterclaim dated 27 th January
1992.

4. I am further informed by the said Advocates which information I verily

believe to be true that the 2nd Defendant issued a 3rd Party Notice dated 29th
October, 1991 to the 1st Defendant of making certain claims against the 1 st
Defendant.
 -2-

5. I am informed by the 1st Defendant’s Advocates on record which information

I verily believe to be true that the Consent recorded on 19 th March, 2002
referred only to the suit as between the 2 nd Defendant and the 1st Defendant as
set out on the Amended Defence and Counterclaim and the 3 rd Party Notice
marked “MFK”.

6. I am informed by the Defendant’s Advocates which information I verily

believe to be true that on 11 th December, 1991 the 1st Defendant filed an
answer to the Co-Defendant’s Notice dated 5th December, 1991.

7. I am also informed by the said Advocates which information I verily believe

to be true that Consent offends Order XXIV Rule 1 has no merit since there
is no record of the matter having been set down for hearing thereto.

8. I am further informed by the said Advocates which information I verily

believe to be true Plaintiff has made numerous Applications in this suit but
has not set down this matter for hearing.

9. I am informed by the Defendant’s Advocates on record which information I

verily believe to be true that by a Ruling by the Honourable Justice A. B.
Shah (as he then was) dated 15th December 1994 the Plaintiff’s claim against
the 2nd Defendant was dismissed and therefore there is no suit as between the
two parties and the Plaintiff’s approval is not necessary. Annexed hereto is a
copy of the of the said Ruling marked as exhibit “MFK”.

10. I am also informed by the said Advocates which information I verily believe
to be true that by Legal Notice No. 136 of 2002 a vesting Order was issued to
Consolidated Bank of Kenya and the said Advocates have full authority to act
for the 1st Defendant.
 -3-

11. I am informed by the Defendant’s Advocates on record which information I

verily believe to be true that by a ruling by the Honourable Justice Mr Ole
Keiwua, the 2nd Defendant has a claim against the Plaint by the 1 st
Defendant’s Amended Defence and Counterclaim dated 27 th January 1992
and 3rd Party Notice dated 29th October, 1991.

12. I am advised by the Defendant’s Advocates on record Messrs Kairu &

McCourt Advocates and I verily believe the same to be true that the
Applicants Affidavit is Scandalous and vexatious.

13. What is deponed to in this Affidavit is true of my own knowledge, save as to

statement of belief grounds whereof are disclosed.

14. I now produce exhibit “MFK”.

SWORN at NAIROBI by the said
)
MWINYI FAKI KHATIB on )
)
)
his day of 2005. )
Before Me )
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0002/241)
Wabera Street,
P. O. Box 51385,
Nairobi.
To Be Served Upon:
George Gikubu Mbuthia,
Tawakal Shopping Complex
1st Avenue/5th Street Eastleigh,
P. O. Box 70063,
Nairobi.
 -4-

Peter Njeru Mugo,

Cotts House (4th Fl.),
Wabera Street,
P. O. Box 4558,
00100 - Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT GATUNDU
CIVIL SUIT NO. 264 OF 2002

ESTHER ACHIENG …….……………………………..……..…….... PLAINTIFF

-VERSUS -

CIRIO DEL MONTE KENYA LTD …………………….…..….… DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practising as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendant and I am duly authorised and competent to make this
Affidavit.

2) The Plaintiff herein filed suit against the Defendants on 24th April, 2002.

3) Pursuant thereto the Defendant through their insurers instructed Messrs

Kairu & McCourt Advocates to enter appearance and file a suitable Defence
on its behalf which they did on 28th May, 2004.

4) The matter came up for hearing on 1 st August, 2002 and 3rd September, 2002
but could not proceed as the Plaintiff did not have the vital documents in
support of her case.

5) On 3rd April, 2003 the firm took the initiative to set down the matter for
Hearing and by a letter dated 3 rd April, 2003 invited the Plaintiff’s
Advocates to attend the registry for fixing the date. I annex hereto a copy of
the letter dated 3rd April, 2003 marked as exhibit “VMM-1”.

6) Pursuant thereto the matter was fixed for Hearing on 18 th September, 2003.
However, the same did not proceed as the Plaintiff failed to attend court and
the court ordered that the Plaintiff had been granted one last adjournment.

7) It is well over three months since the suit was adjourned generally and the
Plaintiff has not taken any steps to fix the matter for hearing.

8) In the premises the same ought to be dismissed with costs to the Defendant.
 -2-

9) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

10) I now produce exhibit “VMM”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2004 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
)
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/741)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 2207 OF 2003

MUTHIKE KARANJA …………….……….…..…...……..………… PLAINTIFF

-VERSUS-

ISAAC M. KAMAU …..……………….….....……………………. DEFENDANT

-AND-

THE HONOURABLE ATTORNEY GENERAL ………...……... THIRD PARTY

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practising as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendant and I am duly authorised and competent to make this
Affidavit.

2) The Third Party herein has been served with the Third Party Notice.

3) The Third Party has since then entered appearance on 6th December 2004.

4) That it is now just and expedient for the court to issue directions as is
required by law.

5) I swear this Affidavit in support of this Application for issuing of Third

Party Directions.

…/2
 -2-

6) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
)

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/835)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 552 OF 2000

THE JUBILEE INSURANCE COMPANY LIMITED ……..…….…….. PLAINTIFF

-VERSUS -

MILLENIUM INSURANCE BROKERS LIMITED ……..…….……. DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi in the
Republic of Kenya make oath and state as follows;
1) I am an Advocate of the High Court of Kenya practising as such with the firm
of Kairu & McCourt Advocates who have conduct of this suit on behalf of the
Plaintiff and I am duly authorised and competent to make this Affidavit.
2) The suit herein is for the sum of Kshs 1,053,305/00. The pecuniary jurisdiction
of the Senior Principal Magistrate’s Courts have now been enhanced as per
Gazette Notices Nos. 4888, 4889 and 4890 of 2002 and the Plaintiff herein
would be adequately compensated by the subordinate Court. The said Gazette
Notices are attached and marked exhibit “VMM-1”.
3) I swear this Affidavit in support of this Application and what I have deponed is
correct to the best of my knowledge, information and belief save where
otherwise stated.
4) Save where the source of my information otherwise appears, I make this
Affidavit from facts within my knowledge and as contained in the office file the
correctness of which I verily believe.
5) I now produce exhibit “VMM-1”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
 -2-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/212)
Wabera Street,
P. O. Box 51385,
Nairobi.
`
 REPUBLIC OF KENYA
IN THE MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 10818 OF 2003

MARY GATHONI MAINA …………………………….……....….... PLAINTIFF

-VERSUS -

J. K. WACHIRA …………………………………………………… DEFENDANT

AFFIDAVIT

I, Mary Gathoni Maina of Post Office Box Number 51056 - Nairobi in the
Republic of Kenya make oath and state as follows;

1) I am the Plaintiff in this suit and hence duly competent to make this
Affidavit.

2) On or about 10th May, 2003 whilst driving my motor vehicle registration

number KAQ 439G I was involved in a road traffic accident with motor
vehicle registration number KWA 664 at Mbagathi Roundabout along
Langata Road.

3) Upon occurrence of the said accident the driver of the said motor vehicle
registration number KWA 664 introduced himself to me as Major J.K.
Wachira the Defendant herein. He informed me that the motor vehicle he
was driving was owned by himself and he accepted liability for the accident
whereupon he promised to repair the damage occasioned to my motor
vehicle. To that end he drafted and signed an admission note. Annexed
hereto is a copy of the said Note of Admission marked as exhibit “MGM”-
1”.

4) I thereafter tried to reach the Defendant so that he could make good his
promise but I could not reach him.

5) On 23rd July, 2003 I instructed my Advocates Messrs Kairu & McCourt

Advocates to file suit against the Defendant which they did on 22 nd October,
2003.

6) I am now informed by my Advocates which information I verily believe to

be true that they have since conducted a search at the Registrar of Motor
 Vehicles to establish the registered owner of the motor vehicle registration
number KWA 664.

-2-
7) I am further informed by my Advocates which information I verily believe
to be true that the results of the search show that the said motor vehicle
registration number KWA 664 is in fact registered under the name of “The
Archdiocese of Nairobi” and have to that end furnished me with a Copy of
Records issued to them by the Registrar of motor vehicles. Annexed hereto
is a copy of the said Copy of Records marked as exhibit “MGM-2”.

8) Based on this turn of events my Advocates have advised me that it is prudent

to join the Archdiocese of Nairobi as a Co-Defendant in this suit for
purposes of determining the real issues in this matter.

9) I therefore swear this Affidavit in support of the Application to amend the

Plaint and join in the Archdiocese of Nairobi as a party hereto.

10) The proposed amendments are necessary and will not in any way occasion
any prejudice or injustice to the Defendant.

11) Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.

12) I now produce exhibit “MGM”.

SWORN at NAIROBI by the said)

MARY GATHONI MAINA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
)

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: M0068/001)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 650 OF 2005
JARIBU CREDIT TRADERS LTD .….……………....…..…....… 1ST PLAINTIFF
KEVAL KANTARA .………………………………....…..…....… 2ND PLAINTIFF
- VERSUS -
INSURANCE COMPANY OF EAST AFRICA LTD ……….… 1ST DEFENDANT
KNIGHT FRANK KENYA LTD ………....……..…………..… 2ND DEFENDANT
REPLYING AFFIDAVIT

I, Lucy Maoga of Post Office Box Number 39773, Nairobi make Oath and state as
follows:-

1. I am a Property Managing Agent of the 2 nd Defendant Company and I am

competent and duly authorised to make this Affidavit.

2. I have read and understood the contents of the Plaintiffs’ Application dated
21st January, 2005 and the Affidavit in support thereof sworn by the Seetara
Kantaria on the same date and wish to state as follows;

3. The 1st Plaintiff Company received a Letter of Offer for L. R. No. 209/6921
– Turkana Court # 06, Riverside Park Nairobi dated 23 rd April, 2002.
Annexed hereto is a copy of the said Letter of Offer marked as exhibit “LM-
1”.

4. The Tenancy Agreement was to commence from 1st May, 2002.

5. The 1st Plaintiff did execute an Addendum to the Tenancy Agreement that
was to extend the tenancy for a further year commencing on 1st May, 2003.

6. The 1st Plaintiff executed another addendum to the Tenancy Agreement

extending the tenancy for another year commencing on 1 st May, 2004 and
ending on 31st April, 2005. Annexed hereto is a copy of the said Addendum
marked as Exhibit “LM -2”.
 -2-

7. On 29th July, 2003 we sent a letter to the 1 st Plaintiff warning it of the noise
disturbance being caused from the Turkana Court # 06. Annexed hereto is a
copy of the letter dated 29th July, 2003 marked as exhibit “LM -3”.

8. On 4th August, 2003 we sent another warning letter to the 1 st Plaintiff about
the noise disturbance from the said flat. Annexed hereto is a copy of the
said warning letter marked as Exhibit “LM -4”.

9. It is not true that the family cannot live apart because by a letter dated 8 th
October, 2004 Mr S. N. Kantaria instructed our security to bar Mrs Naila
Suresh Kanataria (Sitara) from the premises. Annexed hereto is a copy of
the letter dated 8th October, 2004 marked as exhibit “LM -5”.

10. By another letter dated 15th October, 2004 the instructions to bar her from
entry into the premises were revoked. Annexed hereto is a copy of the said
letter marked as exhibit “LM -6”.

11. On 1st November, 2004 we sent the 1 st Plaintiff a written notification of

termination of the tenancy in accordance with Clause 4.6 of the Tenancy
Agreement. Annexed hereto is a copy of the said written notification of
termination marked as exhibit “LM -7”.

12. By a letter dated 16th November, 2004 we reiterated the position that the
tenant had until 31st January, 2005 to move out of the said premises.
Annexed hereto is a copy of the letter dated 16 th November, 2004 marked as
exhibit “LM -8”.
13. That after discussions with the said 2 nd Plaintiff’s wife by a letter dated 3 rd
January, 2005 we conditionally agreed to extend the termination notice
period to 31st March, 2005. Annexed hereto is a copy of the letter dated 3 rd
January, 2005 marked as exhibit “LM -9”.
 -3-

14. By a letter dated 17th January, 2005 the Plaintiff did not accept the
conditions of the extension. Annexed hereto is a copy of the said letter
marked as exhibit “LM -10”.

15. By a letter dated 18th January, 2005 the extension period was withdrawn.
Annexed hereto is a copy of the said letter marked as exhibit “LM -11”.

16. We have acted reasonably by warning the Plaintiffs and accommodating the
Plaintiff’s requests but they have not responded positively.

17. We stand to lose other tenants if the Plaintiffs remain in the said apartment
since they have not complied with clause 3.6 of the Tenancy Agreement.

18. That what is deponed to herein is true to the best of my knowledge,

information and belief.

SWORN at NAIROBI by the said

)
LUCY MAOGA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: K0045/025)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT GATUNDU
CIVIL SUIT NO. 480 OF 2002

ISAAC KURIA MBURU …....…..……………..………..………….. PLAINTIFF

-VERSUS-

GARTON LIMITED …………………….…..…………………….. DEFENDANT

REPLYING AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendant and I am duly authorised and competent to make this
Affidavit.

2) I have read and understood the contents of the Plaintiff’s Chamber Summons
and Affidavit in support thereof dated 3 rd November, 2004 and wish to state
as follows;

3) The Plaintiff’s Application is frivolous and an abuse of the Court process.

4) The said Application is not made with genuine intentions of aiding the Court
but was prompted by the Defendant’s Application dated 9 th January, 2004
and filed on 11th November, 2004.

5) The said Defendant’s Application preceded the Plaintiff’s Application and

should be dispensed with first since it was filed before the Plaintiff’s
Application. In which instance, the Plaintiff’s Application would be
overtaken by events.

…/2
 -2-

6) That even though the Plaintiff is allowed to proceed with his Application it
would serve no useful purpose since the Plaint still conflicts with the
evidence already adduced before this Honourble Court and which evidence
cannot be amended.

7) I swear this Affidavit in opposition to the Plaintiff’s Application and pray

that it be dismissed with costs.

8) Save where the source of my information otherwise appears I make this

Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/797)
Wabera Street,
P. O. Box 51385,
Nairobi.
To Be Served Upon:
Kagia & Company,
Advocates,
Bima House (4th Fl.), (File Ref: A/450)
P. O. Box 15549,
00503 – Mbagathi.
 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 990 OF 2005
PETER GATHERI WAIGWA …….…………………....…...……… PLAINTIFF
- VERSUS -
CFC BANK LIMITED ……….….....…………..…………..……… DEFENDANT
REPLYING AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows that:

1) I am the Manager, Legal Services of the Defendant Company and I am

competent and duly authorised to swear this Affidavit on its behalf.

2) I have read and understood the contents of the Plaintiff’s Application dated
1st February, 2005 and the Affidavit in support thereof sworn by the Peter
Gatheri Waigwa on the same date and wish to state as follows;

3) The Plaintiff accepted the terms of the Letter of Approval dated 21 st July,
2003 and the conditions therein where the down payment amounted to Kshs
327,500/00 and not the amount claimed in his Affidavit. Annexed hereto is
a copy of the Letter of Approval dated 21st July, 2003 marked as exhibit
“RWK-1”.

4) The Defendant did send the Plaintiff a repossession notice due to non-
payment of the hire rentals for 4 months.

5) The Defendant received cheques from Wanji Limited namely Kenya

Commercial Bank Cheque No. 000262 and Cheque No. 000263 to the bank,
however Cheque No. 000262 was returned unpaid on the basis that it was
stopped by the Plaintiff a copy of the said cheque and the debit advice is
attached marked as exhibit “RWK-2”.
 -2-

6) The Defendant did not find it prudent to present cheque No. 000263 as the
Plaintiff had stopped the other cheque and to avoid bank charges should the
Plaintiff do the same.

7) I am informed by Wanji Limited and do verily believe the same to be true

that they are not debt collectors but in fact were at the time of repossession
in question licensed auctioneers and repossessors. Annexed hereto is copy
of the licence for 2004 issued to Wanji Limited marked as exhibit “RWK-3”.

8) I am informed by our Advocates and do verily believe the same to be true

that the Plaintiff is not the owner of motor vehicle registration number KAR
055B. The motor vehicle is on hire to the Plaintiff and is the property of the
bank until and unless the Plaintiff exercises his option to purchase which he
has not done so to date. A copy of the Hire Purchase Agreement dated 25 th
August, 2003 is attached marked as exhibit “RWK-4”.

9) The Defendant has failed to make payments in accordance with the Hire
Purchase Agreement and has thus forced the Defendant to terminate the
Agreement.

10) The Plaintiff has not been honest in his dealings with the Defendant and has
severally stopped payments due on the Hire Purchase Bank. He has issued
five cheques which have not been honoured;

a) Cheque number 000080 for Kshs 45,259/00 returned to the Defendant

marked “refer to drawer”.

b) Cheque No. 000101 for Kshs 49,960/00 returned to the Defendant

unpaid on the basis payment was stopped by the Plaintiff.

c) Cheque No. 000107 for Kshs 46,260/00 returned to the Defendant

unpaid on the basis payment was stopped by the Plaintiff.
 -3-

d) Cheque No. 000178 for Kshs 46,500/00 returned to the Defendant

unpaid on the basis payment was stopped by the Plaintiff.

e) Cheque No. 000193 for Kshs 47,000/00 returned to the Defendant

unpaid on the basis payment was stopped by the Plaintiff.

Annexed hereto are copies of the said cheques as a bundle and produce
them as exhibit “RWK-5”.

11) That Wanji Limited was a licensed auctioneer at the time of the repossession
and refer to exhibit “RWK-3”.

12) That the Plaintiff has not come to Court with clean hands and has not
disclosed to the Court the material facts.

13) That the Defendant is only exercising its rights under the Hire Purchase
Agreement.

14) That what is deponed to herein is true to the best of my knowledge,

information and belief.

15) I now produce exhibit “RWK”.

SWORN at NAIROBI by the said

)
RITA WAMBUI KURIA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
 -4-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/194)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 971 OF 2004

DAVID K. MWENJE ………………………………..…..………… APPELLANT

- VERSUS -

THE JUBILEE INSURANCE COMPANY LIMITED …...……... RESPONDENT

REPLYING AFFIDAVIT

I, Wafula Nabutola of Post Office Box Number 30376, Nairobi make Oath and
state as follows:-

1. I was at all material times the Property Manager of the Plaintiff Company
and I am now based in the Marketing Division of the Plaintiff Company and
I am competent and duly authorised to make this Affidavit.

2. I have read and understood the contents Defendant’s Application dated 11 th

February, 2005 and the Affidavit in support thereof and I make this Affidavit
in opposition and in reply thereto.

3. I am further informed by my Advocates on record which information I verily

believe to be true that the Appeal has no merit and has little chance of
success as set out in paragraph 1 of our Grounds of Opposition herein.

4. I am also informed by our Advocates which information I verily believe to

be true that this Application is only an attempt to further delay execution of
the Judgement given on 30th October, 2002.

5. I am informed by my Advocates on record which information I verily

believe to be true that the execution of Decree seeks to attach 1/3 of the
Defendant’s and not his allowances, contrary to the Statement made by the
Defendant in paragraphs 8 and 9 of his Supporting Affidavit dated 11 th
February, 2005.
 -2-

6. I am also informed by our Advocates which information I verily believe to

be true that the Defendant’s offer to meet any security terms set by the Court
as stated in paragraph 10 of the same indicates that the Appellant is able to
pay the decretal sum and contradicts his averments in his sworn Affidavit.

7. I am further informed by my Advocates on record which information I verily

believe to be true that as stated in paragraph 3 of our Grounds of Opposition
herein the Defendant should be made to pay the full decretal amount as
security to us. We are an insurance company of good repute and would
therefore be in a position to refund the Defendant should he happen to win
the Appeal.

8. Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
WAFULA NABUTOLA on )
)
)
this day of 2005. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/236)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 464 OF 2000

PETER MUNYAO KAMWATHI …………………..……………… PLAINTIFF

-VERSUS-

KENYA COMMERCIAL BANK LIMITED …….………...…. 1ST DEFENDANT

SAMRSOSS INVESTMENTS LIMITED ………..…….….…. 2ND DEFENDANT
JOHN KIPKORIR SAMBU ………………..……....…..……... 3RD DEFENDANT
RHODA CHESANGA SAMBU …………….….…….………. 4TH DEFENDANT

AFFIDAVIT

I, Peter Munyao Kamwathi residing in Nairobi and Machakos and of Post Office
Box Number 43207, 00100 - Nairobi in the Republic of Kenya make oath and state
as follows;

1) I am the Plaintiff in this matter and I am competent to make this Affidavit.

2) I invite the court’s attention to my Plaint filed herein.

3) I commenced this suit following a threat by the 1st Defendant to sell my

property L. R. No. 309/3011/1 Nairobi.

4) I charged my said property to the 1 st Defendant under the circumstances set

out in my Plaint herein.

5) Since charging my said property the 1st Defendant has kept me in the dark as
to dealings between itself and the Principal Debtor the 1 st Defendant. I
therefore do not have the correspondence that is material to the transaction
that was exchanged between the 1st Defendant and 2nd/3rd Defendants.
 -2-

6) On 27th May, 2004 my Advocates on record, as they inform me and I verily

believe to be true, served on the 1 st Defendant’s Advocates notice requesting
discovery. Now produced and shown to me is a copy of the said Notice
dated 26th May, 2004 and a copy of the Affidavit of Service dated 28 th May,
2004 marked pages 1 – 3 of exhibit “PMK-3”.

7) In purported compliance, the 1st Defendant Advocates served on my

Advocates on record copies of documents under a Notice dated 7 th July,
2004. Now produced and shown to me is a copy of the said Notice together
with copies of the documents supplied in a bundle marked “PMK-3”.

8) Save for a few letters exchanged between the 1 st Defendant and the 2nd
Defendant between the year 2002 and 2003 the 1 st Defendant has declined to
make discovery of documents as requested by me in my Notice. Indeed my
Advocates by letter dated 21st July, 2004 complained to the 1 st Defendant’s
Advocates that the 1st Defendant had failed to comply. Now produced and
shown to me is a copy of my Advocates letter dated 21 st July 2004 to the 1st
Defendant’s Advocates marked as pages 4 – 5 of exhibit “PMK-3”.

9) By a letter dated 19th August 2004 the 1st Defendant’s Advocates forwarded
to my advocates a copy of a statement of account and a copy of a letter dated
14th January 2003 and pleaded that it required more time to locate
correspondence exchanged between December 1998 and 2002. A copy of
the letter dated 19th August 2004 is now produced and marked page 6 of
exhibit “PMK-3”.

10) By a letter dated 11th November, 2004 my Advocates requested the 1 st

Defendant’s Advocates to forward its List of Documents but the 1 st
Defendant has to date not done so.
 -3-

11) The documents required are necessary for a fair and just determination of the
issues before the court.

12) In the foregoing circumstances I pray that the application filed herewith be
allowed.

13) Save where the source of my information otherwise appears, I make this
Affidavit from facts partly from my perusal and from information contained
in my advocates file in connection with this matter and the truth of which I
verily believe.

14) I now produce exhibit “PMK-3”.

SWORN at NAIROBI by the said )

PETER MUNYAO KAMWATHI on )
)
)
)
this day of 2005 )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: K0007/001)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 443 OF 1997

JOSPHAT KAMAU MWANGI …………..………..………..……… PLAINTIFF

- VERSUS -

AZAD CONSTRUCTION COMPANY LTD ……..….……..…….. DEFENDANT

-AND-

RHONE POULENC (K) LIMITED ….….…………………..….... THIRD PARTY

REPLYING AFFIDAVIT

I Steven Gatembu Kairu residing at Nairobi and of Post Office Box Number
51385, Nairobi make Oath and say as follows:

1. I am a Partner in the firm of Kairu & McCourt Advocates having conduct of

this suit on behalf of the Third Party.

2. I have read and understood the contents of the Plaintiff’s Application dated
20th January, 2005 and the Affidavit in support thereof sworn by Joshua
Cherutich Advocate and wish to reply as follows;

3. The manner in which both the Plaintiff and his Advocate have conducted
themselves in this mater demonstrates their lack of seriousness to pursue the
same.

4. The accident, the subject matter of this suit is alleged to have occurred way
back on 20th July, 1994 (over ten years ago) and this suit was first filed in
Nakuru in 1995 as HCCC No. 678 of 1995 before being transferred to
Nairobi.

5. Despite the age of the matter the Plaintiff has not demonstrated any signs of
bringing it to a close.
 -2-

6. The last time that the Plaintiff took a step to fix this suit for hearing was on
12th March, 2002 when the Plaintiff’s Advocate invited my firm to fix this
suit for hearing on 4th February, 2002. Now produced and shown to me is a
copy of the letter of invitation marked as page 1 of exhibit “SGK”.
7. I am however informed by my clerk who attended the Court Registry for
fixing of the Hearing date which information I verily believe to be true that
no date was taken as the Plaintiff’s Advocates representative failed to show
up. Since then the Plaintiff has not taken any steps to fix the matter for
hearing.
8. By a letter dated 25th February, 2003 my firm invited representatives of the
Plaintiff’s Advocate and the Defendant’s Advocate to fix the matter for
hearing on 12th March, 2003. Now produced and shown to me is a copy of
the said invitation letter marked as page 2 of exhibit “SGK”.
9. I am however informed by my clerk which information I verily believe to be
true that the Plaintiff’s Advocates representative did not attend and we
subsequently issued a Hearing Notice to the Plaintiff’s Advocates informing
them that the suit had been fixed for hearing on 23 rd and 24th July, 2003 and
thereafter filed an Affidavit of Service to that effect.
10. However on 23rd July, 2003 when the suit came up for hearing neither the
Plaintiff nor his Advocate were present. However the Court declined to
dismiss the suit for non-attendance stating that service ought to have been
personal.
11. Once again my firm took the initiative to fix the suit for hearing by inviting
the Plaintiff’s and Defendant’s Advocates representatives on 6 th January,
2004. Now produced and shown to me is a copy of the said invitation letter
marked as page 3 of exhibit “SGK”.
 -3-

12. I am however informed by my clerk which information I verily believe to be

true that neither the Plaintiff’s nor the Defendants Advocates representatives
attended the Court Registry for fixing of the hearing date.

13. My firm therefore prepared Hearing Notices and served both the Plaintiff
and Defendant’s Advocates with the same informing them that the matter
had been fixed for hearing on the 19th and 20th of May, 2004 and Affidavits
of Service were drawn and filed to that effect.

14. On the 19th of May, 2004 when the Plaintiff’s suit was dismissed for non-
attendance it is clear from the Court record that neither the Plaintiff nor his
Advocate was present in Court.

15. The Plaintiff’s Advocate does not offer any explanation to the Court as the
reason(s) why he was unable to attend Court in good time having been
served way back on 6th February, 20004 as is evident from the Affidavit of
Service sworn on 16th February, 2004 and filed on 20th March, 2004.

16. It is also not clear why the said Mr Biwott Advocate mentioned in
paragraphs 4, 5, 6 and 7 of the Plaintiff’s Advocate’s Affidavit has failed to
swear an Affidavit to the effect that he was actually present in Court.

17. In any event on the material day when the Plaintiff’s suit was dismissed the
Court was in fact lenient to the Plaintiff by allowing the Court file to be
placed aside until 9.50 a.m. despite Court having started at 9.00 a.m. and by
the end of which time there was still no attendance by the Plaintiff nor his
Advocate.

18. Further the Plaintiff is guilty of laches as he does not explain to this Court
why it has taken him so long to reinstate the suit.
 -4-

19. The suit was dismissed way back on 19th May, 204 but the Plaintiff made the
first Application to reinstate the suit on 7 th October, 2004 about 5 months
later.
20. In view of the foregoing it is clear that the Plaintiff has been quite indolent
in the manner h e had conducted himself and the Court process should not be
used to aid the indolent but the vigilant.
21. Taking into account the age of this matter and the manner in which the
Plaintiff has repeatedly conducted himself it would be grossly unfair to
reinstate this suit as it would continue to hang over the 3 rd Part’s head like
the Sword of Damocles.
22. I therefore swear this Affidavit urging the Court to dismiss the Plaintiff’s
Application with costs to the Third Party.
23. That what is deponed to herein is true to the best of my knowledge,
information and belief.
24. I now produce exhibit “SGK”.
SWORN at NAIROBI by the said
)
STEVEN GATEMBU KAIRU on )
)
)
this day of 2005. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/378)
Wabera Street,
P. O. Box 51385,
Nairobi.
 -5-
To Be Served Upon:
Sunil Khanna & Co.,
Advocates,
Kenindia House (1st Fl,), (File Ref: KEN/107/97/SK)
Loita Street,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATES COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 635 OF 2002
KOBIL PETROLEUM LIMITED ……………………...……..…….... PLAINTIFF
-VERSUS -
VICTOR OWOUR WANENO …..………..….…...………….…… DEFENDANT
REPLYING AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates (hereafter referred to as “the firm”)
who have conduct of this suit on behalf of the Plaintiff and I am duly
authorised and competent to make this Affidavit.

2) I have read and understood the contents of the Defendant’s Chamber

Summons Application dated 16th February, 2005 and Affidavit in support
thereof sworn by Victor Owuor Waneno on the same date and wish to state
as follows;

3) The firm received instructions to file suit against the Defendant which they
did on 1st February, 2002.

4) On 7th February, 2002 the firm wrote a letter to Messrs Hegrome Trading
and Investigators the Process Server herein to effect service on the
Defendant. Now produced and shown to me is a copy of said letter marked
as page 1 of exhibit “JWN-1”.

5) On 15th February, 2002 the Process Server wrote to us informing us that

service had been effected. Now produced and shown to me is a copy of the
letter dated 15th February, 2002 marked as page 2 of exhibit “JWN-1”.
 -2-

6) On 20th February, 2002 we wrote back to the Process Servers and informed
them that service had not been proper as they had served the Defendant’s
wife and not the Defendant personally. Now produced and shown to me is a
copy of the letter dated 20th February, 2002 marked as page 3 of exhibit
“JWN-1”.

7) On 19th June, 2002 the Process Server informed us that they had been unable
to effect personal service on the Defendant. Now produced and shown to
me is a copy of the said letter from the Process Server marked as page 4 of
exhibit “JWN-1”.

8) On 15th October, 2002 we wrote back to the Process Server and informed
them that under provisions of Order V Rule 12 they could serve the
Defendant’s wife at the place of residence which they did and the Affidavit
of Service is on record. Now produced and shown to me is a copy of the
said letter marked as page 5 of exhibit “JWN-1”.

9) It is evidently clear from the Affidavits of Service and from the Process
Server’s letter marked as page 4 of exhibit JWN that at no one single time
did the Defendant’s wife inform the Process Server that she wasn’t residing
with the Defendant.

10) It is therefore my humble opinion that in the circumstances the Summons

were properly served on the Defendant’s wife as the Process Server had
been unable to get hold of him personally.

11) It is also clear from the Defendant’s Affidavit that the Defendant is not a
truthful person. In paragraph two of his Affidavit he does not disclose how
he received the Notice of Judgement.
 -3-

12) I wish to bring to this Honourable Court’s attention that the Notice annexed
to the Defendant’s Affidavit as exhibit ‘A’ was in fact served upon the same
wife whom he denies having contact with. Now produced and shown to me
is a copy of the Process Server’s Affidavit of Service sworn on 18 th February
2005, in respect of the said Notice marked as exhibit “JWN-2”.

13) In his attempt to mislead the Court the Defendant also acknowledged receipt
of the Notice of Judgement. It is preposterous for him to allege that he has
no connections with his wife and that the Summons were wrongly served on
her.

14) In any event the Defendant does not out rightly deny that he never received
the Summons to Enter Appearance from his wife.

15) In reply to paragraph 10, I wish to state that Court Summons were issued in
duplicate and the contents of the said paragraph have no merit.

16) In reply to paragraphs 11 and 12, I wish to state that the Plaintiff had many
options open to it with regard to, the modes of service upon the Defendant
and serving by Registered Post is only one of them.

17) Further having served an adult member of his family namely his wife as per
the requirements of Order V Rule 12 there was no need to serve the Plaintiff
by registered post.

18) In any event communication sent to the Defendant by the firm via registered
post on that address had previously been returned unclaimed. Now
produced and shown to me is a copy of an envelope addressed to the
Defendant returned unclaimed and a copy of the Certificate of Posting
marked as pages 1 and 2 respectively of exhibit “JWN-3”.
 -4-

19) In reply to paragraphs 13, 14 and 15 of the Defendant’s Affidavit I wish to

state the Defendant was given an opportunity to defend himself when
Summons were served upon him and it is untrue that he has been denied
justice. The Defendant had been offered the opportunity to raise the issues
he now raises but he simply ignored it.

20) In fact it would be unfair to allow the Defendant’s who ignored Summons to
Enter Appearance to be allowed to come to Court at the last minute to set
aside Judgement when the Plaintiff is executing.

21) This is an old matter where the accident occurred in February , 1999 and the
Plaintiff should be allowed to recover his damages and the Defendant should
not be allowed to drag matters back when he has been indolent and arrogant.

22) I therefore humbly pray that this Honourable Court do dismiss the
Defendant’s Application with costs.

23) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

24) I now produce exhibits “JWN”.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
 -5-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/267)
Wabera Street,
P. O. Box 51385,
Nairobi.

To Be Served Upon:
Nyamogo & Nyamogo,
Advocates,
Rehema House (1st Fl.),
Standard Street,
P. O. Box 14181,
00800 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 416 OF 2003

PORUS PHIROZE MISTRY …………………………………...….… PLAINTIFF

- VERSUS -

MADHUSUDAN GULABBHAI DESAI …….……..……….... 1ST DEFENDANT

SHOBNA JAMNADAS KANTARIA …..……..….……….…. 2ND DEFENDANT
MISTRY INVESTMENTS LIMITED …….………….………. 3RD DEFENDANT

REPLYING AFFIDAVIT

I, Madhusudan Gulabbhai Desai of Post Office Box Number 41721, Nairobi in the
Republic of Kenya do make Oath and state as follows:

1) I am the 1st Defendant/Respondent and a Director of the 3 rd Defendant

Company and I am duly authorized and competent to make this Affidavit.

2) I have read and understood the Plaintiff’s Application dated 17 th December,

2004 and the supporting Affidavit sworn on the same date and wish to state
as follows;

3) From my own knowledge the Plaintiff did not appoint me as the Director on
29th June, 1981 to look after the 3rd Defendant Company’s affairs in their
absence.

4) I am informed by my Advocates which information I verily believe to be true

that the Plaintiff is not a director in the 3 rd Defendant Company and I refer to
the 1st Defendant’s List of Documents.

5) I am also informed by my Advocates which information I verily believe to be

true that the 1st Defendant’s Defence at paragraph 3 the resolution appointing
the Plaintiff as a director is denied.
 -2-

6) I am informed by my Advocates which information I verily believe to be true

that the 3rd Defendant Company’s Articles of Association give the Directors
absolute discretion without assigning any reason in the registration of any
transfer of shares.

7) I am also informed by my Advocates which information I verily believe to be

true that even if the Applicant is the executor of Sam Mistry Estate it does
not automatically entitle him to be member of the Company.

8) I am also informed by my Advocates which information I verily believe to be

true that the right to inspect the Minute Books only applies to members of the
3rd Defendant Company.

9) Save where the source of my information otherwise appears I make this

Affidavit from facts true of my own knowledge.

SWORN at NAIROBI by the said )

MADHUSUDAN GULABBHAI DESAI on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: M0066/002)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT THIKA
CIVIL SUIT NO. 619 OF 2002

CHARLES KINYUA MBOGO ...................…...…………................ PLAINTIFF

-VERSUS-

PETER MWAI KANYORO ..................…………..……………..... DEFENDANT

-AND-

KAKUZI LIMITED …………..………..…………….......……..... THIRD PARTY

AFFIDAVIT

I MWANGI KINGORI of Post Office Box Number 24, 01000 - Thika do hereby
make Oath and state as follows:

1) I am the Administrative Manager of the Defendant Company and I am

competent and authorised by the Defendant to make this Affidavit.

2) The cause of action against the 3rd Party in this suit arose as a result of an
accident, which allegedly occurred when motor vehicle registration number
KAA 735Z belonging to the Defendant and in which the Plaintiff was
allegedly a passenger collided with motorcycle registration number KAH
708v.

3) The driver of motor cycle registration number KAH 708V (now deceased)
hereinafter referred to as the deceased entered into a Loan Agreement dated
8th June, 1998 in which the 3 rd Party was to be the financier and the deceased
was the Loanee of the motor cycle. Now produced and shown to me is a
copy of the Loan Agreement marked as exhibit “MK-1”.

…/2
 -2-

4) I am informed by my Advocates on record which information I verily

believe to be true that even if the Loan Agreement still existed, there would
be no agency between the deceased and the 3 rd Party as the only relationship
that would exist out of the Loan Agreement is the Loanee and Financier.
The 3rd Party should not be responsible for the deceased’s actions.

5) The 3rd Party has been wrongly joined as an interested party to the suit and
should be struck out as a party to the suit.

6) Save where the source of my information otherwise appears, I make this

Affidavit from facts within my own knowledge, the truth of which I verily
believe.

7) I now produce exhibit “MK”.

SWORN at NAIROBI by the said

)
MWANGI KINGORI on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/884)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL SUIT NO. 937 OF 1986

GEORGE GIKUBU MBUTHIA ....…...………………………...….… PLAINTIFF

- AND -

JIMBA CREDIT CORPORATION LTD …………………….... 1ST DEFENDANT

PETER NJERU MUGO …………………………....……….…. 2ND DEFENDANT

REPLYING AFFIDAVIT

I, Mwinyi Faki Khatib of Post Office Box Number 62299, Nairobi in the Republic
of Kenya do make Oath and state as follows:

1. I am a Manager Remedial Unit Consolidated Bank of Kenya in the 1 st

Defendant Company in this suit on behalf of the 1 st Defendant and I am
authorised to swear this Affidavit.

2. I have read and understood the Plaintiff’s Chamber Summons dated 5 th

February, 2005 and the Affidavit in support thereof sworn by the Plaintiff on
the same date and make this Affidavit in opposition and reply thereto;

3. I am informed by the Defendant’s Advocates on record which information I

verily believe to be true that the 1st Defendant complied wit the orders of the
Court given on 13th December, 1991 by filing the Amended Defence and
Counterclaim on 1st February, 1992.

4. I am further informed by the said Advocates which information I verily

believe to be true that the Plaintiff has not complied with Section 228 of the
Companies Act.
 -2-
5. I am informed by the 1 st Defendant’s Advocates on record which
information I verily believe to be true that the Plaintiff seeks to delay the
hearing and the final determination of this suit by making numerous
Applications.

6. I am further informed by the said Advocates which information I verily

believe to be true that the Plaintiff’s Affidavit is fatally defective in that the
jurat is on a separate page from the body of the Affidavit.

7. What is deponed to in this Affidavit is true of my own knowledge, save as to

statement of belief grounds whereof are disclosed.

SWORN at NAIROBI by the said

)
MWINYI FAKI KHATIB on )
)
)
)
his day of 2005. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0002/241)
Wabera Street,
P. O. Box 51385,
Nairobi.
To Be Served Upon:
George Gikubu Mbuthia,
Tawakal Shopping Complex
1st Avenue/5th Street Eastleigh,
P. O. Box 70063,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)

WINDING UP CAUSE NO. 17 OF 2003

IN THE MATTER OF PETRO CHEMICAL & CARGO SERVICES LIMITED
AND
IN THE MATTER OF THE COMPANIES ACT, CAP 486 LAWS OF KENYA

AFFIDAVIT

I, Steven Gatembu Kairu residing along Njathaini Road Kiambu and of Post Office Box
Number 51385, 00200 - Nairobi make oath and state as follows:
1. I am an Advocate of the High Court of Kenya and a partner in the firm of Kairu &
McCourt Advocates having the conduct of this matter on behalf of The Jubilee
Insurance Company Limited the insurer of Simba Colt Motors Limited the
Applicant herein and I am authorised and competent to make this Affidavit.
2. On instructions from The Jubilee Insurance Company Limited under its
subrogation rights my firm filed on behalf of the Applicant HCCC No. 771 of
2003 on 3rd December, 2003. Now produced and shown to me is a copy of the
Plaint marked as pages 1 – 4 of exhibit “SGK-1”.
3. In February 2004 and specifically on 17th February, 2004 I noticed from the Cause
List of that date a Winding Up Cause in respect of the Company herein. I
instructed my firm’s Court Clerk Mr Kizito Bukhala to enquire from the High
Court Registry the Advocates involved in the Winding Up Cause. Mr Kizito
informed me and I verily believed the same to be true that Messrs Miriti & Co.
Advocate were acting in the matter.
4. On 18th February, 2004 I telephoned the said firm and also wrote a letter of the
same date and received a response on 20 th February, 2004. Now produced and
shown to me is a copy of my firm’s letter dated 18 th February, 2004 together with
a copy of the response dated 19 th February, 2004 marked as pages 5 and 6 of
exhibit “SGK-1”.
 -2-

5. By a letter dated 25th February, 2004 my firm wrote to Messrs Miriti & Company
Advocates enquiring from them whether they had instructions to act for the
Company in the suit to which Messrs Miriti and Company Advocates responded
by a letter dated 27th February, 2004 indicating that the firm did not have
instructions in respect to HCCC 771 of 2003 – Nairobi. Now produced and shown
to me is a copy of my firm’s letter dated 25 th February, 2004 and Messrs Miriti and
Company Advocate’s letter dated 27th February, 2004 marked as pages 7 and 8 of
exhibit “SGK-1”.

6. Sometime between 1st March, 2004 and 8th March, 2004 I spoke with Mr Bengi,
Advocate of Miriti and Company Advocates who informed me that an interim
liquidator had been appointed. By a letter dated 8 th March, 2004 I requested
Messrs Miriti & Company Advocates to forward to my firm a copy of the order
appointing the Interim Liquidator together with the Gazette Notice. Now
produced and shown to me is a copy of my firm’s letter of 8 th March, 2004 marked
as page 9 of exhibit “SGK-1”.

7. On 8th March, 2004 my firm received a letter from Mr Kamal Shah, Interim
Liquidator (VCS Consultants Limited) dated 4th March, 2004. A copy of the said
letter is now produced and shown to me and marked as pages 10, 11 and 12 of
exhibit “SGK-1”.

8. By a letter dated 5th May, 2004 my firm enquired from the Interim Liquidator the
status of the company, a reminder was sent on 3 rd June, 2004 and finally on 16th
June, 2004 the interim liquidator responded and stated that he would respond once
“we finalise on collections and creditors”. Now produced and shown to me are
copies of the letters dated 5th May, 2004, 3rd June, 2004 and 15th June, 2004
marked as pages 13, 14 and 15 of exhibit “SGK-1”.

9. My firm did not receive further communication from the Interim Liquidator after
the letter of 15th June, 2004. In August 2004 I requested an Advocate in my firm
Joyce Wamucii, Advocate to peruse the Court file in respect of the above matter.
 -3-
She informed me and I verily believed the same to be true that upon perusing the
Court file she noted that the Petition herein was argued in July, 2004 but that
certain pages of the record were missing. Now produced and shown to me is a
copy of Joyce Wamucii’s Attendance Note dated 31st August, 2004 marked as
pages 16 - 17 of exhibit “SGK-1”.
10. In the meanwhile my firm filed and served a Notice of Intention to Appear on the
Petitioner’s Advocates.
11. In the foregoing circumstances my firm was awaiting further communication from
the Interim Liquidator ignorant of the proceedings herein. The omission to file
and serve the Notice of Intention to Appear was therefore due to lack of
information from the Interim Liquidators or the Petitioner’s Advocates with regard
to the status of the Petition and the Company.
12. In the premises I pray that the Applicant’s Application be allowed.
13. Save where the source of my information otherwise appears, I make this Affidavit
from facts within my own knowledge the truth of which I verily believe.

14. I now produce exhibit “SGK-1”.

SWORN at NAIROBI by the said )

STEVEN GATEMBU KAIRU on )
)
)
this day of 2005. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/415)
Wabera Street,
P.O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 12420 OF 2004

FARMERS CHOICE LIMITED …...…………………..……..…….... PLAINTIFF

-VERSUS -

THE ATTORNEY GENERAL ….………………….……...……… DEFENDANT

AFFIDAVIT

I, Steven Gatembu Kairu of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya and a partner in the firm of

Kairu & McCourt Advocates who have conduct of this suit on behalf of the
Plaintiff herein and I am duly authorised to make this Affidavit.

2. On 11th November, 2004 the Plaintiff herein filed suit against the
Honourable Attorney General in respect to a motor vehicle accident that
occurred on 29th November, 2003 involving the Plaintiff’s motor vehicle
registration number KAP 633N and motor vehicle registration GK R857
belonging the Ministry of Health.

3. These proceedings were instituted against the Defendant under Section 12 of

the Government Proceedings Act Cap of the Laws of Kenya.

4. Summons to Enter Appearance were issued on 11 th November, 2004 and

served upon the Defendant on 24th November, 2004 together with the Plaint
and Verifying Affidavit. Now produced and shown to me is a copy of the
Affidavit of Service marked as pages 1 - 6 of exhibit “SGK-1”.

.../2
 -2-

5. The Defendant herein filed a Memorandum of Appearance on 10 th

December, 2004 and the same was served upon the Plaintiff’s Advocate on
12th January, 2005. Now produced and shown to me is a copy of the
Memorandum of Appearance marked as page 6 of exhibit “SGK-1”.

6. To date the Defendant has not filed a Statement of Defence and more than
fifteen days have elapsed since the Defendant filed a Memorandum of
Appearance and the Applicant is therefore entitled to Interlocutory
Judgement against the Defendant.

7. I make this Affidavit in support of the Application for leave to enable the
Plaintiff obtain Interlocutory Judgement against the Defendant.

8. What is deponed to in this Affidavit is true to the best of my own

knowledge, information and belief.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
)
this day of 2005. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/436)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 815 OF 2004

RAPID KATE SERVICES LTD ....……….……………....……..... APPLELLANT

-VERSUS-

DISMAS ORODI MUBWEKA ……………...….………….....….. RESPONDENT

(Being an Appeal from the Judgement delivered by the Honourable Mrs. Owino
Senior Principal Magistrate on the 2nd September, 2004)

IN

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
CIVIL SUIT NO. 931 OF 2001

DISMAS ORODI MUBWEKA ……….………………….…..… PLAINTIFF

- VERSUS -

RAPID KATE SERVICES LTD. ……....……..…….…..…… DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 – Nairobi in
the Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya practising as such in the firm

of Kairu & McCourt Advocates who have conduct of this suit on behalf of
the Defendant and I am duly authorised and competent to swear this
Affidavit.

2. The Defendant Company intends to appeal from the Judgement of this

Honourable Court delivered on the 2nd September, 2004 and has to that end
filed a Memorandum of Appeal under High Court Civil Appeal 815 of 2004,
Nairobi. Now produced and shown to me is a copy of the Memorandum of
Appeal marked as exhibit “JWN-1”.
 -2-

3. The Defendant on 5th October, 2004 filed an Application for stay of

execution pending Appeal under Certificate of Urgency, in the Chief
Magistrate’s Court at Nairobi.

4. The Honourable court granted ex-parte Orders for stay on 5th October, 2004
pending hearing of the inter-partes Application on 15th October, 2004.

5. On 15th October, 2004 the Plaintiff’s Advocates attended court and applied
for leave to file their Affidavit in Reply to the Defendant’s Application out
of time which leave was granted and the Application was stood over to 25 th
October, 2004 and Interim Orders for stay of execution were extended.

6. On 25th October, 2004 the Defendant’s Advocate applied for the Plaintiff’s
Affidavit in Reply to be expunged from record as the Plaintiff had failed to
serve the same within the time stipulated by the Court Order of 15 th October,
2004 and the law.

7. The Court delivered its Ruling on the Application by Defendant’s Advocate

to expunge Plaintiff’s Affidavit on 4 th November, 2004 when the Court
ordered that the Affidavit be expunged from record. However, Interim
Orders were not extended.

8. The Defendant’s Application was thereafter fixed for hearing on several

occasions whereby the file was either missing or listed before the wrong
Magistrate.

9. The last time the Application came for hearing was on 11 th February, 2005
whereby the Respondent’s Advocate once again applied for leave to file a
replying Affidavit and the Honourable Magistrate was to deliver the Ruling
on 17th February, 2005.
 -3-

10. On 17th February, 2005 the Magistrate notified us that the Ruling had been
postponed and it has come to our attention that the Honourable Magistrate
has since been transferred to another station.

11. Should the Plaintiff execute, the Defendant’s Application for Stay of
Execution attached herein and the intended Appeal will be rendered
nugatory.

12. The Defendant is ready and willing to deposit the decretal amount in a joint
account as security, pending the hearing and determination of the Appeal.

13. I make this Affidavit in support of the Defendant’s Application for stay of
execution pending hearing and final determination of the Application
attached herein.

14. Save where the source of my information otherwise appears I make this
Affidavit from facts on record the truth of which I verily believe.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: R0027/044)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL SUIT NO. 937 OF 1986

GEORGE GIKUBU MBUTHIA ....…...……………….………….… PLAINTIFF

- VERSUS -

JIMBA CREDIT CORPORATION LTD …………………….... 1ST DEFENDANT

PETER NJERU MUGO …………………………….…………. 2ND DEFENDANT

REPLYING AFFIDAVIT

I, Mwinyi Faki Khatib of Post Office Box Number 62299, Nairobi in the Republic
of Kenya do make Oath and state as follows:

1. I am a Manager Remedial Unit Consolidated Bank of Kenya in the 1 st

Defendant Company in this suit on behalf of the 1 st Defendant and I am
competent and duly authorised to swear this Affidavit on behalf of the 1 st
Defendant.

2. I have read and understood the Plaintiff’s Notice of Motion dated 2 nd March,
2005 and the Affidavit in support thereof sworn by the Plaintiff on the same
date and make this Affidavit in opposition and reply thereto;

3. I am informed by the Defendant’s Advocates on record which information I

verily believe to be true that the Plaintiff instituted this suit 19 years ago and
to date he has not set it down for hearing.

4. I am further informed by the said Advocates which information I verily

believe to be true that the 1 st Defendant’s Defence and Counterclaim was
filed 13 years ago and the Plaintiff’s Application has been made after a
considerable lapse of time and this delay is inordinate.
 -2-

5. I am informed by the 1 st Defendant’s Advocates on record which

information I verily believe to be true that the Applicant withdrew this
Application on 1st March, 2005 and filed afresh on 2 nd March, 2005 and
obtained a date for 16th March, 2005.

6. I am informed by the 1 st Defendant’s Advocates on record which

information I verily believe to be true that the Applicant has not annexed any
evidence to show that the 1st Defendant was in liquidation and what type of
liquidation when the suit was instituted and defended to support his reliance
on the provisions of Section 228 and 241 of the Companies Act.

7. I am informed by the 1 st Defendant’s Advocates on record which

information I verily believe to be true that The Consolidated Bank of Kenya
obtained a Vesting Order authorising it to handle the 1 st Defendant’s matters
after it went into liquidation.

8. I am informed by the Defendant’s Advocates which information I verily

believe to be true that the Applicant is relying on the alleged breach of
Section 65(1), Section 69 (a) and Section 74 of the Registered Lands Act
Cap 300 as a ground for this Application which are issues that should be
heard and determined at full hearing of this suit.

9. I am also informed by the said Advocates which information I verily believe

to be true that the Plaintiff/Applicant has made numerous Applications
within this suit and is delaying the hearing and final determination of this
suit.
 -3-

10. I am informed by our Advocates and do verily believe the same to be true
that the Plaintiff is estopped from this Application as he never Appealed the
Order of Justice Tank dated 18th February, 1992 and cannot now seek
without Appeal to overturn that Order. I annex hereto copies of the said
Order and Rulings and mark them exhibit “MFK-1”.

11. What is deponed to in this Affidavit is true of my own knowledge, save as to

statement of belief grounds whereof are disclosed.

SWORN at NAIROBI by the said

)
MWINYI FAKI KHATIB on )
)
)
his day of 2005. )
Before Me )
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0002/241)
Wabera Street,
P. O. Box 51385,
Nairobi.
To Be Served Upon:
George Gikubu Mbuthia,
Tawakal Shopping Complex
1st Avenue/5th Street Eastleigh,
P. O. Box 70063,
Nairobi.
Peter Njeru Mugo,
Cotts House (4th Fl.),
Wabera Street,
P. O. Box 4558,
00100 - Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 815 OF 2004

RAPID KATE SERVICES LTD ....……….……………....……..... APPLELLANT

-VERSUS-

DISMAS ORODI MUBWEKA …………......….………….....….. RESPONDENT

(Being an Appeal from the Judgement delivered by the Honourable Mrs. Owino
Senior Principal Magistrate on the 2nd September, 2004)

IN
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
CIVIL SUIT NO. 931 OF 2001

DISMAS ORODI MUBWEKA ……….………………….…..… PLAINTIFF

- VERSUS -
RAPID KATE SERVICES LTD. ……....……..…….…..…… DEFENDANT

SUPPLEMENTARY AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya practising as such in the firm

of Kairu & McCourt Advocates who have conduct of this suit on behalf of
the Defendant and I am duly authorised and competent to swear this further
Affidavit.

2. This suit was brought by the Plaintiff against the Defendant when the
Plaintiff was summarily dismissed by the Defendant on the 20 th March, 2000
and it is his allegation that his dismissal by the Defendant was unilateral,
arbitrary and unjustified.
…/2
 -2-

3. This Honourable Court failed to take into account that the Plaintiff was
arrested by Police Officers on 4th March, 2000 and was charged with
robbery. He was in jail for a period of 7 months between March 2000 and
September, 2000 and never released on bail.

4. The law clearly provides that an Employee can be summarily dismissed if he

is arrested for a consignable offence punishable by imprisonment and is not
within ten (10) days either released on bail or bond or otherwise lawfully set
at liberty.

5. Further the Plaintiff did not prove on a balance of probabilities malicious

prosecution on the part of the Defendant as the Plaintiff did not give
particulars of facts or matters upon which he relied on to show that the
Defendant acted maliciously.

6. The Defendant’s Appeal has a good chance of success as shown in the

annexed Memorandum of Appeal.

7. The Plaintiff/Respondent has not furnished any evidence that he would be

able to pay back the Decretal Amount if the same is paid by the Plaintiff.

8. That further the Defendant’s Advocates have by a letter dated 20 th

September, 2004 to the Executive Officer applied for issue of copies of
proceedings and judgement to facilitate the intended Appeal. Now produced
and shown to me are copies of the said letters marked as exhibit “JWN-2”.

9. I make this Supplementary Affidavit in support of the Defendant Company’s

application for Stay of Execution pending hearing and final determination of
the Appeal.
…/3
 -3-

10. Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.

11. I now produce exhibit “JWN”.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: R0027/044)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 328 ‘B’ OF 2001

SOSPETER G. KARIUKI .….…….……………………..….....…..… PLAINTIFF

- VERSUS -

COAST HAULIERS LIMITED ………….….…………..…..… 1ST DEFENDANT

ABDULLAH HOMAR …………….……...……...…………… 2ND DEFENDANT

-AND-

STANLEY M. MOKAYA …………….…………………………. THIRD PARTY

REPLYING AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;
1) I am an Advocate of the High Court of Kenya practicing as such with the
firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the 1st and 2nd Defendants and I am duly authorised and competent to
make this Affidavit.
2) I have read and understood the contents of the Plaintiff’s Chamber Summons
and Affidavit in support thereof dated 4th March, 2005 and wish to state as
follows;
3) The Plaintiff in this matter filed suit on 18 th May, 2001. According to the
Plaint, the cause of action arose in 1995. The claim against the Proposed 3 rd
Defendant is therefore statute barred.
4) The Plaintiff’s Advocate had more than enough time to carry out
investigations properly. Clearly there was undue delay in joining any other
party to this suit.
5) The Plaintiff’s Advocates have not proved that they were mislead as claimed
in paragraph 4 of the supporting Affidavit.
6) Further, the Plaintiff’s Advocates have not provided any evidence to support
the averments in paragraph 7 of the said Affidavit and there is no copy of
records annexed, substantiating their claim as stated in paragraph 8.
 -2-
7) The Plaintiff’s Advocates have therefore failed to show that they could not
have reasonably been expected to acquire the information. On the contrary,
the said information was readily available to the Plaintiff and/or his
Advocates.
8) In reply to paragraphs 8 and 14 of the said affidavit, we wish to state that the
1st Defendant is a distinct and separate entity from the proposed 3 rd
Defendant and there is no evidence presented to substantiate the claims.
9) It is the Plaintiff’s Advocates averment that they received the copy of
records in July 2004. This application was filed in March 2005, nine months
later. There is no reason whatsoever, given for this further delay.
10) In addition, the Plaintiff’s application is fatally defective as it is brought
under the wrong provisions of the law.
11) The Plaintiff’s Advocates are therefore guilty of laches and the said
application cannot succeed and should not be allowed.
12) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
)
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/353)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 2873 OF 2004

LEILA MOHAMED OMAR ……..……..…….…..…….…....…..… PLAINTIFF

- VERSUS -
ABDI HARSHI T/A
A. A. HARSHI …………..……………………..…...…….…….…. DEFENDANT

AFFIDAVIT

I, Steven Gatembu Kairu residing along Njathaini Road Kiambu and of Post Office
Box Number 51385, 00200 - Nairobi make oath and state as follows:

1) I am an Advocate of the High Court of Kenya and a partner in the firm of

Kairu & McCourt Advocates having the conduct of this matter on behalf of
Insurance Company of East Africa Limited the insurer of Plaintiff herein
exercising its rights of subrogation and I am duly authorised and competent
to make this Affidavit.

2) The Plaintiff herein filed suit against the Defendant on the 23rd March, 2004.

3) Summons to Enter Appearance were issued by the Honourable Court on 23 rd

March, 2004.

4) By a letter dated 16th July, 2003 Insurance Company of East Africa Limited
instructed Millennium Global Insurance Investigators to trace the physical
address of the Defendants herein. Now produced and shown to me is a copy
of the letter dated 16th July, 2003 marked as exhibit “SGK-1”.

5) The said investigators submitted their Investigation Report on the 25 th

August, 2003 detailing the physical address of the Defendant. Now
produced and shown to me is a copy of the said Investigation Report marked
as pages 2 – 8 of exhibit “SGK-1”.
 -2-

6) By letters dated 30th March, 2004 and 11th May, 2004 the my firm instructed
Messrs Kiarie Kariuki & Co. Advocates to serve the Defendants herein.
Now produced and shown to me are copies of the letters dated 30 th March,
2004 and 11th May, 2004 marked as pages 9 - 10 of exhibit “SGK-1”.

7) On 23rd June, 2004 the said Advocates wrote to my firm indicating that
despite engaging the services of two process servers they had been unable to
trace the Defendant for service. Now produced and shown to me is a copy
of an E-mail dated 23rd June, 2004 marked as page 11 of exhibit “SGK-1”.

8) By a letter dated 20th August, 2004 my firm wrote to Messrs Kiarie Kariuki
& Co. Advocates confirming the physical address of the Defendant and
seeking details as to why they had been unable to serve the Defendants.
Now produced and shown to me is a coy of a letter dated 20 th August, 2004
marked as page 12 of exhibit “SGK-1”.

9) On 23rd August, 2004 the said Advocates indicated that the Defendant herein
could not be traced at the physical address given to them by us and they
subsequently returned the Summons to my firm un-served on the 6 th of
September, 2004. Now produced and shown to me are copies of the letters
dated 23rd August, 2004 and 6th September, 2004 marked as pages 13 – 14 of
exhibit “SGK-1”.

10) Since then the my firm and the Plaintiff through Insurance Company of East
Africa Limited have continued to make determined efforts to trace the
Defendants.

11) The Plaintiff through Insurance Company of East Africa Limited is

determined to continue with this claim which is for a substantial amount.
 -3-

12) I make this Affidavit in support of the Plaintiff’s Application for extension
of validity of Summons.

13) Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.

14) I now produce exhibit “SGK-1”.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
)
this day of 2005. )
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/848)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 1474 OF 1997

KENYA CO-OPERATIVE CREMERIES …….…..…...……..…….... PLAINTIFF

-VERSUS -

EXPRESS KENYA LIMITED ……………………………....….1ST DEFENDANT

DICKSON MWANASI …………………………………...…... 2ND DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendants and I am duly authorised and competent to make this
Affidavit.

2) The Plaintiff herein filed suit against the Defendants on the 29th April, 1997.

3) Summons to Enter Appearance were issued by the Court on the 19 th day of

April, 1997 and served on the Defendants on or about the month of May
1997.

4) Pursuant thereto Messrs Kairu & McCourt filed a Memorandum of

Appearance on 26th May, 1997 and thereafter filed a Defence on 30 th May,
1997 on behalf of the Defendant.

5) An out of Court settlement was attempted but this did not proceed very far
as negotiations ground to a halt.

6) An attempt was made to fix this matter for hearing on the 11 th of May 2000
but the same was unsuccessful as the diary for the year 2000 was full.
 -2-

7) Since then the Plaintiff has not attempted to fix the suit for hearing and does
not seem keen enough to prosecute the same.

8) It is well over 5 years since the close of pleadings and this suit ought to be
dismissed as it is not right for the Defendant to have this matter pending
indefinitely.

9) I make this Affidavit in support of the 1 st Defendant’s Application by way of

Notice of Motion seeking that this suit be dismissed for want of prosecution.

10) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
)

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/422)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 9998 OF 2003

ALBERT MUTAVI SANI …...……….….…..…………..………….. PLAINTIFF

-VERSUS-

R. H. DEVANI LTD ……………………...………….….……….... DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendants and I am duly authorised and competent to make this
Affidavit.

2) The Plaintiff herein filed suit against the Defendant on 26th September, 2003.

3) Summons to Enter Appearance were issued by the Court on 29 th September,

2003 and served on the Defendant on or about the month of October, 2003.

4) Pursuant thereto Messrs Kairu & McCourt Advocates filed a Memorandum

of Appearance on 27th October, 2003 and thereafter filed a Defence on 10 th
November, 2003 on behalf of the Defendant.

5) An out of Court settlement was attempted but this did not proceed very far
for it ground to a halt.

6) On the 16th June, 2004 the matter came up for mention for the purposes of
fixing a hearing date. However we were unable to do so as we were
informed that the Court Diary for 2004 had been closed, therefore we had to
await for the 2005 Court Diary to be opened.
 -2-

7) Since then the Plaintiff has not attempted to fix the suit for hearing and the
Plaintiff does not seem keen enough to prosecute the same.

8) It is well over 9 months since the close of pleadings and this suit ought to be
dismissed as it is not right for the Defendant to have this matter pending
indefinitely.

9) I make this Affidavit in support of the 1 st Defendant’s Application by way of

Notice of Motion seeking that this suit be dismissed for want of prosecution.

10) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
)

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/850)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL SUIT NO. E. J. 266 OF 2001

ITABUILD IMPORTS LIMITED ……………….………….….…… PLAINTIFF

-VERSUS-

CONTECH CONSTRUCTION LIMITED ……….………..……... DEFENDANT

- AND -

LOISE NDUTA KAMONDI T/A

PAVEMENT & GENERAL CO. ……………………. OBJECTOR/APPLICANT

REPLYING AFFIDAVIT

I, Vittorio Veneziani of Post Office Box Number 19282, Nairobi in the Republic of
Kenya do make Oath and state as follows:
1) I am a Managing Director of the Plaintiff Company and I am competent and
duly authorised to swear this Affidavit on behalf of the Plaintiff Company.
2) I have read and understood the contents of the Objector’s Application dated
18th March, 2005 and make this Affidavit in reply and in opposition thereto.
3) I am informed by the Plaintiff’s Advocates on record which information I
verily believe to be true that since the institution of this suit the Defendant
has been served at the premises next to Kenya Institute of the Blind opposite
Kogo Star Plaza along Mai Mahiu Road Off Langata Road. Annexed hereto
is a copy of the Affidavit of Service marked as exhibit “VV-1”.
4) I am also informed by the Plaintiff Advocates on record which information I
verily believe to be true that the Objector did not make any complaint that
the said premises was not the Defendant’s place of service.
5) I am informed by our Advocates on record which information I verily
believe to be true that the Objector did not attach any evidence showing
what interest she has in the said proclaimed goods.
6) I am informed by the Plaintiff’s Advocates on record which information I
verily believe to be true that the Objector has all along not objected to
service being effected in that premises she should not then be allowed to
complain when execution is to be effected.
 -2-

7) I am further informed by the Plaintiff’s Advocates on record which

information I verily believe to be true that the Objector has not attached any
evidence to show that Pavement & General Company is an existing entity.
8) I am further informed by the Plaintiff’s Advocates on record which
information I verily believe to be true that the Objector did not attach any
evidence to show that the said premises is leased to her or the said Pavement
& General Company.
9) I am informed by the Plaintiff’s Advocates on record which information I
verily believe to be true that the receipt annexed as evidence has several
numbers 1628 and 1627 and furthermore does not comply with the
provisions of the Stamp Duty Act as it bears no Revenue Stamp.
Furthermore the same is for the year 2004, over a year ago.
10) I am informed by the Plaintiff’s Advocates on record which information I
verily believe to be true that the Objector has attached documents to her
Application that do not comply with Rule 10 of the Oaths and Statutory
Declarations Act because they do not bear the name of the person swearing
the Affidavit or the date when it was sworn.
11) I am further informed by the Plaintiff’s Advocates on record which
information I verily believe to be true that this is an attempt to delay the
execution of the Decree as the Objector is not assisting the Court with
documentary evidence.
12) What is deponed to in this Affidavit is true of my own knowledge, save as to
statement of belief grounds whereof are disclosed.
13) I now produce exhibit “VV”.

SWORN at NAIROBI by the said

)
VITTORIO VENEZIANI on )
)
)
his day of 2005. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
 -3-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0007/001)
Wabera Street,
P. O. Box 51385,
Nairobi.

To Be Served Upon:
Arusei & Co.,
Advocates,
Town House (6th Fl.),
Kaunda Street,
P. O. Box 67860,
00200 - Nairobi.

W. A. Ngaira & Company,

Advocates,
Pioneer House (6th Fl.),
Moi Avenue,
P. O. Box 58275,
Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL SUIT NO. 8691 OF 2000

A.K. MONTET ……………………….………….………………….….…… PLAINTIFF

-VERSUS-

TIMOTHY MUNYAO …….…..…………………..……..….….……. 1ST DEFENDANT

KENNEDY MWICHULI ……...………………….……..….….……. 2ND DEFENDANT

- AND -

ASHIOYA KUTSWA ………………………………………………………. OBJECTOR

REPLYING AFFIDAVIT

I, A. K. Montet of Post Office Box Number 43466, 00100 - Nairobi, in the Republic of
Kenya do make Oath and state as follows:

1. I am the Plaintiff in this suit I am competent to swear this Affidavit.

2. I have read and understood the Objector’s Application dated 21st March 2005 and
the Affidavit in support thereof and I make this Affidavit in opposition and in
reply thereto.

3. I am informed by my Advocates which information I verily believe to be true that

since the institution of this suit service has been effected on the 2 nd Defendant at
Jericho Lumumba Estate House No. 5383. Annexed hereto is a copy of the
Affidavit of Service marked as exhibit “AKM-1”.

4. I am also informed by my said Advocates which information I verily believe to be

true that the for a period of four years the known residence of the 2 nd Defendant
has been the said house, the Objector has neither complained nor made it known
that the address is not correct.

5. I am informed by my Advocates which information I verily believe to be true that

the Objector has only attached receipts for the months of January and February
2005 and this is not conclusive that the house belongs to him.
 -2-

6. I am further informed by my Advocates which information I verily believe to be

true that the objector has not annexed any evidence to show that the proclaimed
goods belong to him.

7. I am informed by the said Advocates which information I verily believe to be true

that the Objector has only complained when Warrants of Attachment have issued
which is an attempt to deny the Plaintiff the chance to execute against the 2 nd
Defendant.

8. Save where the source of my information otherwise appears I make this Affidavit
from facts within my own knowledge the truth of which I verily believe.

9. I now produce exhibit “AKM”

SWORN at NAIROBI by the said )

A. K. MONTET on )
)
)
this day of 2005. )
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: M0006/006)
Wabera Street,
P. O. Box 51385,
Nairobi.
To Be Served Upon:
Lutta & Company,
Advocates,
Jameson Court (Ground Fl.), (Block A),
Ngong Road,
P. O. Box 73705,
Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 290 OF 2002

SUPER EXPO LIMITED ....……………….......……….......... DECREE-HOLDER

-VERSUS-

MERCHANISED CARGO SYSTEMS LTD .……......... JUDGEMENT-DEBTOR

-AND-

IMPERIAL BANK LIMITED ……………..….…………………. 1ST OBJECTOR

CALTEX OIL (K) LIMITED ………….…..……………………. 2ND OBJECTOR
RAPAT FREIGHT (K) LIMITED ……………..…..……………. 3RD OBJECTOR

REPLYING AFFIDAVIT

I, Steven Gatembu Kairu residing in Kiambu and of Post Office Box Number
51385, 00200 - Nairobi make oath and state as follows:

1. I am an Advocate of the High Court of Kenya and a partner in the firm of

Kairu & McCourt Advocates having conduct of this matter on behalf of the
Plaintiff/Judgement Creditor and I am competent and authorised by the
Plaintiff to make this Affidavit.

2. I have read the Chamber Summons dated 3 rd March, 2005 filed herein by
Messrs Nyaencha Waichari & Company Advocates and the Affidavit of
Simon Tongi sworn on 3rd March, 2005 and I make this Affidavit in reply
thereto.

3. The deponent Simon Tongi who claims to be the Administration Manager of

the 3rd Objector testified before this Court on 8 th April, 2004 and stated that
he is the Insurance Manager of the Defendant.

.../2
 -2-

4. In an Affidavit sworn herein on 30 th August, 2004 by the same Simon Tongi

in support of an Application for stay of execution he deponed that he is a
Manager with the Defendant.

5. Following the Application for Stay of Execution Consent Orders were

recorded in Court on 8th September, 2004 in terms that;

i) The Defendant/Applicant to deposit the entire decretal sum of Kshs.

690,146/00 at CFC Bank in a joint account with us within 21 days
(from 8th September 2004).

ii) The Defendant/Applicant to pay auctioneers fees of Kshs. 5,220/00

within 21 days of the same date.

iii) In default of these conditions execution do issue without notice.

iv) Proclamation herein to be lifted once condition (i) has been fulfilled.

v) Costs of application be in the cause.

6. In purported compliance with the Consent Orders the Defendant issued a

cheque which was dishonoured on presentation with remarks “refer to
drawer”. A copy of the cheque, the debit advice and Messrs Kairu &
McCourt Advocates letter dated 29th November, 2004 to the Defendant’s
Advocate are now produced and shown to me marked as pages 1 - 3 of
exhibit “SGK-1”. I am also aware that the Plaintiff’s cheque in settlement of
auctioneers charges was also dishonoured. Now produced and shown to me
is a copy of the Court Broker’s letter to my firm dated 6 th January, 2005
together with a copy of the dishonoured cheque marked as pages 4 - 5 of
exhibit “SGK-1”.

…/3
 -3-

7. There is nothing to show that any of the goods attached are the property of
the objectors and I urge the Court to find the Application to be an abuse of
the Court process and to dismiss it with costs.

8. The Affidavit of Simon Tongi in support of the Application is also defective.

9. I urge the Court to dismiss the Application with costs and permit execution
to proceed.

10. I make this Affidavit as such advocate from facts contained in my firm’s
record of this matter the truth of which I verily believe.

11. I now produce exhibit “SGK-1”.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
this day of 2005. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: S0028/005)
Wabera Street,
P. O. Box 51385,
Nairobi.
To Be Served Upon:
Nyaencha Waichari & Company,
Advocates,
New Hurlingham Plaza (3rd Fl.),
Argwings Kodhek Road,
P. O. Box 79630,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATES COURT AT THIKA
CIVIL CASE NO. 153 OF 2005

AVERY KENYA LIMITED ……………………....………….…….... PLAINTIFF

-VERSUS -

GILBERT GITHEGI KARUGA ……...………….…….……… 1ST DEFENDANT

JOHN MWAURA KAHIGA ……………………..…………… 2ND DEFENDANT

AFFIDAVIT

I, R. N. Mwangangi of P. O. Box 30376 Nairobi in the Republic of Kenya do

solemnly make Oath and state as follows: -

1) I am the Manager Legal of The Jubilee Insurance Company

Limited who are the insurers of the Plaintiff Company and at whose instance
this suit is brought under the rights of subrogation I am therefore duly
authorised and competent to make this Affidavit.

2) The Plaint in this matter was filed on 11 th February, 2005 and

the Summons to Enter Appearance were issued on the same date.

3) I am informed by the Plaintiff’s Advocates on record Messrs

Kairu & McCourt that on 25th February, 2005 they forwarded the Summons
to Enter Appearance to a Process Server, Mbunge Enterprises to effect
service upon the Defendants herein.

4) I am also informed by the said Advocates that on 4 th March,

2005 they received a letter dated 3 rd March, 2005 from the said Process
Server stating that he had not managed to serve the 1 st Defendant personally
as the 1st Defendant had since passed away on 7th December, 2004. Now
produced and shown to me is a copy of the said letter dated 3 rd March, 2005
marked as page 1 of Exhibit “RNM – 1”.
 -2-

5) The Process Server had stated in the said letter that he had
instead served one Mary Wanjiru Munene the deceased’s (1 st Defendant)
wife and with the Summons to Enter Appearance.

6) On 27th June, 2005 the Plaintiff’s Advocates on record wrote

to us a letter advising us to engage an investigator to establish whether the
said Mary Wanjiru Munene was truly the deceased’s (1 st Defendant) wife to
enable them prepare an application for substitution. Now produced and
shown to me is a copy of the said letter dated 27 th June, 2005 marked as page
2 of Exhibit “RNM – 1”.

7) By a letter dated 15th July, 2005 we instructed Messrs

Invespot Insurance Investigators to establish who was the Administrator of
the deceased’s (1st Defendant) estate for purposes of substitution. Now
produced and shown to me is a copy of our letter dated 15 th July, 2005
marked as page 3 of Exhibit “RNM – 1”.

8) On 17th August, 2005 we received a copy of the said

investigator’s report also dated 17th August, 2005 in which the investigators
found that the above-mentioned Mary Wanjiru Munene was not truly the
deceased’s (1st Defendant) wife. Further that the deceased’s (1st Defendant)
father had since passed away but his mother one Leah Waithira Karuga was
still alive. Now produced and shown to me is a copy of the said
investigator’s report dated 17th August, 2005 and marked pages 4 – 8 of
Exhibit “RNM – 1”.

9) I verily believe the contents of the above investigator’s report

to be true and that the deceased’s (1st Defendant) mother is Leah Waithira
 Karuga and it is fair that the deceased’ mother be substituted for the
deceased (1st Defendant) to enable the Plaintiff proceed with this suit.

-3-

10) I now swear this Affidavit in support of the application to

substitute the said Leah Waithira Karuga for the deceased (1 st Defendant as
the legal representative of the deceased’s estate for purposes of this suit.

11) Save where the source of my information otherwise appears, I

make this Affidavit from facts within my own knowledge save

12) I now produce Exhibit “RNM – 1”.

SWORN at NAIROBI by the said

)
R. N. MWANGANGI on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/421)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 5294 OF 2003

FESTUS MUTIE KATILI …………………….…..………..………… PLAINTIFF

-VERSUS-

SADOLIN PAINTS (E. A) LIMITED ………....………………….. DEFENDANT

AFFIDAVIT

I, R. N. Mwangangi of P. O. Box 30376 Nairobi in the Republic of Kenya do

solemnly make Oath and state as follows: -

2. I am the Manager Legal of The Jubilee Insurance Company Limited who are
the insurers of the Defendant and I am therefore duly authorised and
competent to make this Affidavit.

3. We instructed the firm of Kairu & McCourt Advocates to file a

Memorandum of Appearance and Defence herein on 30th June 2003 which
they duly did on 3rd July, 2003 and 16th July, 2003 respectively.

4. Based on the Court record it is the Defendant’s contention that the accident,
the subject matter of this suit was solely caused by the Plaintiff herein.

5. Based on the Court record, the Plaintiff on paragraph 3 of his Plaint has
admitted that the proposed 3rd Party were his employers.

6. For this reason I am informed by our said Advocates which information I

verily believe to be true that the 3rd Party is vicariously liable for the
Plaintiff’s accident and should be rightly joined to this suit in terms of the
draft annexed 3rd Party Notice. Now produced and shown to me is a copy of
the 3rd Party Notice marked as exhibit “RNM-1”.
 -2-

7. I am further informed by the said Advocates and I verily believe the same to
be true that it is just and proper that Suneeth Enterprises be joined in this suit
by way of Third Party Proceedings to facilitate the determination of the issue
of liability.

7. Save as hereinabove expressly admitted, I make this Affidavit from facts

within my own knowledge the truth of which I verily believe.

8. I now produce exhibit “RNM”.

SWORN at NAIROBI by the said

)
R. N. MWANGANGI on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/412)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 6260 OF 2001

BULLEYS TANERRIES LTD .………………..………………….... PLAINTIFF

-VERSUS-
HARRIS HORN ……………………………….………………...… DEFENDANT
-AND-
JOSEPH KINUTHIA ……………………….…………..…… 1ST THIRD PARTY
SERENA HOTEL NAIROBI ………………..……………… 2ND THIRD PARTY

REPLYING AFFIDAVIT

I Joyce Wamucii Ndumia of Post Office Box Number 51385 Nairobi in the
Republic of Kenya do hereby make Oath and state as follows:

1) I am an Advocate of the High Court of Kenya practising as such with the

firm of Kairu and McCourt Advocates who have the conduct of this matter
on behalf of the Plaintiff/Applicant and I am duly competent to make this
Affidavit.

2) That contrary to paragraph 4 of the Applicant’s Affidavit, the matter was

indeed listed, heard and stood over generally on the 18th of September 2002.

3) That the letter referred to in paragraph 7 of the said Affidavit is erroneously

annexed as an exhibit as it is addressed “Without Prejudice”. Consequently
the said Affidavit is defective and therefore should be struck out.

4) That the said Notice was issued on the 21st of September 2003, one year after
the matter was last heard in court on the 18 th of September 2002.
Subsequently the Court did have the jurisdiction to dismiss the suit as due
process was followed in issuing the said Notice.
 -2-

5) From the foregoing it is clear that the arguments contained in paragraph 12

and 13 of the said Affidavit do not contain sufficient cause as to why this
Application should be allowed and the suit be reinstated.

6) Furthermore it was the duty of the Plaintiff’s Advocate as is common

procedure to enquire from the registry as to why the suit had not been listed
on the 21st of September 2003. Had they done so, they would have been
informed that the case was indeed heard and stood over generally. This is a
procedure they are familiar with as they indicated in paragraph 18 of their
Affidavit.

7) The Plaintiff is clearly guilty of laches as is evidenced by the inordinate

delay it has taken him to file this Application.

8) In view of the aforementioned reasons I pray that this Application be

disallowed?????????????????????????????????with costs to the Plaintiff.

1) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
JOYCE WAMUCII NDUMIA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
 -3-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/386)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 11429 OF 2003

GONDOA WANGILA MAURICE ...….…..……………..………….. PLAINTIFF

-VERSUS-

CIRIO DEL MONTE (K) LIMITED …...…….………………….... DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practising as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendants and I am duly authorised and competent to make this
Affidavit.

2) The Plaintiff filed this suit on 5th November, 2003.

3) The Defendant entered appearance on 11 th December, 2003 and filed

Defence on 18th December, 2003 through its Advocates Messrs Kairu &
McCourt Advocates (hereinafter referred to as “the firm”).

4) On 28th January, 2004 the matter was fixed for hearing on 16 th June, 2004 by
consent of the parties’ Advocates.

5) On 31st March, 2004 the firm wrote a letter to the Plaintiff’s Advocates
requesting them to refer the Plaintiff for a second medical examination prior
to the Hearing date. Now produced and shown to me is a copy of the letter
dated 31st March, 2004 marked as page 1 of exhibit “VMM-1”.
 -2-

6) On 6th May, 2004 the firm received a letter from the Plaintiff’s Advocates
informing us that the Plaintiff’s Advocates would notify us once the Plaintiff
underwent a second medical examination. Now produced and shown to me
is a copy of the letter dated 6 th May, 2004 marked as page 2 of exhibit
“VMM-1”.

7) On 16th June, 2004 the matter came up for hearing but could not proceed as
the Plaintiff had not undergone a second Medical examination despite
adequate prior notice. The matter was stood over severally and the Plaintiff
condemned to pay Court Adjournment Fees.

8) The Plaintiff’s Advocates invited the firm vide a letter dated 20 th September,
2004 to fix the matter for hearing on 13th October, 2004 but my Court Clerk
informed me which information I believe to be true that there was no
attendance at the court registry by the Plaintiff’s Advocate’s representative
hence no date was taken. Now produced and shown to me is a copy of the
said letter dated 20th September, 2004 marked as page 3 of exhibit “VMM-
1”.

9) The Plaintiff’s Advocates again invited the firm vide a letter dated 21 st
October, 2004 to fix the matter for hearing at the Court registry on 4 th
November, 2004 but my Court Clerk informs me which information I
believe to be true that the matter was not listed and once again no date was
taken. Now produced and shown to me is a copy of the letter dated 21 st
October, 2004 marked as page 4 of exhibit “VMM-1”.

10) It is well over 12 months since the matter was last in Court and well over 7
months since the Plaintiff took any step in this matter.
 -3-

11) The Plaintiff does not seem to be keen to prosecute the suit and it is unfair to
allow the same to continue dangling over the Defendant’s head indefinitely
it is therefore only fair to dismiss the same.

12) I make this Affidavit in support of the Defendant’s Application by way of

Notice of Motion seeking that this suit be dismissed for want of prosecution.

13) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

14) I now produce exhibit “VMM-1”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/430)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 1687 OF 2002

PURPLE HEARTS HEALTH LINE CO. LTD .…………….……..… PLAINTIFF

-VERSUS-

ACACIA MEDICAL CENTRE LIMITED ……………..…..…….. DEFENDANT

AFFIDAVIT

I, Christopher Getonga of Post Office Box Number 61405, Nairobi in the Republic
of Kenya solemnly make oath and state as follows:

1) I am the Managing Director of the Defendant’s Company and I am duly

authorised and competent to swear this Affidavit.

2) I am informed by the Defendant’s Advocates which information I verily

believe to be true that the Plaintiff herein moved to Court under Certificate
of Urgency on 11th November, 2002 to obtain a mandatory injunction to
compel the Defendant to release medical files.

3) I am informed by the Defendant’s Advocates which information I verily

believe to be true that on the 21 st of November, 2002 the Plaintiff’s
Advocate was given leave to file a Supplementary Affidavit within 3
working days which he has not done.

4) I am further informed by the Defendant’s Advocates which information I

verily believe to be true that the Plaintiff has not shown any interest in
prosecuting this suit for three years.

5) I am also informed by the Defendant’s Advocates which information I verily

believe to be true that the matter was last in Court on 23rd September, 2004.
 -2-

6) I am informed by the Defendant’s Advocates which information I verily

believe to be true that it is well over three months since the close of
pleadings and that the matter was not in Court yet the Plaintiff has not set
this matter for hearing.

7) I am informed by the Defendant’s Advocates which information I verily

believe to be true that in the premises the same ought to be dismissed for
want of prosecution with costs to the Defendant.

8) Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said )

CHRISTOPHER GETONGA on )
)
)
this day of 2005. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: A0022/008)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 2953 OF 2003

DOMINIC KIARIE KIBATHI ……..….……….…..…….…....………….… PLAINTIFF

- VERSUS -

TOWN SAFARIS LIMITED ……………..……..….………..….…….…. DEFENDANT

AFFIDAVIT

I, Steven Gatembu Kairu residing along Njathaini Road Kiambu and of Post Office Box
Number 51385, 00200 - Nairobi make oath and state as follows:

1) I am an Advocate of the High Court of Kenya and a partner in the firm of Kairu &
McCourt Advocates having the conduct of this matter on behalf of the Jubilee
Insurance Company Limited the insurer of Plaintiff herein exercising its rights of
subrogation and I am duly authorised and competent to make this Affidavit.

2) The Plaintiff herein filed suit against the Defendant on the 27th March, 2003.

3) Summons to Enter Appearance were issued by the Honourable Court on 27 th

March, 2003.

4) By an Application dated 3rd March, 2004 my firm applied for an extension of

validity of Summons to enter Appearance and the same was extended for a further
period of one year by a Court Order delivered on 15th April, 2004.

5) By an Email dated 26th May, 2004 the Plaintiff through The Jubilee Insurance
Company Limited wrote to Jubilee Insurance Company Limited in Tanzania,
where the Defendant was suspected to operate from, requesting that investigations
be instituted to establish whether the bus was a Tanzanian registered bus and if so
who the owners/directors are. Now produced and shown to me is a copy of the
said E-mail dated 26th May, 2004 marked as page 1 of exhibit “SGK 1”.

…………/2
 -2-

6) Further, by a letter dated 26th May, 2004 the Plaintiff through The Jubilee
Insurance Company Limited engaged Counterstrike Limited to re-investigate the
accident with a view to establishing ownership particulars of the bus in Kenya.
Now produced and shown to me is a copy of the said Email dated 26 th May, 2004
marked as page 2 of Exhibit “SGK 1”.

7) The Plaintiff informs me which information I verily believe to be true that

investigations are proceeding albeit at a slow pace owing to the complex and
delicate nature of the inquiries being made.

8) I make this Affidavit in support of the Plaintiff’s Application for extension of

validity of Summons.

9) Save where the source of my information otherwise appears, I make this Affidavit
from facts within my own knowledge the truth of which I verily believe.

10) I now produce exhibit “SGK-1”.

SWORN at NAIROBI by the said )

STEVEN GATEMBU KAIRU on )
)
)
this day of 2005. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/358)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1475 OF 1990

ROSE CHEMUTAI ………………………………………………….. PLAINTIFF

-VERSUS -

VICTOR KIBENEI KITUR ……………...…….…..….………. 1ST DEFENDANT

AMON MUNGAI ……………..………...…….…..………..…. 2ND DEFENDANT
(By Original Action)

AMON MUNGAI …….………..………...…….………….…………. PLAINTIFF

-VERSUS -

VICTOR KIBENEI KITUR ……………...…….……....………….. DEFENDANT

(By Counterclaim)

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendants and I am duly authorised and competent to make this
Affidavit.

2) The Plaintiff herein filed this suit in Court by a Plaint dated 21 st March,
1989.

3) The firm of Kimani Kairu filed a Memorandum of Appearance for the 2 nd

Defendant on 11th February 1991 and filed a Defence on 21st February 1991.

4) The 2nd Defendant’s Advocates filed an Amended Defence and

Counterclaim on 31st July 1991 was duly served.
 -2-

5) The 2nd Defendant’s Advocate filed a request for Judgement on the

Counterclaim on 6th September, 1992 which was granted on 29 th October,
1992.

6) The Plaintiff’s Advocate has not attempted to fix this matter for hearing
since 30th January, 2002. Now produced and shown to me is a copy of the
invitation to fix for hearing marked as page 1 of exhibit “JWN-1”.

7) The Defendant’s Advocates have tried severally to fix this matter for hearing
but the matter has not proceeded.

8) The Plaintiff has not shown interest in prosecuting this suit since filing it 16
years ago.

9) Furthermore this matter was stood over generally on 27 th April 2000 and it
has not been to Court since therefore this suit out to be dismissed.

10) I make this Affidavit in support of the Defendant’s Application by way of

Notice of Motion seeking that this suit be dismissed for want of prosecution.

15) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said)

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
 -3-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/030)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA NAIROBI
CIVIL SUIT NO. 99 OF 2004

JASVINDER SINGH ENTERPRISES LTD ………..………....…..…PLAINTIFF

- VERSUS -

SHADRACK TABOSEI CHEPTOO ………..……….………..1ST DEFENDANT

JOHANNA C. CHEBEI …..………………………….….…… 2ND DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya working with the firm of Kairu
& McCourt Advocates who have conduct of this suit on behalf of the
Defendant and I am duly authorised and competent to make this Affidavit.

2. The suit herein relates to an accident on or about 28 th August, 1997 whereby

the Plaintiff suffered loss and damage occasioned to it after a collision
between its motor vehicle registration number KAH 227V (Trailer ZB 6394)
and motor vehicle KYY 799.

3. As a result the Plaintiff instituted this suit and sought compensation for loss
and damage from the Defendants herein.

4. At the time the suit was instituted, it was prudent to invoke the jurisdiction of
this Honourable Court since the anticipated award far exceeded the pecuniary
jurisdiction of the Chief Magistrate’s Court, Eldoret.

5. The pecuniary jurisdiction of the Chief Magistrate’s Court has now been
enhanced as per Gazette Notices Nos.4888, 4889 and 4890 of 2002 and the
Plaintiff would be adequately compensated by the sub-ordinate Court. The
said Gazette Notices are attached and marked exhibit “JWN-1.”
 -2-

6. I swear this Affidavit in support of this Application and what I have deponed
is correct to the best of my knowledge, information and belief save where
otherwise stated.

7. Save where the source of my information otherwise appears, I make this

Affidavit from facts within my knowledge and as contained in the office file
the correctness of which I verily believe.

SWORN at NAIROBI by the said

)
JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005. )
)
Before Me )
)
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/501)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 990 OF 2005
PETER GATHERI WAIGWA …….…………....…………...……… PLAINTIFF
- VERSUS -

CFC BANK LIMITED ……….….....……………………..……… DEFENDANT

REPLYING AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows:

1) I am the Manager, Legal Services of the Defendant Company and I am

competent and duly authorised to swear this Affidavit on its behalf.

2) I have read and understood the contents of the Plaintiff’s Application dated
12th May, 2005 and the Affidavit in support thereof sworn by the Peter
Gatheri Waigwa on the same date and wish to state as follows;

3) I am informed by the Defendant’s Advocates which information I verily

believe to be true that the Plaintiff has not annexed any evidence to show
how he will suffer substantial loss if the Defendant proceeds with the sale of
the vehicle.

4) I am further informed by our Advocates and do verily believe the same to be

true that this suit was filed on 1 st February, 2005 which is well over 3
months ago and the Plaintiff has not annexed any evidence showing the
income he claims to be losing daily.

5) The motor vehicle that is the subject matter of this suit was repossessed after
the Plaintiff failed to meet his obligation under the Hire Purchase Agreement
and the Defendant exercised its rights under 5(a) of the Hire Purchase
Agreement. Annexed hereto is a copy of the Hire Purchase Agreement
marked as exhibit “RWK-1”.
 -2-
6) The Defendant Company has incurred storage charges since repossessing the
vehicle on 8th January 2005 at the rate of 120/00 exclusive of 16% VAT per
day so far the amount incurred is Kshs 18,096/00 and if the motor vehicle is
not sold these storage charges will continue to accrue at the expense of the
Defendant Company since it will accrue to the Plaintiff’s debt thus reducing
the value of its security on the Hire Purchase Agreement.
7) I am informed by the Defendant’s Advocates which information I verily
believe to be true that the Plaintiff has not deposited security in Court for the
amount owed to the Defendant and the costs of the last application in the
event the appeal is not successful.
8) The Defendant Company is a reputable bank that has adequate resources and
is capable of refunding the Plaintiff any costs that he may prove that he has
incurred should he be successful in his Appeal.
9) The Defendant’s Advocates also inform me which information I verily
believe to be true that the Plaintiff has not come to Court with clean hands
and should not therefore be allowed to deny the Defendant Company its
rights under the Hire Purchase Agreement.
10) That what is deponed to herein is true to the best of my knowledge,
information and belief.
SWORN at NAIROBI by the said
)
RITA WAMBUI KURIA on )
)
)
this day of 2005. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
 -3-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/196)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 2335 OF 2004

ADELA RWABUDARIKO &

CLAVER RWABUDARIKO ………..………....………………………..… PLAINTIFFS

- VERSUS -

FARMERS CHOICE LIMITED …..…………………………...…….……

DEFENDANT

REPLYING AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, Nairobi in the Republic of
Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya working with the firm of Kairu &
McCourt Advocates who have conduct of this suit on behalf of the Defendant and
I am duly authorised and competent to make this Affidavit.

2. I have read and understood the Plaintiff’s Application dated 5 th May, 2005 and its
supporting Affidavit and I make this Affidavit in opposition and reply thereto.

3. That the Honourable Magistrate did in fact take into account the awards under
Fatal Accidents Act and Law Reform Act, on page 6 paragraph 2 of the
Judgement, by deducting the amount awarded under Law Reform Act from the
amount awarded under the Fatal Accident Act.

4. That the claim for loss of the motor vehicle registration number RR84.96B should
not be awarded as there was no proof of ownership of the motor vehicle, no proof
of the true worth of the motor vehicle after assessment and no proof of the salvage
value claimed.

5. The Assessor’s fees claimed by the Plaintiff were not pleaded in the Plaint and the
receipts produced in Court did not comply with the Stamp Duty Act and therefore
the same should not be awarded.
 -2-

6. Further the Assessor’s attendance fees claimed by the Plaintiff were neither
pleaded nor proved as the receipts did not bear revenue stamps and thus should not
be awarded.

7. The Plaintiff is attempting to use the Court process to get more than he is entitled
to.

8. Save where the source of my information otherwise appears, I make this Affidavit
from facts within my knowledge and as contained on the court records the
correctness of which I verily believe.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/818)
Wabera Street,
P. O. Box 51385,
Nairobi.
To Be Served Upon:
Njoroge Nyagah & Company,
Advocates,
Travel House (5th Fl.), (File Ref: NNA/MM/3324/00)
Muindi Mbingu Street,
P. O. Box 59925,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 1859 OF 2005

KENNETH KAVITA KILUHULI .….…….……………..……..….....…..… PLAINTIFF

- VERSUS -

DEACONS KENYA LIMITED …………….….……..………………..… DEFENDANT

AFFIDAVIT

I, Muchiri Wahome residing in Nairobi and of Post Office Box Number 30087, 00100 -
Nairobi in the Republic of Kenya do make Oath and state as follows:

1) I am the Managing Director of the Defendant Company and I am competent and

duly authorised to swear this Affidavit on its behalf.

2) The Plaintiff was employed by the Defendant Company on 19th June, 1989 in the
first instance as a cleaner but was promoted through the years to the position of
Product Merchandiser until 31st December, 2004 when he voluntarily resigned
from the Defendant Company.

3) Upon his resignation the Plaintiff was fully paid all his dues receipt of which he
duly acknowledged in writing and discharged the company thereof by signing a
caption at the bottom of a letter dated 28 th January, 2005 addressed to the Plaintiff
by the Defendant Company. Now produced and shown to me is a copy of the
letter dated 28th January, 2005 marked a page 1 of exhibit “MW-1”.

4) To the best of my knowledge the Plaintiff’s dues were fully paid and the
Defendant Company does not owe the Plaintiff any money.

5) I was therefore surprised when auctioneers came to the Defendant’s premises on

19th May, 2005 to proclaim the Defendant Company’s property in respect of a
Judgement entered for the Plaintiff against the Defendant for sums of money
allegedly owed by the Defendant to the Plaintiff.

6) On 20th May, 2005 I sought legal advice on the matter from the Defendant’s
Advocate Messrs Kairu & McCourt Advocates.
 -2-

7) The said Advocates now inform me which information I verily believe to be true
that upon perusing the Court file they have established from the Affidavit of
Service sworn by the Process Server that Summons to Enter Appearance and a
copy of the Plaint were served upon Ms Anne Waititu a secretary with the
Defendant Company.

8) I have now consulted the said Ms Anne Waititu on the matter and she admits
having received the documents but had inadvertently filed them away without
informing me.

9) The management of the Defendant Company had no knowledge of this suit and no
demand was ever received by the Defendant Company in respect of the said sums
of money and the omission to enter appearance and file a Defence was inadvertent
and a honest mistake.

10) Further the Plaintiff is neither entitled to any gratuities or severance pay under the
Employment Act (Cap 226) nor the Regulation of Wages and Conditions of
Employment Act (Cap 227) as the Plaintiff had voluntarily resigned as opposed to
being laid off on grounds of redundancy.

11) Also the Plaintiff is not entitled to a gratuity pay since the contract of employment
between the Plaintiff and the Defendant, captured in the Plaintiff’s Letter of
Appointment dated 19th June, 1989, did not have such a provision. Now produced
and shown to me is a copy of the Plaintiff’s Letter of Appointment dated 19 th June,
1989 marked as pages 2 to 3 of exhibit “MW -1”.

12) The Defendant herein has a good Defence which raises triable issues and it would
be in the interest of justice if this matter was to go to a full trial.

13) The omission to enter an appearance and filing a Defence is not inordinate and
was inadvertent and the Plaintiff will not suffer any harm if this Application is
allowed as the Defendant Company is ready to pay the Plaintiff throw away costs.
 -3-

14) Further any inconvenience caused to the Plaintiff is deeply regretted and the
Defendant Company is ready to provide the Plaintiff with security for the decretal
sum in the event that the Plaintiff is successful and to that end the Defendant
Company is ready to abide by any terms and conditions that this Honourable Court
orders fit.

15) In any event the execution proceedings herein are irregular since the Plaintiff did
not serve the Defendant Company with the Mandatory Notice of Judgement under
the provisions of Order XXI Rule 6 of the Civil Procedure Rules.

16) If the Application is not allowed the Defendant is likely to suffer great harm as the
claim involves a substantial sum of money.

17) I make this Affidavit in support of the Application to set aside Judgement in
default of Appearance and Defence.

18) That what is deponed to herein is true to the best of my knowledge, information
and belief.

19) I now produce exhibit “MW-1”.

SWORN at NAIROBI by the said )

MUCHIRI WAHOME on )
)
)
this day of 2005. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: D0013/003)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 11429 OF 2003

GONDOA WANGILA MAURICE ..……..........….......….................... PLAINTIFF

-VERSUS-

CIRIO DEL MONTE (K) LIMITED ...............................…….....…. DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya practising as such in the name

and firm of Kairu & McCourt Advocates who have conduct of this suit on
behalf of the Defendant herein and I am duly authorised to make this
Affidavit.

2. The Plaintiff herein filed suit against the 5th November, 2003.

3. The Defendant entered appearance on 11 th December, 2003 and filed a

Defence on 18th December, 2003 through its Advocate Messrs Kairu &
McCourt Advocates (hereinafter referred to as “the firm”).

4. On 28th January, 2004 the matter was fixed for hearing on 16 th June, 2004 by
consent of the parties Advocates.

5. On 31st March, 2004 the firm wrote a

9. Since then a period of one year has passed and the Plaintiff has not made any
effort to have the suit set down for hearing.
10. Further the Defendant is prejudiced by the fact that legal costs continue to
accrue.

-2-

11. I make this Affidavit in support of the 1 st Defendant’s Application by way of

Notice of Motion seeking that this suit be dismissed for want of prosecution.

12. Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2005. )
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/430)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
.
 REPUBLIC OF KENYA
IN THE CHIEF RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 2485 OF 2003
WHITE ROSE DRYCLEANERS LTD ………..………………..….……….. PLAINTIFF
-VERSUS -
SAMUEL MWANGI KAMAU …………..……….......…………….……. DEFENDANT

REPLYING AFFIDAVIT

I, Dinah Musungu of Post Office Box Number 30376, 00100 - Nairobi, in the Republic of
Kenya do make Oath and state as follows:

1) I am the Assistant Manager Legal of The Jubilee Insurance Company Limited who
are the insurers of the Plaintiff Company and I am competent and authorised to
swear this Affidavit.
2) I have read and understood the contents of the Defendant’s Chamber Summons
application dated 12th May, 2005 and wish to respond as follows.
3) We instructed the firm of Kairu & McCourt Advocates (hereinafter referred to as
the firm) to file suit against the Defendant which they did on the 17th March 2003.
4) According to the Court records Summons to Enter Appearance were issued on the
17th of March, 2005 for the Defendant herein one Samuel Mwangi Kamau of P. O.
Box 1768, Nairobi.
5) According to the Affidavit of Service on record sworn by Alex S. Mutua dated 9 th
May, 2003 the Defendant was served on 2nd May, 2003.
6) According to the Court Records the Plaintiff was invited to fix the matter for
formal proof by a letter dated 29th October, 2003 not withstanding the fact that he
had failed to enter an appearance. Now produced and shown to me is a copy of
the said letter and Certificate of Posting marked as pages 1 - 2 of exhibit “DM”.
7) Further, according to the Court records the Plaintiff was once again invited to fix a
hearing date for formal proof via letter dated 25th February, 2004. Now produced
and shown to me is a copy of the said letter and Certificate of Posting marked as
pages 3 -4 of exhibit “DM”.
 -2-
8) The Defendant has admitted on paragraph 3 that he did receive Notice of
Judgement sent by the firm and his annexure “SMK1” states that his address is P. O.
Box 1768, Thika.
9) Based on the foregoing the Defendant cannot therefore deny having knowledge of
this suit since in the above documents he is one and the same person and his postal
address is the same.
10) In response to paragraph 9 of the said Affidavit I am informed by our Advocates
on record that the Affidavit is properly drawn and the information in it is accurate.
11) The annexed Defence does not sufficiently raise triable issues.
12) The Defendant’s application is unmeritorious and seeks to deny the Plaintiff his
just rewards and I swear this Affidavit praying that his application be dismissed
with costs
13) Save where the source of my information otherwise appears I make this Affidavit
from facts on record and within my own knowledge the truth of which I verily
believe.

14) I now produce exhibit “DM”.

SWORN at NAIROBI by the said )

DINAH MUSUNGU on )
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/389)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT GATUNDU
CIVIL SUIT NO. 328 OF 2002

JACKSON KIIRU GACHIRI ………...….……………....…...……… PLAINTIFF

- VERSUS -
GARTON LIMITED ……….………….……….……..…………… DEFENDANT

SUPPORTING AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendant and I am duly authorised and competent to make this
Affidavit.

2) This suit was filed by the Plaintiff on 23 rd May 2002 through the firm of
Kagia & Co. Advocates.

3) The Plaintiff through the firm of Memba Muriuki & Company Advocates
filed a similar suit, SRMCC No. 463 of 2002 – Thika against the Defendant
herein on 18th May, 2002.

4) Both suits were defended by the firm of Kairu & McCourt Advocates
(hereinafter referred to as the firm).

5) By an application to this court dated 17 th March, 2003 the firm, applied for
dismissal of this suit for duplicity with costs to the Defendant which
application was granted by a Court Order of 26th February 2002.

6) The Plaintiff has since then, successfully prosecuted SRMCC No. 463 of
2002 – Thika and Judgement for Kshs. 87,745/00 has been entered against
the Defendant.
 -2-

7) The Plaintiff has, however, neglected to pay costs of Kshs. 23,085/00 plus
interest awarded to the Defendant herein.

8) The Defendant therefore intends to attach the Decree in SRMCC No. 463 of
2002 – Thika for the purposes of executing the Decree herein.

9) I now swear this Affidavit in support of the application for notice to be

issued by this Honourable Court to stay of execution of the Decree in
SRMCC No. 463 of 2002 – Thika.

10) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
)

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/780(a))
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 12268 OF 2003
PAUL MAKANI KAMALISHI .………..………………….…..…..… PLAINTIFF
-VERSUS-
LION OF KENYA INSURANCE COMPANY LTD ……………... DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practising as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendant and I am duly authorised and competent to make this
Affidavit.

2) According to the Court record the Plaintiff herein filed suit against the
Defendant in December 2001 Summons to Enter Appearance were issued by
the Court on the same date.

3) Pursuant thereto Messrs Kairu & McCourt Advocates filed a Memorandum

of Appearance on 14th February 2002 and thereafter filed a Defence on 27th
February 2002 and amended the same on 20th January 2003.

4) The matter was fixed for hearing on 7 th July 2004, however it was adjourned
generally at the Plaintiff’s instance.

5) Since then the Plaintiff has not attempted to fix the suit for hearing and the
Plaintiff does not seem keen to prosecute the same.

6) It is well over 10 months since the matter was stood over generally and this
suit ought to be dismissed as it is not right for Defendant to have this matter
pending indefinitely.
 -2-

7) I make this Affidavit in support of the Defendant’s Application by way of

Notice of Motion seeking that this suit be dismissed for want of prosecution.

8) Save where the source of my information otherwise appears I make this

Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said)

JOYCE WAMUCII NDUMIA on )
)
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/727)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 9998 OF 2003

ALBERT MUTAVI SANI …...……….….…..…………..………….. PLAINTIFF

-VERSUS-

R. H. DEVANI LTD ……………………...………….….……….... DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendants and I am duly authorised and competent to make this
Affidavit.

2) The Plaintiff herein filed suit against the Defendant on 26th September, 2003.

3) Summons to Enter Appearance were issued by the Court on 29 th September,

2003 and served on the Defendant on or about the month of October, 2003.

4) Pursuant thereto Messrs Kairu & McCourt Advocates herein after referred to
as the firm filed a Memorandum of Appearance on 27 th October, 2003 and
thereafter filed a Defence on 10 th November, 2003 on behalf of the
Defendant.

5) The matter was fixed for hearing on 6 th May 2004 but the hearing did not
proceed and the matter was adjourned generally at the Plaintiff’s instance.

6) On the 16th of June, 2004 the Plaintiff’s Advocates invited the firm to fix the
matter for hearing. However, no date was fixed as we were informed that
the Court Diary for 2004 had been closed.
 -2-

7) Since then, the Plaintiff has not attempted to fix the suit for hearing and the
Plaintiff does not seem keen enough to prosecute the same.

8) It is well over 9 months since the close of pleadings and this suit ought to be
dismissed as it is not right for the Defendant to have this matter pending
indefinitely.

9) I make this Affidavit in support of the Defendant’s Application by way of

Notice of Motion seeking that this suit be dismissed for want of prosecution.

10) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
)

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/850)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
CIVIL CASE NO. 10452 OF 2003

SMITHKLINE BEECHAM CONSUMER

HEALTH CARE LIMITED……………………………..…………….. PLAINTIFF

-VERSUS -

PANCLAS NJOROGE NGANGA ……………………..…..………. DEFENDANT

AFFIDAVIT

I, Steven Gatembu Kairu of Post Office Box Number 51385, 00200 - Nairobi in the
Republic of Kenya make oath and state as follows;

1) I am a Partner in the firm of Kairu & McCourt Advocates having conduct of

this suit on behalf of the Plaintiff.

2) The Defendant was charged with and convicted of careless driving contrary
to Section 49 (1) of the Traffic Act as more particularly set out in the judicial
proceedings and the Judgment of the Court in the Traffic Case No. 2510 of
1998 in the Senior Principal Magistrate’s Court at Kiambu. A certified copy
of the said judicial proceedings and Judgement is attached and marked as
exhibit “SGK-1”.

3) David Njoroge Gichuhi being the Plaintiff’s driver at the time of the accident
cannot be found in spite of diligent efforts to trace him and his presence
cannot be procured in Court for the purposes of the present proceedings.

4) I swear this Affidavit in support of this Application and what I have deponed
is correct to the best of my knowledge, information and belief save where
otherwise stated.
5) Save where the source of my information otherwise appears, I make this
Affidavit from facts within my knowledge and as contained in the office file
the correctness of which I verily believe.

6) I now produce exhibit “SGK-1”.

-2-

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/652)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT THIKA
CIVIL SUIT NO. 1111 OF 2002

JULIUS NUTHU MWANGI .….…….…….……………..……..….....…..… PLAINTIFF

- VERSUS -
FRANCIS MUHORO GACHANJA ………..………......…….………..… DEFENDANT

-AND-

AHMEDYASSIN H. A. MWALA ……….………..………...………….. THIRD PARTY

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 – Nairobi in the
Republic of Kenya solemnly make oath and state as follows:
1) I am an Advocate of the High Court of Kenya and practising as such with the firm
of Kairu & McCourt Advocates who have conduct of this suit on behalf of the
Defendant and I am duly authorised and competent to make this Affidavit.
2) The Third Party herein has been served with the Third Party Notice.
3) The Third Party has since then entered appearance and filed a Defence on 2 nd
February, 2005.
4) That it is now just and expedient for the court to issue directions as is required by
law.
5) I swear this Affidavit in support of this Application for issuing of Third Party
directions.
6) Save where the source of my information otherwise appears I make this Affidavit
from facts within my own knowledge the truth of which I verily believe.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
 -2-

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/804)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 4590 OF 2004

JOSEPHAT MUTUKU NZIVE …………………..………..………… PLAINTIFF

-VERSUS-
GEORGE ODARO OUMA ……….………….……….....…….. 1ST DEFENDANT
KENYA LITERATURE BUREAU …...……….….…....……...2ND DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendants and I am duly authorised and competent to make this
Affidavit.

2) The Plaintiff herein filed suit against the Defendants on 30th April, 2004.

3) The matter came up for hearing on the 26th April, 2005 whereby inter alia
Advocates for the parties herein recorded a Consent on liability at 65%:35%
in favour of the Plaintiff.

4) Advocates for the parties took another mention date on 16 th May 2005
whereby they were supposed to either record a Consent or take another date
for Submissions.

5) The said mention date was however not diarised owing to the Defendants’
Advocate’s mistake. Therefore on the 16 th May 2005 the Defendants’
Advocate did not attend Court for the mention.

6) According to the Court records, the Plaintiff’s Advocate proceeded to file

Submissions on the 16th May 2005 and took a Judgement date. They neither
served the Defendant with the Notice of Judgement nor with their written
Submission.

7) According to the Court records, the Honourable Court proceeded to write the
Judgement which was delivered on the 26th of May, 2005, still in the absence
of the Defendants’ Advocate.
 -2-

8) The Defendants’ Advocate errors and mistakes should not be visited upon
the Defendant in this case.

9) The Defendant’s Advocates therefore pray that this Honourable Court deems
it fit and just to review its Judgment herein and allow the Defendants to put
in its written Submissions on quantum. Now produced and shown to me is
copy of the Defendants’ Submissions marked as “JWN”.

10) The Defendants’ Advocate also pray that this Honourable Court be pleased
to stay execution of the Decree herein pending inter-parte the hearing and
determination of this application.

11) The said prayers if allowed will not occasion any injustice to the Plaintiff in
any way.
12) I swear this Affidavit in support of this Application and what I have deponed
is correct to the best of my knowledge, information and belief save where
otherwise stated.

13) Save where the source of my information otherwise appears, I make this
Affidavit from facts within my knowledge and as contained in the office file
the correctness of which I verily believe.

14) I now produce exhibit “JWN”.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/885)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 1078 OF 2003

MFI OFFICE SOLUTIONS LTD ………...….……….…..….…….... PLAINTIFF

-VERSUS -
A. K. ABDULGANI LTD ……….………….……….…….……… DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendants and I am duly authorised and competent to make this
Affidavit.

2) The Plaint herein was filed on the 7 th of February 2003 and an Amended
Plaint filed on 4th March 2003.

3) Paragraph 4 of the Amended Plaint erroneously states the repair costs and
assessor’s fees as Kshs. 159,597/00 and Kshs. 6,980/00 respectively.

4) The proper particulars should read, “cost of repair at Kshs. 177,389/00,

investigation fees at Kshs. 12,596/00” and consequently the total at Kshs.
190,085/00.

5) The typographical error was occasioned by the Defendant’s Advocate

inadvertence and the same should not be visited upon the Defendant.

6) The amendments proposed in the Further Amended Plaint annexed here will
not occasion any injustice to the Defendant in anyway. Now produced and
shown to me is the Further Amended Plaint marked as “JWN-1”.
 -2-

7) The application is necessary in order to reflect the proper issues before this
Honourable Court and to enable this Honourable Court determine the real
question in issue.

8) I swear this Affidavit in support of this Application and what I have deponed
is correct to the best of my knowledge, information and belief save where
otherwise stated.

9) Save where the source of my information otherwise appears, I make this

Affidavit from facts within my knowledge and as contained in the office file
the correctness of which I verily believe.

10) I now produce exhibit “JWN-1”.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/388)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 1176 OF 2005
NJUGUNA MURITU KAMAU .……..……………………….…..… PLAINTIFF
-VERSUS-
JOHNSON KAGO MWAURA T/A
BIA BORA DISTRIBUTORS …….…..….…….....…….….... 1ST DEFENDANT
CFC BANK LIMITED ……..………....……….…….…..…... 2ND DEFENDANT

AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows:
1) I am the Manager, Legal Services of the 2 nd Defendant Company and I am
competent and duly authorised to swear this Affidavit on its behalf.
2) The cause of action against the 2nd Defendant in this suit arose as a result of
an accident between motor vehicle registration numbers KAR 069H and
KNG 420 on 18th June, 2004.
3) The 2nd Defendant is a registered joint owner of the said motor vehicle
registration number KAR 069H pursuant to a Hire Purchase Agreement
dated 22nd October, 2003 where the 2nd Defendant is a financier of the said
motor vehicle. Attached hereto is the said Hire Purchase Agreement marked
as exhibit “RWK”.
4) I am informed by the 2nd Defendant’s Advocates on record which
information I verily believe to be true that under the said Hire Purchase
Agreement there is no agency between the 1 st Defendant and the 2nd
Defendant and the only relationship that exists pursuant to the said
Agreement is that of a financier and Hirer and the 2 nd Defendant cannot
therefore be held responsible for the day to day running of the said motor
vehicle which in any event is not in its possession.
 -2-

5) The 2nd Defendant has been wrongly joined as an interested party to the suit
and should be struck out as a party to the suit.

6) Save where the source of my information otherwise appears I make this

Affidavit from facts true of my own knowledge.

7) I now produce exhibit “RWK”.

SWORN at NAIROBI by the said )

RITA WAMBUI KURIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/199)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 7005 OF 2004

AGA KHAN EDUCATION SERVICES KENYA …………...…....… PLAINTIFF

- VERSUS -

FREDRICK PHILIP OMONDI T/A

LIBRAN ELECTRO SERVICES ………...………..………..….…. DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practising as such with the

firm of Kairu & McCourt Advocates (hereinafter referred to as “the firm”)
having the conduct of this matter on behalf of the Jubilee Insurance
Company Limited the insurer of Plaintiff herein exercising its rights of
subrogation and I am duly authorised and competent to make this Affidavit.

2) The Plaintiff herein filed suit against the Defendant on the 28th June, 2004.

3) Summons to Enter Appearance were issued by the Honourable Court on 29 th

June 2004.

4) On 9th July, 2004 the firm forwarded the Summons to Enter Appearance, a
copy of the Plaint and investigator’s report to the process server to enable
the process server trace and serve the Defendant with the same. Now
produced and shown to me is a copy of the said letter dated 9 th July 2004
marked as page 1 of exhibit “VMM-1”.
 -2-

5) On 3rd August, 2004 the firm received a letter dated 3 rd August, 2004 from
the process server stating that the process server had been unable to trace the
Defendant. Now produced and shown to me is a copy of the said letter
dated 3rd August, 2004 marked as page 2 of exhibit “VMM-1”.

6) On 10th August, 2004 the firm wrote to the instructing client Messrs The
Jubilee Insurance Company Limited requesting for a further investigation
into the Defendant’s whereabouts. Now produced and shown to me is a
copy of the said letter dated 10th August, 2004 marked as page 3 of exhibit
“VMM-1”.

7) By a letter dated 17th November, 2004 the said The Jubilee Insurance
Company Limited instructed investigators to establish the exact whereabouts
of the Defendant to enable process server effect service. Now produced and
shown to me is a copy of the said letter dated 17 th November, 2004 marked
as page 4 of exhibit “VMM-1”.

8) On 24th May, 2005 we received a letter dated 23 rd May, 2005 from the said
The Jubilee Insurance Company Limited enclosing a further investigation
report in which report the investigators stated that they could not still trace
the Defendant. Now produced and shown to me is a copy of the said letter
dated 23rd May, 2005 together with an investigation report marked as pages
5 to 11 of exhibit “VMM-1”.

9) The Plaintiff is still desirous of conducting further investigation and to

exhaust all its options including substituted service.

10) I make this Affidavit in support of the Plaintiff’s Application for extension
of validity of Summons.
 -3-

11) Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.

12) I now produce exhibit “VMM-1”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2005.)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/401)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 6974 OF 2002

CHRISTINE NYAWIRA MUREITHI …………….…...…….…….. PLAINTIFF

-VERSUS-

BAMBURI CEMENT LIMITED …………………..…….……..…. DEFENDANT

AFFIDAVIT

I, Betty A. Oluoch of Post Office Box Number 10921, 00100 – Nairobi in the
Republic of Kenya do make Oath and state as follows:
1. I am the Company Secretary of the Defendant Company and duly authorised
and competent to swear this Affidavit.
2. The Plaintiff filed this suit on the 6th September 2002.
3. The Defendant herein entered appearance on the 19 th September and filed its
Defence on the same date.
4. The Plaintiff then filed an application in this Honourable Court on 6 th
September seeking inter alia an injunction to restrain the Defendant from
selling a motor vehicle owned by the Plaintiff but held by the Defendant over
monies owed to the Defendant for its purchase.
5. I am informed by Messrs Kairu & McCourt Advocates (hereafter the
Defendant Company’s Advocates) which information which information I
verily believe to be true that when the Plaintiff’s application came up for
hearing before Court on 23rd September 2002, the Plaintiff declined to
prosecute her application and opted to pay to the Defendant the said monies.
6. I am informed by the Defendant Company’s Advocates which information I
verily believe to be true that on 28th February 2003, the Plaintiff withdrew the
Application aforesaid and was ordered to pay costs to the Defendant.

…………/2
 -2-
7. I am informed by the Defendant Company’s Advocates which information I
verily believe to be true that since then the Plaintiff has not attempted to fix
the suit for hearing and the Plaintiff does not seem keen to prosecute the
same. Consequently, it is now well over 2 years since the matter was last in
Court.
8. It is not just for the Defendant to have this matter pending indefinitely. In
the premises the same ought to be dismissed for want of prosecution with
costs to the Defendant.
9. Further the Defendant is prejudiced by the fact that legal costs continue to
accrue.
10. I make this Affidavit in support of the Defendant’s Application by way of
Notice of Motion seeking that this suit be dismissed for want of prosecution.
11. Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge as well as facts contained in
the Defendant Company’s records the truth of which I verily believe.
SWORN at NAIROBI by the said )
BETTY A. OLUOCH on )
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: B0007/017)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 6706 OF 2005
SKILSOFT LIMITED…………...……..……………………….…..… PLAINTIFF
-VERSUS-
THE JUBILEE INSURANCE CO. LIMITED..………....……….….DEFENDANT

AFFIDAVIT

I, Felistus Eroba residing in Nairobi and of Post Office Box Number 30376 -
00100, Nairobi in the Republic of Kenya do make Oath and state as follows:

1) I am the Rent Administrator of the Defendant Company and I am competent

and duly authorised to swear this Affidavit on its behalf.

2) I have read and understood the contents of the Plaintiff’s Application dated
23rd June, 2005 and the Affidavit in support thereof sworn by Sammy
Buruchara on the same date (hereinafter referred to as “the Affidavit”) and
wish to state as follows;

3) The Plaintiff’s assertion that there was a “mutual” agreement and

commitment over the payment of the rent arrears is not true.

4) By a letter dated 25th May, 2005 the Defendant Company wrote to the
Plaintiff demanding payment within Seven (7) days of Ksh. 253,701.12
being the amount of rent arrears owed to the Defendant as Landlord, by the
Plaintiff as tenant of Office No. 236, 2 nd Floor, LR No. 209/4914, Kaunda
Street, for the period July, 2003 to June, 2005. Annexed hereto is a copy of
the said Letter of Demand dated 25th May, 2005 and marked as Exhibit “FE
– 1”.

…………/2
 -2-

5) The Plaintiff failed/neglected to pay the said amount to the Defendant

Company within the stipulated seven-day (7) period. Consequently, the
Defendant through its Advocates Messrs. Kairu & McCourt, Advocates
(hereafter the Defendant’s Advocates) instructed Messrs. Garam
Investments to proceed with destraint upon the Plaintiff. Annexed hereto is a
copy of the Defendant Advocate’s letter of instruction dated 9 th June, 2005
and marked as Exhibit “FE – 2”.

6) I am informed by the Defendant’s Advocates which information I verily

believe to be true that Messrs Garam Investments visited the Plaintiff’s
premises on the 14th June, 2005 and proclaimed goods therein. Annexed
hereto is a copy of the Proclamation Notice as well as Garam Investment’s
Affidavit in that connection both marked as pages 1 – 2 of Exhibit “FE – 3”.
The said Proclamation Notice afforded the Plaintiff herein the statutory 14
days within which to pay the outstanding arrears of rent as well as the
Advocate’s and Auctioneer’s charges.

7) I am informed by the Defendant’s Advocates which information I verily

believe to be true that the said proclamation was validly carried out in line
with the provisions of the Distress for Rent Act, Cap 293 of the Laws of
Kenya.

8) Following the said proclamation, the Defendant’s Advocates on 20 th June,

2005 received a letter dated 16 th June 2005 from a Ms. Gladys Kamau of
NairobiNet (K) Ltd enclosing three (3) cheques drawn in favour of the
Defendant, for the payment of arrears of rent owed by the Plaintiff herein.
Annexed hereto is a copy of the letter from Ms. Gladys Kamau as well as
copies of the three cheques all marked as pages 1 – 4 of Exhibit “FE-4”.

…………/3
 -3-
9) The said Ms. Gladys Kamau of NairobiNet (K) Ltd was unknown to the
Defendant herein.
10) Two of the cheques referred to in paragraph 6 above were drawn on the
account of NairobiNet Limited, which is a stranger to the Defendant herein.
(Refer to Exhibit “FE-4” page 3 and 4)
11) The other cheque referred to in paragraph 6 above is a post-dated which is
due for presentation on the 4th July, 2005 (Refer to Exhibit “FE-4” page 4)
which date is well past the period afforded in the Proclamation Notice
above-mentioned.
12) I am informed by the Defendant’s Advocates which information I verily
believe to be true that a post-dated cheque does not amount to payment of
the arrears of rent being pursued by the Defendant, contrary to the assertions
by the Plaintiff herein. Further, the total amount payable under the three
cheques is Ksh. 253,701.20 while the amount due in the Proclamation
Notice is Ksh. 275,661.12.
13) I am informed by the Defendant’s Advocates, which information I verily
believe to be true that in view of the matters aforesaid the said advocates
received the cheques “on account and without prejudice”. Attached hereto is
a copy of the Advocate’s letter to the said Ms. Gladys Kamau of NairobiNet
(K) Ltd in that respect, marked as pages 1 and 2 of Exhibit “FE-5”.
Consequently, the Plaintiff is still justly indebted to the Defendant herein.
14) I am informed by the Defendant’s Advocates, which information I verily
believe to be true that the letter referred to in paragraph 13 above did invite
the Plaintiff herein to contact the Defendant’s Advocates to discuss the
matters aforesaid and that rather than doing so, the Plaintiff has filed the
present application.

…………/4
 -4-

15) I am also informed by the Defendant’s Advocates, which information I

verily believe to be true that the present Application by the Plaintiff is
intended to stifle the Defendant’s right to recover sums properly due and
owing to it.

16) Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge as well as facts contained in
the Defendant’s records the truth of which I verily believe.

17) I now produce Exhibit “FE-1”.

SWORN at NAIROBI by the said

)
FELISTUS EROBA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/472)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KISII
CIVIL SUIT NO. 589 OF 2005

MOLEL ARAP KIRUI (suing as personal representative of the Estate

of) GILBERT KOSKEI (DECEASED)...……..……...…..………...… PLAINTIFF
- VERSUS -
MUSTAFA ADEN GEDI…..…….………………………..……1ST DEFENDANT
CFC BANK LIMITED….…….…………………….………..…2ND DEFENDANT
AFFIDAVIT
I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows:
1) I am the Manager, Legal Services of the 2 nd Defendant Company and I am
competent and duly authorised to swear this Affidavit on its behalf.
2) The cause of action against the 2nd Defendant in this suit arose as a result of
an accident alleged to have occurred between motor vehicle registration
numbers KAR 626B and KAG 562U on 11th March, 2004.
3) The 2nd Defendant is a registered joint owner of the said motor vehicle
registration number KAR 626B pursuant to a Hire Purchase Agreement
dated 12th September, 2003 where the 2 nd Defendant is a financier of the said
motor vehicle. Attached hereto is the said Hire Purchase Agreement marked
as exhibit “RWK Pages 1-12”.
4) I am informed by the 2nd Defendant’s Advocates on record which
information I verily believe to be true that under the said Hire Purchase
Agreement there is no agency between the 1 st Defendant and the 2nd
Defendant and the only relationship that exists pursuant to the said
Agreement is that of a Financier and Hirer and the 2 nd Defendant cannot
therefore be held responsible for the day to day running of the said motor
vehicle which in any event is not in its possession.
 -2-

5) The 2nd Defendant has been wrongly joined as an interested party to the suit
and should be struck out as a party to the suit.

6) Save where the source of my information otherwise appears I make this

Affidavit from facts true of my own knowledge.

7) I now produce exhibit “RWK Pages 1-12”.

SWORN at NAIROBI by the said )

RITA WAMBUI KURIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/203)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 829 OF 2002

CELTEL KENYA LIMITED …………………...…………….....….... PLAINTIFF

-VERSUS -

MAGIC GENERAL CONTRACTORS LTD .………….……….… DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya working with the firm of

Kairu & McCourt Advocates who have conduct of this suit on behalf of the
Plaintiff and I am duly authorised and competent to make this Affidavit.

2. This suit was instituted on 15 th May, 2002 on behalf of the Plaintiff for a
Kshs. 611,598/00 claim which arose from an accident which occurred on the
23rd of February, 2001.

3. The suit was filed in this Honourable Court since the claim exceeded the
Chief Magistrate’s Court’s pecuniary jurisdiction at that time.

4. Interim Judgement was entered on 11th November, 2002 against the

Defendant in default of appearance and filing Defence.

5. The Chief Magistrate’s Court pecuniary jurisdiction has since been enhanced
and the Plaintiff would be adequately compensated before the said Courts.

6. Though the Defendant has failed to enter appearance and file a Defence,
they are situated in Nairobi and the transfer of suit will not inconvenience
them in any way.
 -2-

7. I swear this Affidavit in support of the Plaintiff’s application by way of

Chamber Summons seeking to transfer this suit to the Chief Magistrate’s
Court, Milimani for trial disposal

8. Save where the source of my information otherwise appears I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said)

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: J0012/356)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 633 OF 1995

MAMIE ARIAN ………………………..…………….…...…….…… PLAINTIFF

-VERSUS-

DINESH SHAH …………………..…….……..………………... 1ST DEFENDANT

STANDARD CHARTERED BANK (K) LIMITED……….…... 2ND DEFENDANT
GEYDIN LIMITED ….…………..…….……..…………….….. 3RD DEFENDANT

AFFIDAVIT

I, Jane N Chege of Post Office Box Number 30001, 00100 – Nairobi in the
Republic of Kenya do make Oath and state as follows:
1. I am the Senior Manager, Collection & Recoveries of the 2 nd Defendant
Company and duly authorised and competent to swear this Affidavit.
2. The Plaintiff filed this suit on the 27th February, 1995
3. The 2nd Defendant herein entered appearance on the 23rd March 1995 and
filed its Defence and Counterclaim on the 7th April 1995.
4. On the 27th February, 1995 the Plaintiff filed an application in this
Honourable Court seeking an injunction to restrain the Defendants from
transferring the suit property and from interfering with the Plaintiff’s quiet
possession of the said property.
5. The said Application was on 31st October, 1995 dismissed with costs in a
ruling delivered by the Honourable Justice G. S. Pall.
6. I am informed by Messrs Kairu & McCourt Advocates (hereafter the 2nd
Defendant Company’s Advocates) which information I verily believe to be
true that since then the Plaintiff has not attempted to fix the suit for hearing
and the Plaintiff does not seem keen to prosecute the same. Consequently, it
is now over 9 years since the matter was last in Court.

…………/2
 -2-
7. It is not just for the 2 nd Defendant to have this matter pending indefinitely.
In the premises the same ought to be dismissed for want of prosecution
with costs to the 2 nd Defendant.
8. Further the 2nd Defendant is prejudiced by the fact that legal costs continue
to accrue.
9. I make this Affidavit in support of the 2nd Defendant’s Application by way of
Notice of Motion seeking that this suit be dismissed for want of prosecution.
10. Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge as well as facts contained in
the Defendant Company’s records the truth of which I verily believe.

SWORN at NAIROBI by the said )

JANE N. CHEGE on )
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: S0069/001)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 10366 OF 2004

VINCENT OMARIBA MWABEBE ………….……...…..………….. PLAINTIFF

-VERSUS-

VERA PNZIMHWACHA …………....….………………..….... 1ST DEFENDANT

NATION MEDIA GROUP LIMITED …..…….…..……..….... 2ND DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendants and I am duly authorised and competent to make this
Affidavit.

2) The Defence and Counterclaim herein was filed on the 24th of November
2004.

3) Paragraph 11 of the Amended Plaint erroneously states the repair charges

and assessment charges as Kshs. 308,985/00 and Kshs. 5,574/00
respectively.

4) The proper particulars should read, “Repair charges at Kshs. 359,223/00,

assessment charges at Kshs. 6,730/00” and consequently the total at Kshs.
366,053/00.

5) The mathematical error was occasioned by inadvertence and the same

should not be held against the Defendants.
 -2-
6) The amendments proposed in the Defence and Amended Counterclaim
annexed here will not occasion any injustice to the Plaintiff in anyway. Now
produced and shown to me is the Defence and Amended Counterclaim
marked as “JWN-1”.

7) The application is necessary in order to reflect the proper issues before this
Honourable Court and to enable this Honourable Court determine the real
question in issue.

8) I swear this Affidavit in support of this Application and what I have deponed
is correct to the best of my knowledge, information and belief save where
otherwise stated.

9) Save where the source of my information otherwise appears, I make this

Affidavit from facts within my knowledge and as contained in the office file
the correctness of which I verily believe.

10) I now produce exhibit “JWN-1”.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/932)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 1694 OF 2000
MUKHI & SONS LIMITED ……………..………………….………..…..… PLAINTIFF
-VERSUS-
JITAN STEEL SECTIONS LIMITED ………………………….....……... DEFENDANT

AFFIDAVIT

I, Steven Gatembu Kairu of Post Office Box Number 51385, 00200 – Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya and a partner in the firm of Messrs
Kairu & McCourt Advocates who have conduct of this suit on behalf of the
Plaintiff and I am competent to make this Affidavit.

2. My firm is on record for the Plaintiff.

3. Despite numerous letters sent by my firm to the Plaintiff requesting further

instructions and payment of fees the Plaintiff has failed to respond.

4. In the circumstances my firm is unable to continue acting for the Plaintiff.

5. I make this Affidavit in support of my firm’s Application for leave to cease acting
for the Plaintiff.

6. I make this Affidavit from facts within my own knowledge the truth of which I
verily believe.

SWORN at NAIROBI by the said )

STEVEN GATEMBU KAIRU on )
)
)
)
this day of 2005. )
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: M0018/008)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 165 OF 2002

TOTAL KENYA LTD ………….……………….…..………....…..… PLAINTIFF

- VERSUS -

MACCU MOTOR LIMITED …………..………..………..…… 1ST DEFENDANT

KOBIL PETROLEUM LIMITED ……….…..…………..….… 2ND DEFENDANT
MERU CENTRAL FARMERS
CO-OPERATIVE UNION LTD ……….……………………… 3RD DEFENDANT

AFFIDAVIT

I, Steven Gatembu Kairu residing in Kiambu and of Post Office Box Number
51385, 00200 – Nairobi in the Republic of Kenya make oath and state as follows:

1. I am an Advocate of the High Court of Kenya and a partner in the firm of

Messrs Kairu & McCourt Advocates having the conduct of this suit on
behalf of the Plaintiff and I am competent and authorised to make this
Affidavit.

2. The 1st and 3rd Defendants have filed Lists of Documents dated 18 th
November, 2003 and filed in Court on 19th November, 2003 copies of which
are now produced and shown to me and marked as pages 1 – 4 of Exhibit
“SGK – 1”.

3. The issues for determination in this suit are agreed as between the Plaintiff’s
Advocates and the 1st and 3rd Defendants’ Advocates as set out in a
Statement of Agreed Issues filed herein on 3 rd September, 2004 and a copy
of which is now produced and shown to me and marked as pages 5 – 6 of
Exhibit “SGK – 1”.
 -2-

4. By a letter dated 14th July, 2004 addressed to the 2nd Defendant’s Advocates
my firm requested the said Advocates Messrs Esmail & Esmail Advocates to
furnish the 2nd Defendant’s List of Documents which has not been done to
date. Now produced and shown to me is a copy of the letter dated 14 th July,
2004 together with a copy of my firm’s letter dated 2 nd September, 2004
addressed to the 1st and 3rd Defendants’ Advocates and marked as pages 7 –
8 of Exhibit “SGK – 1”.

5. By a Notice dated 24th May, 2005 and filed herein on 25 th May, 2005 my
firm served on the 1st and 3rd Defendants’ Advocates’ firm a Notice under
Order X Rule 11 requiring discovery of the documents therein enumerated.
Now produced and shown to me is copy of he Notice marked as pages 9 –
11 of Exhibit “SGK – 1”.

6. Despite my firm’s letters to the 1 st and 3rd Defendants’ Advocates requesting

them to comply with the said Notice there has been no compliance. Now
produced and shown to me are copies of my firm’s letters to the 1 st and 3rd
Defendants’ Advocates dated 26th May, 2005 and 29th June, 2005 marked as
pages 12 – 13 of Exhibit “SGK – 1”.

7. The documents in respect of which discovery is sought are relevant to the

matters in question in this suit as they would tend to establish or explain as I
am informed by the Plaintiff’s officers and I verily believe the same to be
true, the absence of registration of the Sub-Lease in favour of the Plaintiff
against the suit premises as both the 1 st and 3rd Defendants were at the
material time engaged in the process of applying for an extension of Leases
over the suit premises from the Government of Kenya.
 -3-

8. The 2nd Defendant has not despite request made discovery at all and we
humbly request that it be compelled to do so accordance with the Provisions
of Order X Rule 11A of the Civil Procedure Rules.

9. In the foregoing circumstances I pray that the Defendants be compelled to

make full discovery.

10. Save where the source of my information otherwise appears, I make this
Affidavit from facts contained in my firm’s records as such Advocates for
the Plaintiff the truth of which I verily believe.

11. I now produce exhibit “SGK – 1”.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
)
this day of 2005. )
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: T0025/001)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 6706 OF 2005

SKILSOFT LIMITED…………...……..……………………….…..… PLAINTIFF

-VERSUS-

THE JUBILEE INSURANCE CO. LIMITED..………....……….….DEFENDANT

FURTHER AFFIDAVIT

I, Felistus Eroba residing in Nairobi and of Post Office Box Number 30376 -
00100, Nairobi in the Republic of Kenya do make Oath and state as follows:

1) I am the Rent Administrator of the Defendant Company and I am competent

and duly authorised to swear this Affidavit on its behalf.

2) I have read and understood the contents of the Applicant’s Supplementary

Affidavit sworn by Sammy Buruchara on 11 th July, 2005 (hereinafter
referred to as “the Supplementary Affidavit”) and wish to state as follows;

3) I am duly authorised to swear this Further Affidavit and the Affidavit dated
29th June, 2005 in opposition to the Application herein on behalf of the
Respondent. Annexed hereto is a letter by the Managing Director and Chief
Executive Officer of the Jubilee Insurance Company Limited dated 13 th July,
2005 to this effect marked as Exhibit “FE-6”.

4) The assertion by the Applicant that it was never served with a demand to
pay arrears of rent prior to Distress and Proclamation is false and
mischievous. The said demand was delivered to the Applicant herein on 25 th
May, 2005 and receipt thereof acknowledged. Annexed hereto and marked
Exhibit “FE-7” is an extract of the Respondent’s delivery book to this effect.

…/2
 -2-

5) The Applicant’s annexure marked “S.B.1. Page 1 and 2” is an offer to lease

the offices currently occupied by the Applicant herein but which was
initially erroneously made out to NairobiNet Limited. The said error was
pointed out by NairobiNet Limited vide their letters to the Respondent dated
26th March, 2005 and 25th April 2005. Attached hereto are the said letters by
NairobiNet Limited to the Respondent marked as pages 1 - 3 of Exhibit “FE-
8”.

6) Consequently a new offer dated 8th October, 2002 the Respondent offered to
lease the said premises to the Applicant herein and the same was executed
by the Applicant’s Managing Director. Attached hereto is a copy of the said
letter of offer from the Respondent to the Applicant dated 8 th October, 2002
marked as Exhibit “FE-9”.

7) There is not any indication given in the Applicant’s annexure marked

“S.B.1.” pages 1 and 2 nor in the above-mentioned letters (Refer to Exhibit
“FE-8” above) that the Applicant herein is/was a subsidiary of NairobiNet
Limited and the same was never required or an issue.

8) Further, I am informed by the Respondent’s Advocates Messrs Kairu and

McCourt Advocates which information I verily believe to be true that the
Applicant herein and NairobiNet Limited are two separate legal entities with
each having a distinct personality in law.

9) Consequently, NairobiNet Limited is a stranger to the tenancy agreement

between the Applicant and the Respondent herein (Refer to Exhibit “FE-9”
above).

…/3
 -3-

10) In view of the foregoing, I am informed by the Respondent’s Advocates,

which information I verily believe to be true, that the Distress for rent was
properly carried out and that the Applicant is required by law to pay the
amounts due thereunder, including the Advocates and Auctioneer’s charges.
Consequently, the assertion by the Applicant herein that the amount owing
has been paid in full is false and intended to mislead this Honourable Court.

11) Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge as well as facts contained in
the Defendant’s records the truth of which I verily believe.

12) I now produce Exhibits “FE-5 - 9”.

SWORN at NAIROBI by the said

)
FELISTUS EROBA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/472)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 464 OF 2000

PETER MUNYAO KAMWATHI …………………..……………… PLAINTIFF

-VERSUS-

KENYA COMMERCIAL BANK LIMITED …….………...…. 1ST DEFENDANT

SAMRSOSS INVESTMENTS LIMITED ………..…….….…. 2ND DEFENDANT
JOHN KIPKORIR SAMBU ………………..……....…..……... 3RD DEFENDANT
RHODA CHESANGA SAMBU …………….….…….………. 4TH DEFENDANT

AFFIDAVIT

I, Steven Gatembu Kairu residing in Kiambu and of Post Office Box Number
51385, 00200 – Nairobi in the Republic of Kenya make oath and state as follows:

1. I am an Advocate of the High Court of Kenya and a partner in the firm of

Messrs Kairu & McCourt Advocates having the conduct of this suit on
behalf of the Plaintiff and I am competent and authorised to make this
Affidavit.

2. By a Notice dated 3rd December, 2003 served on the 1 st Defendant’s

Advocates on 4th December, 2003the Plaintiff requested the 1 st Defendant’s
Advocates to make discovery of documents enumerated therein. A copy of
the Notice dated 3rd December, 2003 now produced and shown to me and
marked as pages ________ of Exhibit “SGK – 1”.

3. By letters dated 25th February, 2004 and 28th April, 2004 my firm requested
the 1st Defendant’s Advocates to comply with the Notice dated 3 rd
December, 2003. A copy of the letters dated 25 th February, 2004 and 28th
April, 2004 now produced and shown to me and marked as pages _______
of Exhibit “SGK – 1”.
 -2-

4. By a Notice dated 26th May, 2004 served on the 1st Defendant’s Advocates
on 27th May, 2004, the 1st Defendant’s Advocates were requested for a
second time to make discovery of the documents enumerated therein. A
copy of the Notice dated 26th May, 2004 now produced and shown to me and
marked as pages _________ of Exhibit “SGK – 1”.

5. The 1st Defendant’s Advocates responded to the Notice dated 28 th May, 2005
by filing a List of Documents dated 11 th April, 2005 and filed in Court on 5 th
May, 2005 that does not comply with the said Notice. A copy of the List of
Documents now produced and shown to me and marked as pages _________
of Exhibit “SGK – 1”.

6. On 12th July, 2004 the Plaintiff’s Advocates were served with a Bundle of
documents consisting of correspondence between or exchanged the 1 st
Defendant’s Advocates and the 2nd, 3rd and 4th Defendants, the Plaintiff and
the Plaintiff’s Advocates for the period between September, 2002 and
January, 2003.

7. The 1st Defendant’s Advocates has not despite request made full discovery
of all the documents in its possession or power. The matter in question in
this suit occurred in 1999 and the discovery made suggests that there was no
correspondence between April, 1999 and September, 2002. it is our humble
request that the 1st Defendant Advocates be compelled to make discovery in
accordance with the Provisions of Order X Rule 11A of the Civil Procedure
Rules.

8. Furthermore the 1st Defendant’s Advocate has not provided a detailed

Statement of Account in respect of the 2 nd Defendant’s account(s) with the
1st Defendant allegedly secured by the Plaintiff showing the debits and
credits from inception of account(s) to date.
 -3-

9. In the foregoing circumstances I pray that the Defendants be compelled to

make full discovery.

10. Save where the source of my information otherwise appears, I make this
Affidavit from facts contained in my firm’s records as such Advocates for
the Plaintiff the truth of which I verily believe.

11. I now produce exhibit “SGK – 1”.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
)
this day of 2005 )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: K0007/001)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIVASHA
CIVIL SUIT NO. 705 OF 2004

PROZY AUTO CONSULTANTS LIMITED ……………..………...…....… PLAINTIFF

- VERSUS -

FRANCIS WAWERU ………………………..……….……………… 1ST DEFENDANT

VITORRINO KABURI …………..…………..………………..….…. 2ND DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi in the
Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practising as such with the firm of
Kairu & McCourt Advocates (hereinafter referred to as “the firm”) having the
conduct of this matter on behalf of the Jubilee Insurance Company Limited the
insurer of Plaintiff herein exercising its rights of subrogation and I am duly
authorised and competent to make this Affidavit.

2) The Plaintiff herein filed suit against the Defendants on 23rd July, 2004 and
Summons to Enter Appearance were issued on the same date.

3) However, to date Summons to Enter Appearance have not been served on the
Defendants as they cannot be traced despite comprehensive investigation.

4) On 24th May, 2005 the firm received a letter from our client dated 23 rd May, 2005
enclosing an investigation report. Now produced and shown to me is a copy of the
client’s letter dated 23rd May, 2005 marked as page 1 of Exhibit “VMM-1”.

5) On 17th June, 2005 the firm forwarded the report and Summons to the process
server to effect service upon the Defendants. Now produced and shown to me is a
copy of our letter dated 17th June, 2005 marked as page 2 of Exhibit “VMM-1”.
 -2-

6) Despite having requested the process server to give us an update before 18t July,
2005 as to whether or not the Summons have been served, the process server has
not done so.

7) In view of the foregoing we wish to apply for extension of the Summons as the
same expire on 22nd July 2005 and we are not sure whether the process server has
served the same.

8) The Plaintiff herein is still desirous of pursuing this claim against the Defendant.

9) I swear this Affidavit in support of the attached application to extend the validity
of Summons to Enter Appearance to enable us trace the Defendants and serve
them.

10) Save where the source of my information otherwise appears I make this Affidavit
from facts within my own knowledge the truth of which I verily believe.

11) I now produce exhibit “VMM-1”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2005. )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/443)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MERU
CIVIL SUIT NO. 857 OF 2002

FRANKLIN KOOME .…...…..…………...………….………...…..… PLAINTIFF

- VERSUS -

STEPHEN MWANIA MUEMA ….……....…...………….…… 1ST DEFENDANT

UNGA (K) LIMITED …………….……....…...………….…… 2ND DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendants and I am duly authorised and competent to make this
Affidavit.

2) This suit was filed on 13th December, 2002 by the Plaintiff whereby he
claims damages against the Defendant for injuries he allegedly sustained in a
road traffic accident.

3) The suit proceeded for hearing of the Plaintiff’s case on the 11 th March 2005,
13th May 2005 and 8th July 2005 and is due to come up for hearing of the
Defence case.

4) The 1st Defendant herein is a necessary and material witness for the Defence
in this suit as he was the driver of motor vehicle KAJ 781U, at the material
time.

5) The 1st Defendant informs me that he suffered a stroke in 2003 and he is at

the moment physically challenged and incapable of travelling to Meru Law
Courts to testify.
 -2-

6) This application is therefore necessary to enable the Defendants’ present

their Defence properly before this Honourable Court.

7) I swear this Affidavit in support of this Application and what I have deponed
is correct to the best of my knowledge, information and belief save where
otherwise stated.

8) Save where the source of my information otherwise appears, I make this

Affidavit from facts within my knowledge and as contained in the office file
the correctness of which I verily believe.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/829)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
MISC CASE NO. 986 OF 2003

IN THE MATTER OF ARBITRATION ACT 1995

AND

IN THE MATTER OF ARBITRATION

BETWEEN

KEMBI GITURA T/A

KEMBI GITURA & COMPANY ADVOCATES ...... APPLICANT/DECREE-HOLDER

-VERSUS-

MENNO TRAVEL SERVICES LIMITED ..... RESPONDENT/JUDGEMENT DEBTOR

AFFIDAVIT

I, Steven Gatembu Kairu residing in Kiambu and of Post Office Box Number 51385,
00200 – Nairobi in the Republic of Kenya make oath and state as follows:

1) I am an Advocate of the High Court of Kenya and a partner in the firm of Messrs
Kairu & McCourt Advocates having the conduct of this suit on behalf of the
Decree-Holder and I am competent and authorised by the Decree-Holder to make
this Affidavit.

2) A Decree against the Judgement Debtor was issued on 24 th June, 2004. A copy of
the Decree is now produced and shown to me and marked as pages 1 – 2 of
Exhibit “SGK – 1”.

3) My firm applied for execution of Decree on 26 th August, 2004 seeking a

Prohibitory Order attaching 614 ordinary shares held by the Judgement Debtor in
Menno Plaza Limited. The Prohibitory Order was issued on 7 th October, 2004. A
copy of the Prohibitory Order is now produced and shown to me and marked as
page 3 of Exhibit “SGK – 1”.
 -2-

4) The Prohibitory Order was duly served on Menno Plaza Limited and on the
Judgement Debtor on 30th November, 2004 and 11th December, 2004 respectively.
I rely on the Affidavit of Service of Julius Kilei Mbunge sworn on 16 th December,
2004 and filed herein. A copy of the Affidavit of Service is now produced and
shown to me and marked as pages 4 – 5 of Exhibit “SGK – 1”.

5) Despite the foregoing the Decree has not been satisfied and an Order of this
Honourable Court is required for the sale of the attached shares.

6) I make this Affidavit in support of the Applicant’s Application for an order for the
sale of the Judgment Debtor’s shares in Menno Plaza Limited.

7) Save where the source of my information otherwise appears I make this Affidavit
from facts contained in my firm’s records as such Advocates for the
Applicant/Decree-Holder the truth of which I verily believe.

8) I now produce exhibit “SGK – 1”.

SWORN at NAIROBI by the said)

STEVEN GATEMBU KAIRU on )
)
)
)
this day of 2005 )
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: G0012/001 (Vol. III))
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
WINDING UP CAUSE NO. 17 OF 2003

IN THE MATTER OF PETRO CHEMICAL & CARGO SERVICES LIMITED

AND

IN THE MATTER OF THE COMPANIES ACT, CAP 486 LAWS OF KENYA

REPLYING AFFIDAVIT

I, Umesh Bhargava residing in Nairobi and of Post Office Box Number 48296, Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am the General Manager in charge of Finance, Simba Colt Motors Limited and I
am competent and duly authorised to make this Affidavit.

2) I have read and understood the Petitioner’s Application dated 21 st July, 2005 and
the Supporting Affidavit of Surekha Shobhagchandra Shah sworn on 21st July,
2005 and make this Affidavit in reply and opposition thereto.

3) I am informed by my Advocates truth of which I verily believe that the Simba Colt
Motors Limited is a Creditor by virtue of the claim that is the subject matter of
HCCC No. 771 of 2003.

4) I am informed by my Advocates truth of which I verily believe that the Plaint and
Affidavit Verifying Plaint were duly served on the Interim Liquidators on 18 th
February, 2004. Now produced and shown to me is copy of Affidavit of Service
of Julius Kilei Mbunge sworn on 24th February, 2004 marked as pages 1 –2 of
Exhibit “UB – 1”.

5) I am further informed by the said Advocates truth of which I verily believe that
Judgement in default of appearance was entered in 15 th February, 2005 against
Petro Chemical & Cargo Services Limited for the sum of Kshs. 7,155,166/00
when it failed to enter appearance of file a Defence.
 -2-

6) I am informed by the said Advocates truth of which I verily believe that on 12 th

July, 2005 an Application by Simba Colt Motors Limited dated 28 th February,
2005 seeking to appear in the Petition was heard and that the Petitioner’s
Advocates did not oppose the Application. The Honourable Judge granted the
prayer to file an Affidavit in opposition to the Petition which they are now seeking
to strike out.

7) I am informed by the said Advocates truth of which I verily believe that the
Objector has a liquidated claim against the Company and the Objector is therefore
a Creditor.

8) I make this Affidavit from facts contained in the Objector’s records truth of which
I verily believe.

9) I now produce Exhibit “UB – 1”.

SWORN at NAIROBI by the said )

UMESH BHARGAVA on )
)
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/415)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE MAGISTRATES COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 7811 OF 2004

TONY MULEI MBAI ……..……………………………….……….... PLAINTIFF

-VERSUS -

AMOS KITHINJI ………………..………………..…………… 1ST DEFENDANT

P.M. MUREITHI ………………..………..…………..…..…… 2ND DEFENDANT
ELIJAH MUTURI KARUIJI ……………………..……..….… 3RD DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, 00200 - Nairobi
in the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Plaintiff and I am duly authorised and competent to make this
Affidavit.

2) The Plaintiff filed suit against the Defendants herein on 21 st July, 2004 and
summons to enter Appearance were thereafter issued on the same date.

3) Thereafter the firm filed an Amended Plaint on 14 th September, 2004 and

Summons to Enter Appearance were re-issued on the same date.

4) The 2nd and 3rd Defendants were both served with Summons to Enter
Appearance on 5th February, 2005 but neither has entered appearance to date.

5) The 1st Defendant has not been served as he is yet to be traced.

6) The Plaintiff through his insurers Messrs The Jubilee Insurance Company
Limited is still desirous of pursuing the claim against the 1st Defendant.

-2-
7) On 18th November, 2004 and 28th February, 2005 we received letters dated 18th
November, 2004 and 23rd February, 2005 respectively from the Plaintiff’s
insurers addressed to investigators and copied to the firm requesting the
investigators to ascertain the 1st Defendant’s whereabouts. Now produced and
shown to me are the said copies of letters dated 18th November, 2004 and 5th
February, 2005 marked as pages 1 and 2 respectively of Exhibit “VMM – 1”.

8) The Summons to Enter Appearance as against the 1 st Defendant now expire

on 13th September, 2005.

9) I make this Affidavit in support of Plaintiff’s Application for extension of

validity of Summons to Enter Appearance in respect of the 1st Defendant herein.

10) Save where the source of my information otherwise appears I make this
Affidavit from facts within my own knowledge the truth of which I verily
believe.

11) I now produce exhibit “VMM-1”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2005.)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/438)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 8789 OF 2005
GEORGE THURANIRA M’NYIRU …………...……………..…..… PLAINTIFF
-VERSUS-
TROPICANA LINKLINE LIMITED ...………..……..…….… 1ST DEFENDANT
CFC BANK LIMITED ...…….…………..……..…………..… 2ND DEFENDANT
STEPHEN NJERU NJAGI ...………………...………….…… 3RD DEFENDANT
AFFIDAVIT
F

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows:
1) I am the Manager, Legal Services of the 2 nd Defendant Company and I am
competent and duly authorised to swear this Affidavit on its behalf.
2) The cause of action against the 2nd Defendant in this suit arose as a result of
an accident involving motor vehicle registration number KAS 792T alleged
to have occurred on 11th March, 2004.
3) The 2nd Defendant is a registered joint owner of the said motor vehicle
registration number KAS 792T pursuant to a Hire Purchase Agreement
dated 12th October, 2004 where the 2nd Defendant is a financier of the said
motor vehicle. Attached hereto is the said Hire Purchase Agreement pages 1
– 12 of Exhibit “RWK – 1”.
4) I am informed by the 2nd Defendant’s Advocates on record which
information I verily believe to be true that under the said Hire Purchase
Agreement there is no agency between the 1 st Defendant and the 2nd
Defendant and the only relationship that exists pursuant to the said
Agreement is that of a Financier and Hirer and the 2 nd Defendant cannot
therefore be held responsible for the day to day running of the said motor
vehicle which in any event is not in its possession.
 -2-

5) The 2nd Defendant has been wrongly joined as an interested party to the suit
and should be struck out as a party to the suit.

6) Save where the source of my information otherwise appears I make this

Affidavit from facts true of my own knowledge.

7) I now produce Exhibit “RWK – 1”.

SWORN at NAIROBI by the said )

RITA WAMBUI KURIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/205)
Wabera Street,
P. O. Box 51385,
00200 - Nairobi.
 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 4216 OF 2005

SAMSON MUSAU NYAMAI .……...……………………...….…..… PLAINTIFF

-VERSUS-

MOTHERLAND MICRO FINANCE LIMITED ….…..…….…...... DEFENDANT

CFC BANK LIMITED ……..……….....……….……...…..….... 1ST GARNISHEE
NATIONAL INDUSTRIAL CREDIT BANK LIMITED ……... 2ND GARNISHEE
EQUITY BANK LIMITED ……..………...…....……....…..….. 3RD GARNISHEE

AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows:

1. I am the Manager, Legal Services of the CFC Bank Limited, the 1 st

Garnishee herein (hereinafter “The Bank”) and I am competent and duly
authorised to swear this Affidavit on its behalf.

2. I have read and understood the Order of the Principal Magistrate’s Court
Dated 8th August, 2005, which was served on the Bank on the 19 th August,
2005, attaching the credit balance held in the Account of the Defendant with
the Bank and requiring the Bank to show cause why the same should not be
utilised in satisfying the judgement debt herein.

3. I confirm that the Defendant herein holds and has been operating Current
Account Number 501741507 with the Bank.

4. As at the date of service of the Order on the Bank, there was held in the said
account a credit balance of Kshs. 1,516.70. Attached hereto is a copy of the
bank statement in respect of the said account indicating the amount held in
credit as at 23rd August, 2005. The same is marked as Exhibit “RWK-1”.
 …/2

-2-

5. Consequently, the credit balance available in the said account is negligible

and insufficient to satisfy the attachment sought in the Order herein.

6. I make this Affidavit based on information contained in the records of the

Bank, the contents of which I verily believe to be true.

7. I now produce Exhibit “RWK – 1”.

SWORN at NAIROBI by the said )

RITA WAMBUI KURIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/206)
Wabera Street,
P. O. Box 51385,
00200 - Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 12932 OF 2004
BENITA KAVUTHA MUNYALO …………..…………………….. PLAINTIFF
-VERSUS-
CIRIO DEL MONTE KENYA LTD ……..………………….…… DEFENDANT

AFFIDAVIT

I, PURITY MUTHAMIA of Post Office Box Number 147, 01000 - Thika in the
Republic of Kenya do make Oath and state as follows:
1. I am the Personnel Manager of the Defendant Company herein and I am
duly authorised and competent to swear this Affidavit.
2. The Plaintiff herein filed suit on 7 th May, 2002 and served the Defendant
Company with Summons to Enter Appearance.
3. The Defendant herein through its insurers appointed the firm of Messrs
Kairu & McCourt to act on its behalf whereupon the said firm entered
appearance and filed Defence on behalf of the Defendant.
4. I am informed by the Defendant’s Advocates on record that this suit came up
for Hearing on 29th June, 2005 when the Plaintiff and her doctor testified and
the suit was thereafter adjourned to the 9 th of September, 2005 for further
hearing before the Honourable Mrs. Wamae (Senior Resident Magistrate).
5. On 24th August, 2005 the Defendant’s Advocates on record called me to their
offices and showed me a letter dated 18th August, 2005 but received by them
on 23rd August, 2005 from the Plaintiff’s Advocates addressed to them and
enclosing a copy of an Order issued on 4 th August, 2005 by the Honourable
Mr. El Kindy (Acting Senior Principal Magistrate). Now produced and
shown to me is a copy of the said letter dated 18th August, 2005 and the Order
issued on 4th August, 2005 marked as pages 1 and 2 of Exhibit “PM – 1”.
 -2-

6. I perused the said Order which was requiring the Defendant Company to
avail medical and pharmaceutical records of patients at the Defendant’s
Canary Clinic for inspection by the Plaintiff.

7. The said letter dated 18th August, 2005 required the Defendant’s Advocates
to inform the Defendant that the Plaintiff would inspect the records
tomorrow the 24th August, 2005 despite being dated 18th August, 2005.

8. I am informed by the Defendant’s Advocates on record that it is

unprocedural for the Plaintiff’s Advocate to obtain an Order for inspection
ex-parte where the Defendant is represented.

9. I am also informed by the said Advocates that Plaintiff’s Advocate ought to

have served the Defendant with a Notice of Inspection but did not as is
required by the Provisions Order X Rule 15 of the Civil Procedure Rules.

10. Further that the Plaintiff’s Advocate acted in bad faith in proceeding to
obtain an ex-parte Order for inspection and without notice to the
Defendant’s Advocates on record whilst the matter was still pending as a
part-heard before the Honourable Mrs. Wamae, Senior Resident Magistrate.

11. Also the indiscriminate inspection of patients’ records contemplated by the

Plaintiff would not only greatly prejudice the Defendant but also amount to a
gross violation of the Patients’ Constitutional Right of Privacy.

12. I therefore humbly pray that this Honourable Court be pleased to set aside
the ex-parte Order issued on 4th August, 2005.

13. And that further this Honourable Court do Order the Plaintiff to serve the
Defendant with its Application of 4 th August, 2005 and the Defendant be
granted leave to respond to the Plaintiff’s Affidavit sworn on 4 th August,
2005 and the Application be fixed for inter-parte hearing.
 -3-

14. I swear this Affidavit in support of this Application to unconditionally set

aside the ex-parte Order for Inspection and to allow the Defendant to file a
Replying Affidavit to the Plaintiff’s Affidavit sworn on 4 th August, 2005 and
that Plaintiff’s Application of 4th August, 2005 be heard inter-partes.

15. Save where the source of my information otherwise, appears I make this
Affidavit from facts within my knowledge and as contained in the
Defendant’s records the correctness of which I verily believe.

16. I now produce Exhibit “PM – 1”.

SWORN at NAIROBI by the said )

PURITY MUTHAMIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), [File Ref: I0015/745(b)]
Wabera Street,
P. O. Box 51385,
00200 - Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 6974 OF 2002
CHRISTINE NYAWIRA MUREITHI …………..……....…….…….. PLAINTIFF
-VERSUS-
BAMBURI CEMENT LIMITED ………….…..…..…….……..…. DEFENDANT

REPLYING AFFIDAVIT

I, David Njoroge of Post Office Box Number 10921, 00100 – Nairobi in the
Republic of Kenya do make Oath and state as follows:
1) I am the Finance Director of the Defendant Company and duly authorised
and competent to swear this Affidavit.

2) I have read and understood the Plaintiff’s Application dated 16 th August,

2005 and from the records held by the Defendant Company and information
from my Advocates which information I verily believe to be true, I make
this Affidavit in opposition and in reply thereto.

3) That the Plaintiff was employed by the Defendant Company and during her
employment she did take a car loan from the Defendant Company for a
motor vehicle registration number KAK 966Y.

4) That on the 5th day of August, 2002 the Plaintiff was justifiably dismissed
for reasons well known to her and was given adequate opportunity to defend
herself but failed to satisfactorily do so and was consequently dismissed.
Now produced and shown to me is a copy of the dismissal letter from the
Defendant Company to the Plaintiff dated 5 th August, 2002 and marked as
Exhibit “DN– 1”.

5) That at no time did the Defendant fail to pay the Plaintiff her final dues of
Kshs. 123,101/90 as alleged in her Application but in fact undertook to pay
them by deducting them from the monies she owed the Defendant Company
at the time of her dismissal.

6) As a result the Plaintiff at the time of her dismissal owed the Defendant
Company Kshs. 777,784/45 and has admitted to the same. Now produced
and shown to me is a copy of the letter from the Defendant Company to the
Plaintiff showing what was owing and due to the Defendant Company dated
21st August, 2002 and marked as Exhibit “DN– 2”.
 -2-

7) That by a letter dated 23 rd August, 2002 the Plaintiff did request the
Defendant Company to give her 4 months to sell the said motor vehicle but
did not seem keen to commit to carry it out as she failed to attend a meeting
in the Defendant Company’s premises on 28th August, 2002 to discuss the
said request.
8) The Plaintiff further failed to respond to the Defendant Company’s demand
for payment of the outstanding car loan and as a result the Defendant
Company lawfully attached the said motor vehicle.
9) That the Plaintiff proceeded to file an action against the Defendant Company
seeking an injunction to restrain the Defendant Company from selling the
said motor vehicle.
10) I am informed by my Advocates which information I verily believe to be
true that the Plaintiff declined to prosecute the suit and opted to pay the
Defendant Company the balance she owed.
11) That the Plaintiff on 7th October, 2002did pay the outstanding balance to the
Defendant Company and the motor vehicle was released to the Plaintiff.
12) That the Defendant in February, 2003 in good faith did forward Kshs.
76,305/00 to the Plaintiff as her pension. Now produced and shown to me is
a copy of the letter forwarding the Plaintiff’s pension marked as Exhibit
“DN– 3”.
13) I am informed by my Advocates which information I verily believe to be
true that they have written on numerous occasions to the Plaintiff’s
Advocate to have this matter finalised but have received no response or
indication that there were any issues in dispute pending for determination.
Now produced and shown to me are two such letters marked as pages 1 and
2 of Exhibit “DN– 4”.
14) I am informed by my Advocates which information I verily believe to be
true that they did file and serve on the Plaintiff’s Advocates an Application
to dismiss the suit for want of prosecution dated 5 th August, 2005 and that
the same had been set for hearing on the 30 th day of September, 2005. Now
produced and shown to me is a copy of the Affidavit of service dated 12 th
August, 2005 marked as pages 1 and 2 Exhibit “DN– 5”.
15) I am informed by my Advocates which information I verily believe to be
true that the Plaintiff’s Advocate despite having been served with the said
Defendant’s Application filed its Application and unfairly caused it to be set
down for hearing on the same date as that of the Defendant’s Application.
 -3-
16) That the Defendant will be prejudiced if the Plaintiff’s Application is
allowed as the Plaintiff’s Application only seeks to cause delay in bringing
this matter to finality.

17) That the Plaintiff’s Application does not raise any triable issues and fails to
disclose material facts and so the same should be dismissed.

18) That I make this Affidavit in support of the Grounds of Opposition to the
Plaintiff’s Application dated 16th August, 2005.

19) Save where the source of my information otherwise, appears I make this
Affidavit from facts within my knowledge and as contained in the
Defendant’s records the correctness of which I verily believe.

20) I now produce Exhibit “DN”.

SWORN at NAIROBI by the said )

DAVID NJOROGE on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: B0007/017)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.

To Be Served Upon:
Kiiru, Wainaina & Company,
Advocates,
Solar House,
Aga Khan Walk,
P. O. Box 58854,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 531 OF 1982

IN THE MATTER OF THE ESTATE OF

JOSEPH NDUNGU THUO (DECEASED)
RELATING TO THE DECEASED’S PROPERTY
L. R. NO. 37/261/1 AND GATAMAIYU/KAGAA/433

-BETWEEN-

SUSAN WANJIKU THUO NDUNGU .……….……..……….... 1ST APPLICANT

PATRICK THUO NDUNGU …...........……………………….... 2ND APPLICANT
KENNETH MATHENGE NDUNGU ....…..………………….... 3RD APPLICANT
TERESA WAMUYU NDUNGU ...........……..……………….... 4TH APPLICANT

-AND-

LILIAN WAMBUI NDUNGU .........................…......………........ RESPONDENT

AFFIDAVIT

I, Susan Wanjiku Thuo Ndungu of Post Office Box Number 46220, Nairobi
residing and living within the Republic of Kenya do make Oath and state as
follows:
1) I am the 1st Applicant herein and therefore I am duly authorised and
competent to make this Affidavit.
2) The Deceased died intestate on 19th March, 1981 and was survived by two
widows, LILIAN WAMBUI NDUNGU (hereinafter referred to as “the
Respondent”) being the second wife and four children namely SUSAN
WANJIKU THUO NDUNGU, PATRICK THUO NDUNGU, KENNETH
MATHENGE NDUNGU and TERESA WAMUYU NDUNGU who are the
1st, 2nd, 3rd and 4th Applicants respectively herein (hereinafter referred to as
“the Applicants”).
3) I am the 1st Applicant herein and I am ______ years of age, married with one
child of my own. Annexed hereto is a copy of my National Identity Card and
Certificate of Birth marked as exhibit “SWTN-1”.
 -2-

4) PATRICK THUO NDUNGU is aged ____ years, is (single) and is currently

unemployed, KENNETH MATHENGE NDUNGU is aged ____ years, is
(single) and working at Innscor Kenya Limited, and TERESA WAMUYU
NDUNGU who is aged ____ and is single with one child. Attached hereto are
copies of the 2nd, 3rd and 4th Applicant's National Identity Cards marked as
“SWTN-2”.

5) After the death of the deceased, The Public Trustee applied and was granted
Letters of Administration on 16th September, 1982 to administer and
distribute the deceased’s estate.
6) The Respondent and the Applicants were determined as the deceased’s
proper heirs in the Succession Cause herein.
7) As a consequence the Respondent applied to have hers and the Applicant’s
share of the deceased’s estate transferred in her name, as the Applicants were
minors then.
8) Consequently the Public Trustee transferred the deceased’s property titled
L.R. NO. 37/261/1-NAIROBI WEST valued at Kshs ______________
measuring 0.2043 acres to the Respondent in her personal capacity and as a
trustee for the Applicants, on 15th September, 1988 via an Instrument of
Assent dated 4th February, 1988. Annexed hereto is a copy of the said assent
marked “SWTN-3”.
9) On 23rd May, 1988 the Public Trustee also transferred the deceased’s
property titled GATAMAIYU/KAGAA/433 valued at Kshs ____________
to the Respondent measuring 6.8 hectares in her personal capacity and as a
Trustee for the Applicants. Annexed hereto is a copy of the Abstract Title of
the said property marked as “SWTN-3”.
10) Lastly the Public Trustee on the 13th June, 1988 transferred property L. R.
209/9016 valued at Kshs _________ measuring 0.0615 hectares to the
Respondent in her personal capacity and as a Trustee for the Applicants.
Annexed hereto is a copy of the Abstract title of the said property marked as
exhibit “SWTN-5”.
11) The one property titled L. R. No. 209/9016 was transferred on 28 th October,
1991 to one Francis Njoroge Kahura and Jane Njoroge. Refer to exhibit
marked as exhibit “SWNT-5”.
12) The Respondent has custody of properties titled L. R. NO. 37/261/1 -
NAIROBI WEST and GATAMAIYU/KAGAA/433 held in her personal
capacity and as a trustee for the Applicants.
 -3-
13) The deceased left no other properties to the Respondent and the Applicants.
14) The Applicants on 22nd June, 2001 filed High Court Misc Case No. 36 Of
2001 seeking orders compelling the Respondent to transfer the above suit
properties to the Applicants as the beneficiaries but the suit was dismissed as
it was brought under the wrong legal provisions. However the presiding
Judge gave directions on the proper procedure to follow. Annexed hereto is a
copy of the Judgement marked as exhibit “SWNT-7”.
15) Further I am informed by my Advocates Messrs Kairu & McCourt, which
information I verily believe to be true that the Law of Succession Act (Cap
160) (hereinafter referred to as “the Act”) and in particular Part V of the Act,
governs the Administration and distribution of the deceased’s estate.
16) The Respondent has failed to exercise the Power of Appointment conferred
to her by section 35(2) of the Act since the deceased’s properties above were
transferred to her.
17) The Respondent’s failure to appoint L. R. NO. 37/261/1 - NAIROBI WEST
and GATAMAIYU/KAGAA/433 to the Applicants is unreasonable and
improper withholding of the Statutory Power.
18) The Respondent has also failed to administer the suit properties in her trust,
in the Applicants’ best interests and the Applicants fear that the properties
will go to waste or be sold before the property is appointed to them as she
had already sold some properties without and in blatant disregard of the
Applicants’ and the Court’s consents contrary to Section 37 of the Act.
19) Further on 19th September, 1996 the Respondent, executed a Charge over the
property titled L. R. NO. 37/261/1 in favour of National Bank of Kenya for a
Kshs 1,000,000/00 million loan, without consulting her adult children and
without theirs and the Court’s consents. Annexed hereto is a copy of the
Charge marked as exhibit “SWNT-8”.
20) The Respondent subsequently fell into arrears in the payment of the loan and
the aforesaid Bank threatened to sell the property. Annexed hereto is a copy
of their demand letter and Notification of Sale marked as exhibits “SWNT-
9”.
21) The said Bank later called off the sale and granted the Respondent an
indulgence at the behest of my father-in-law Gerishon Waruiru Gichuki (now
deceased) who also deposited Kshs 1,000,000/00 to the Bank as additional
security for the loan. Annexed hereto are copies of letters dated 26 th March,
 1999 and 26th May, 1999 attesting to the same marked as exhibits “SWTN-
10”.
-4-
22) As a further condition for the Bank’s indulgence, the Respondent undertook to
appoint an agent to receive the rental income of the said property on her behalf
and make therefrom monthly payments of Kshs 55,000/00 to the Bank.
Annexed hereto is a copy of the letter dated 2nd June, 1999 from the
Respondent to National Bank of Kenya Limited marked as exhibit “SWTN-
11”.
23) The Respondent did not make the regular monthly payments aforesaid and
due to the irregular loan repayments, the Bank, on 22 nd December 1999 and
on 8th February 2000 threatened to realise its securities, being both the
property L.R. No. 37/261/1 Nairobi and the Fixed Deposit put up by the said
Gerishon Waruiru Gichuki. Annexed hereto are copies of the
aforementioned letters marked as exhibit “SWTN-12” and “SWTN-13”
respectively.
24) On 13th February 2001 the Bank once again gave the Respondent Statutory
Notice demanding payment, failing which the Bank would exercise its
statutory power of sale. Annexed hereto is a letter dated 13 th February, 2001
from National Bank of Kenya Limited to the Respondent marked as exhibit
“SWTN-14”.
25) By an Agreement reached after a meeting between myself, the other Applicants
and the Guarantor Victoria W. Gichuki the widow of Gerishon Waruiru
Gichuki with representatives of the Chargee Bank, it was agreed that the Fixed
Deposit of Kshs 1,000,000/00 would be released to redeem the Respondent’s
loan account after it became apparent that the property was in imminent danger
of being sold off by the bank. Annexed hereto is a copy of a letter dated 24 th
May, 2001 to National Bank of Kenya evidencing the said Agreement marked
as exhibit “SWTN-15”.
26) In a written Agreement dated 19th January 2000, the Respondent agreed to
relinquish management of the property L.R./ 37/261/1 to the Applicants who
were and are ready and willing to pay off the loan due and outstanding. The
Defendant subsequently reneged on this Agreement. Annexed hereto is a
copy of the Agreement dated 19th January, 2000 marked as exhibit “SWTN-
16”.
27) The Applicants are desirous of having property L.R. No. 37/261/1 vested in
them so that they can make arrangements to service the debt due and owing
to the estate of the late Gerishon W. Gichuki to date.
 -5-

28) That in High Court Misc. Case No. 36 of 2001 the Honourable Judge so
rightly ruled that the Respondent was estopped from claiming that I was not
entitled to a share of the estate of the deceased since she had already been
named as a beneficiary in this case. (Refer to exhibit marked “SWNT-6”.)

29) All the Applicants are above 18 years and are capable of handling their share
of the property in order to meet their own needs as the Respondent has failed
to do so as well as the service the debt owed to the estate of the late Gerishon
W. Gichuki.

30) Further the Respondent in High Court Misc Case No. 36. of 2003 stated in
her sworn Affidavit that she intends to divide GATAMAIYU/KAGAA/433
into four parts for the 2nd, 3rd and 4th Applicants having already sold her so
called “share of the same property” and therefore exclude me. Attached
herein is a copy of the said Affidavit marked as exhibit “SWNT-17”.

31) I am informed by my Advocates which information I verily believe to be true

that under the Act Section 35 (5) I am entitled to a share of the deceased’s
property, as a child of the deceased despite being married.

32) (Future anticipated needs of the Respondent and Applicants).

33) The Respondent’s needs can be met by the income from the deceased’s
property in Kawangware left to her by the deceased which as per her
evidence she collects Kshs 9,000/00 per month. (Refer to exhibit “SWNT-
6”).

34) The Applicants need the benefits from the deceased’s estate in order to meet
their needs and therefore properties L. R. NO. 37/261/1 - NAIROBI WEST
and GATAMAIYU/KAGAA/433 should be appointed to the Applicants to
the exclusion of the Respondent.

35) The Applicants have not had any benefit whatsoever from the Respondent’s
disposal of, or other dealings with the various trust properties.

36) In the circumstances, it is just and fair that the trust properties L.R. No.
37/261/1 Nairobi and GATAMAIYU/KAGAA/433 do vest in the Applicants.

37) What is deponed to in this Affidavit is true of my own knowledge

information and belief.
 -6-

38) I now produce exhibit “SWNT”.

SWORN at NAIROBI by the said

)
SUSAN WANJIKU NDUNGU on )
)
)
this day of 2004. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: N0029/001)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 531 OF 1982

IN THE MATTER OF THE ESTATE OF

JOSEPH NDUNGU THUO (DECEASED)
RELATING TO THE DECEASED’S PROPERTY
L. R. NO. 37/261/1 AND GATAMAIYU/KAGAA/433

-BETWEEN-

SUSAN WANJIKU THUO NDUNGU .……..……..…...…….... 1ST APPLICANT

PATRICK THUO NDUNGU …...........……………………….... 2ND APPLICANT
KENNETH MATHENGE NDUNGU ....…..………………….... 3RD APPLICANT
TERESA WAMUYU NDUNGU ...........……..……………….... 4TH APPLICANT

-AND-

LILIAN WAMBUI NDUNGU ........................….......………........ RESPONDENT

AFFIDAVIT

I, Patrick Thuo Ndungu residing in Dubai in the United Arab Emirates solemnly
make oath and state as follows:

1) I am the 2nd Applicant in this suit and hence competent to swear this
Affidavit.

2) I am one of the beneficiaries of the estate of Joseph Ndungu Thuo (deceased).

3) The said Joseph Ndungu Thuo (deceased) was my father.

4) As a beneficiary I have attained the age of majority and now wish to have the
deceased’s property appointed to me. Now produced and shown by me are
copies of the front and back sides of my National Identity Card and a copy of
my Certificate of Birth all marked as pages 1- 3 of Exhibit “PTN”.

…/2
 -2-

4) I have read and understood the Affidavit of Susan Wanjiku Thuo Ndungu and
wish to reiterate the contents of the same.

5) What is deposed to in this Affidavit is true of my own knowledge.

6) I now produce Exhibit “PTN”.

SWORN at DUBAI by the said )

PATRICK THUO NDUNGU on )
)
)
)
this day of 2006. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: N0029/001)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 531 OF 1982

IN THE MATTER OF THE ESTATE OF

JOSEPH NDUNGU THUO (DECEASED)
RELATING TO THE DECEASED’S PROPERTY
L. R. NO. 37/261/1 AND GATAMAIYU/KAGAA/433

-BETWEEN-

SUSAN WANJIKU THUO NDUNGU .……..……..…...…….... 1ST APPLICANT

PATRICK THUO NDUNGU …...........……………………….... 2ND APPLICANT
KENNETH MATHENGE NDUNGU ....…..………………….... 3RD APPLICANT
TERESA WAMUYU NDUNGU ...........……..……………….... 4TH APPLICANT

-AND-

LILIAN WAMBUI NDUNGU ........................….......………........ RESPONDENT

AFFIDAVIT

I, Kenneth Mathenge Ndungu residing in Nairobi and of Post Office Box Number
57261, Nairobi in the Republic of Kenya solemnly make oath and state as follows:

7) I am the 2nd Applicant in this suit and hence competent to swear this
Affidavit.

8) I am one of the beneficiaries of the estate of Joseph Ndungu Thuo (deceased).

9) The said Joseph Ndungu Thuo (deceased) was my father.

10) As a beneficiary I have attained the age of majority and now wish to have the
deceased’s property appointed to me. Now produced and shown by me is a
copy of my Certificate of Birth marked as exhibit “PTN”.

…/2

-2-
11) I have read and understood the Affidavit of Susan Wanjiku Thuo Ndungu and
wish to reiterate the contents of the same.

12) What is deposed to in this Affidavit is true of my own knowledge.

SWORN at NAIROBI by the said )

KENNETH MATHENGE NDUNGU on )
)
)
)
this day of 2003. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: N0029/001)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 531 OF 1982

IN THE MATTER OF THE ESTATE OF

JOSEPH NDUNGU THUO (DECEASED)
RELATING TO THE DECEASED’S PROPERTY
L. R. NO. 37/261/1 AND GATAMAIYU/KAGAA/433

-BETWEEN-

SUSAN WANJIKU THUO NDUNGU .……..……..…...…….... 1ST APPLICANT

PATRICK THUO NDUNGU …...........……………………….... 2ND APPLICANT
KENNETH MATHENGE NDUNGU ....…..………………….... 3RD APPLICANT
TERESA WAMUYU NDUNGU ...........……..……………….... 4TH APPLICANT

-AND-

LILIAN WAMBUI NDUNGU ........................….......………........ RESPONDENT

AFFIDAVIT

I, Teresa Wamuyu Ndungu residing in Nairobi and of Post Office Box Number
57261, Nairobi in the Republic of Kenya solemnly make oath and state as follows:

1) I am the 3rd Applicant in this suit and hence competent to swear this
Affidavit.

2) I am one of the beneficiaries of the estate of Joseph Ndungu Thuo (deceased).

3) The said Joseph Ndungu Thuo (deceased) was my father.

4) As a beneficiary I have attained the age of majority and now wish to have the
deceased’s property appointed to me. Now produced and shown by me is are
copies of the front and back sides of my National Identity Card and a copy of
my Certificate of Birth all marked as pages 1 – 3 of exhibit “TWN”.

…/2
 -2-

5) I have read and understood the Affidavit of Susan Wanjiku Thuo Ndungu and
wish to reiterate the contents of the same.

6) What is deposed to in this Affidavit is true of my own knowledge.

SWORN at NAIROBI by the said )

TERESA WAMUYU NDUNGU on )
)
)
)
this day of 2003. )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: N0029/001)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 206 OF 2004

THE BAMBURI CEMENT LIMITED …………………….…......... PLAINTIFF

- VERSUS -

MANUCAN ENTERPRISES LIMITED …………….…..…... 1ST DEFENDANT

BANK OF BARODA (K) LIMITED ………………………… 2ND DEFENDANT

AFFIDAVIT OF SERVICE

I, KEVIN DERMOT McCOURT of Post Office Box Number 51385, 00200 –

Nairobi in the Republic of Kenya do make Oath and state as follows:
1) I am an Advocate of the High Court of Kenya practising as such in the firm
name of Kairu & McCourt Advocates who have the conduct of this suit on
behalf of the Plaintiff herein and I am authorised to make this Affidavit.
2) On the 11th May, 2004 my firm forwarded the Summons to Enter
Appearance to Messrs Hegrome Trading and Investigators (the Process
Server) for service on the 1st Defendant herein. Attached herewith is a copy
of my firm’s letter to the Process Server dated 11 th May, 2004 marked as
page 1 of Exhibit “KDM-1”.
3) Under the cover of a letter dated 2 nd June, 2004 the Process Server returned
to my office the Affidavit of Service sworn on the 7th June 2004 in respect of
service of process on the 1st Defendant. Therein, the Process Server
indicated that having traced the 1 st Defendant’s Company office at Industrial
Area, Factory Street, he found that the same had been closed for sometime.
Further, the Process Server indicated that his efforts to trace the Directors
and/or the Company Secretary of the 1 st Defendant Company had been
fruitless. Consequently, the Process Server served the Summons to Enter
Appearance, the Plaint and the Affidavit Verifying Plaint by leaving copies
of the same at the 1st Defendant’s registered office and last known address.
Attached herewith is a copy of the Process Server’s letter to my firm dated
2nd June 2004 together with the Process Server’s Affidavit of Service both
marked as pages 2 and 3 of Exhibit “KDM-1”.

-2-
4) On 2nd August, 2004 my firm again instructed the Process Server to make
further efforts to establish the whereabouts of the Directors and/or Company
Secretary of the 1st Defendant herein for purposes of personal service.
5) On 28th January, 2005, the Process Server returned the Summons to Enter
Appearance to my office un-served indicating that not only had the 1 st
Defendant herein closed its offices aforesaid, but that the records of the
Directors and/or Company Secretary of the 1 st Defendant Company could
not be traced at the Companies Registry. Attached herewith is a copy of the
Process Server’s letter dated 28 th January, 2005 marked as page 4 of Exhibit
“KDM 1”.
6) On or about March, 2005 my office attended the Company Registry to
conduct a personal search with a view to establishing the Directors of the 1 st
Defendant Company. However, the 1st Defendant’s file could not be traced.
7) On or about 16th June, 2005 my office once again attended the Company
Registry where the 1st Defendant’s file was traced. Upon perusal of the file
it emerged that the Directors of the 1 st Defendant were Jatin Harshadbhai
Amin and Meena Jatin Amin (husband and wife) both of P. O. Box 69896,
Nairobi. Efforts by my office to trace both Directors have been fruitless.
8) The personal search referred to in paragraph 7 above also revealed that the
1st Defendant Company had appointed Messrs Samvir Registrars as its
Company Secretary on 1st February 1999. The 1st Defendant’s last Annual
Tax Returns filed in December 2001 revealed that Messrs Samvir Registrars
address/registered office was L. R. No. 209/9054, Rehani House, Koinange
Street.
9) On the 16th June, 2005 my firm attended L. R. No. 209/9054, Rehani House,
Koinange Street with the view to tracing Messrs Samvir Registrars.
However Messrs Samviv Registrars could not be traced at the stated address
and did not seem to exist at all.
10) Being unable to trace the whereabouts of the Directors or the Company
Secretary or any principal officer of the company, my firm on 20 th June,
2005 sent the Summons to Enter Appearance, a copy of the Plaint and a
copy of the Affidavit Verifying Plaint to the 1 st Defendant’s last known
address (Manucan Enterprises, Factory Road, Industrial Area, P. O. Box
69896 Nairobi) by way of prepaid registered post. I attach herewith copies
of Summons to Enter Appearance, my firm’s Covering Letter and a
Certificate
-3-
of Posting duly stamped at GPO Post Office, Nairobi marked as pages 5,6
and 7 of Exhibit “KDM 1”.
11) Save as it may otherwise appear, I make this Affidavit from facts within my
own knowledge and facts contained in my firm’s records the truth of which I
verily belief.
12) I now produce exhibit “KDM 1”

SWORN at NAIROBI by the said

)
KEVIN DERMOT McCOURT on )
)
)
this day of 2005. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: B0007/018)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATE’S COURT AT NAIROBI
CIVIL SUIT NO. 9278 ‘C’ OF 1997

PETER KINUTHIA NJUGIA ……………….…..……..……..….. 1ST PLAINTIFF

ANTONY GATHOGO MBUGWA ……….…..……..……..…… 2ND PLAINTIFF

-VERSUS -

CHARTERED PROPERTIES LIMITED ……………….…..… 1ST DEFENDANT

CHAIRMAN (MUGUNDIA) ………….……………….…..…. 2ND DEFENDANT

AFFIDAVIT
I, Lydia W. Moturi of Post Office Box Number 39773, 00623 - Nairobi in the
Republic of Kenya do make Oath and state as follows:
12. I am the Portfolio Manager of Knight Frank Kenya Limited which took over
the Assets and Liabilities of the 1 st Defendant Company and I am therefore
duly authorised and competent to swear this Affidavit.
13. The Plaintiff filed this suit on the 11th December 1997.
14. The 1st Defendant herein entered appearance on the 5th February 1998 and
filed its Defence on 13th February 1998.
15. I am informed by Messrs Kairu & McCourt Advocates (hereafter the 1 st
Defendant Company’s Advocates) which information which information I
verily believe to be true that the 2 nd Defendant filed an application in this
Honourable Court on 17th April 1998 for orders that he be struck out from
this case and that the same was granted with costs to the 2 nd Defendant on 6th
November 1998.
16. I am informed by the 1st Defendant Company’s Advocates which information
I verily believe to be true that thereafter the Plaintiff had the matter fixed for
hearing on 15th July 1999 but that the same was adjourned at the instance of
the Plaintiff’s Advocates.

…………/2
 -2-
17. I am informed by the 1st Defendant Company’s Advocates which information
I verily believe to be true that since 15 th July 1999 the Plaintiff has not
attempted to fix the suit for hearing and the Plaintiff does not seem keen to
prosecute the same. Consequently, it is now well over 6 years since the
matter was last in Court.
18. It is not just for the 1st Defendant to have this matter pending indefinitely.
In the premises the same ought to be dismissed for want of prosecution
with costs to the 1st Defendant.
19. Further the 1st Defendant is prejudiced by the fact that legal costs continue
to accrue.
20. I make this Affidavit in support of the 1st Defendant’s Application by way of
Notice of Motion seeking that this suit be dismissed for want of prosecution.
21. Save where the source of my information otherwise appears, I make this
Affidavit from facts within my own knowledge as well as facts contained in
the 1st Defendant Company’s records the truth of which I verily believe.
SWORN at NAIROBI by the said )
LYDIA W. MOTURI on )
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: C0005/048)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE MAGISTRATES COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 7811 OF 2004

TONY MULEI MBAI ……..………..…………………………….……….... PLAINTIFF

-VERSUS -
AMOS KITHINJI …………………..…..………………..…………… 1ST DEFENDANT
P.M. MUREITHI ………………..………..……..…………..…..…… 2ND DEFENDANT
ELIJAH MUTURI KARUIJI …………………..………..……..….… 3RD DEFENDANT

REPLYING AFFIDAVIT

I, Dinah Musungu of Post Office Box Number 30376, 00100 - Nairobi, in the Republic of
Kenya do make Oath and state as follows:

1. I am a Legal Officer with Messrs the Jubilee Insurance Company Limited the
insurers of the Plaintiff herein at whose instance this suit has been instituted under
the insurer’s right of subrogation.

2. I have read and understood the Defendants’ Application dated 8 th September, 2005
together with Affidavit sworn by the 2 nd Defendant on 8th September, 2005 and
wish to reply as follows:

3. It is clear from the Defendant’s Affidavit that service of Summons to Enter

Appearance upon the Defendants is not disputed.

4. The issue raised by the Defendants with regard to representation by the insurers
are matters which ought to remain between the Defendants and the insurers.

5. The Plaintiff should not be denied fruits of his justice because of the Defendants’
insurers omissions.

6. I am duly informed by the Plaintiff’s Advocates on record that the cause of action
open to the Defendants would be to pursue their insurers as they are the offending
party.

7. I am also advised by the Plaintiff’s Advocates on record that Judgement herein

was properly entered in full as the Plaintiff’s claim is entirely liquidated.
 -2-

8. I am also informed by the said Plaintiff’s Advocates on record that the Judgement
Notices had already been prepared and were sent to the process server to serve on
20th May, 2005. Now produced and shown to me is a copy of the Advocate’s letter
dated 20th May, 2005 forwarding the Judgement Notices to the process server to
serve and copied to us marked as page 1 of Exhibit “DM –1”.

9. I am also informed by the said Advocates that they thereafter wrote several letters
on 15th July 2005, 18th August 2005 and 5th September 2005 requesting the process
server to return the Affidavits of service of the Judgement Notices to enable them
proceed to execute. Now produced and shown to me are copies of the said letters
dated 15th July 2005, 18th August 2005 and 5th September 2005 marked as pages 2,
3 and 4 of Exhibit “DM – 1”.

10. I am further informed by the same Advocates that they received a letter dated 31 st
August, 2005 from the process server on 6th September, 2005 stating that he was
trying to trace the Defendants. Now produced and shown to me is a copy the letter
dated 31st August, 2005 marked as page 5 of Exhibit “DM – 1”.

11. I am also informed by the said Advocates that though they had already applied for
Warrants of Attachment and Sale they had no intention to execute them until the
Judgement Notices has been served.

12. In any event the Plaintiff is ready and willing to serve the Defendants with the said
Judgement Notices and grant them 10 days stay of execution as is required by the
law.

13. It is not true that the Defendants have been condemned unheard for they were
given a chance to be heard but they let the chance slip between their fingers.

14. The Defendants should therefore lay the blame where it is due that is on their
insurers and allow Plaintiff to enjoy fruits of his justice.

15. The mistake of the Defendants’ insurer should not be visited on the Plaintiff by
denying him his justice.
 -3-

16. I therefore swear this Affidavit to oppose the Application to set aside Judgement.

17. Save where the source of my information otherwise appears I make this Affidavit
from facts within my own knowledge the truth of which I verily believe.

18. I now produce exhibits “DM – 1”.

SWORN at NAIROBI by the said )

DINAH MUSUNGU on )
)
)
this day of 2005. )
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/438)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.

To Be Served Upon:
Nzavi & Company,
Advocates,
Shankadass House (3rd Fl.), (File Ref: MMN/549/2005)
P. O. Box 5017,
00100 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAKURU
CIVIL SUIT NO. 137 OF 2005
SAMUEL MWANGI MUKIRI .………..…….…..………..…..…..… PLAINTIFF
- VERSUS -
FAIMA VENTURES LTD……………….……..……..…….… 1ST DEFENDANT
DAVID GITAGIA NJAU………….……..……..…………..… 2ND DEFENDANT
P. KIGERA MATHIA KIMANI ……………………………… 3RD DEFENDANT
CFC BANK LTD ……………………………………………… 4TH DEFENDANT

AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows:
1) I am the Manager, Legal Services of the 4 th Defendant Company and I am
competent and duly authorised to swear this Affidavit on its behalf.
2) The cause of action against the 4 th Defendant in this suit arose as a result of
an accident involving motor vehicle registration number KAQ 366W alleged
to have occurred on 22nd August, 2003.
3) The 4th Defendant is a registered joint owner of the said motor vehicle
registration number KAW 366W pursuant to a Hire Purchase Agreement
dated 9th July, 2003 where the 4th Defendant is a financier of the said motor
vehicle. Attached hereto is the said Hire Purchase Agreement pages 1 – 12
of Exhibit “RWK – 1”.
4) I am informed by the 4th Defendant’s Advocates on record which
information I verily believe to be true that under the said Hire Purchase
Agreement there is no agency between the 2nd 1st Defendant and the 4th
Defendant and the only relationship that exists pursuant to the said
Agreement is that of a Financier and Hirer and the 4 th Defendant cannot
therefore be held responsible for the day to day running of the said motor
vehicle which in any event is not in its possession.
 -2-

5) The 4th Defendant has been wrongly joined as an interested party to the suit
and should be struck out as a party to the suit.

6) Save where the source of my information otherwise appears I make this

Affidavit from facts true of my own knowledge.

7) I now produce Exhibit “RWK – 1”.

SWORN at NAIROBI by the said )

RITA WAMBUI KURIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/197)
Wabera Street,
P. O. Box 51385,
00200 - Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. OF 2005
KARIRANA ESTATES LIMITED ……….……….…………......……PLAINTIFF
-VERSUS -
QUECONSULT LIMITED …………….…………..……….…. 1ST DEFENDANT
ENGINEER AUSTIN S. KITOLOLO ……….……………….. 2ND DEFENDANT
AFFIDAVIT
I, Michael M. Gakangu of Post Office Box Number 39 Limuru – 00217 in the Republic
of Kenya do make Oath and state as follows:
1. I am the General Manager of the Plaintiff Company and I am competent and duly
authorised to swear this Affidavit on behalf of the Plaintiff Company.

2. Sometime in or about 1996, the Plaintiff requested the 1 st Defendant to provide

Consultancy and Supervision services in respect of construction works intended to
be undertaken by the Plaintiff Company at it’s factory.

3. For purposes of establishing the terms and conditions applicable to the provision of
the said Consultancy and Supervision services, the Plaintiff and the 1 st Defendant
adopted The Association of Consulting Engineers of Kenya (ACEK) “Conditions
of Engagement For Civil, Mechanical and Electrical Engineering Works for
Structural Engineering Works – Agreement 1, 1999” (hereafter the ACEK
Agreement) as the contractual document governing their relationship. Annexed
hereto is a copy of the said ACEK Agreement marked as pages 1-21 of Exhibit
“JN - 1”.

4. The said ACEK Agreement provided under “Part 4: Settlement of Disputes” that
the parties would follow the procedure stipulated therein in resolving any
disputes/differences arising between them in connection with the provision of the
said Consultancy and Supervision services. Refer to page 7 of Exhibit “JN – 1”
above.
5. Sometime in 2003, a dispute arose between the parties in respect of fees allegedly
due to the 1st Defendant from the Plaintiff.

6. By a letter dated 21st February 2003, the Plaintiff’s duly appointed Advocates,
Messrs. Kairu & McCourt Advocates (hereafter the Plaintiff’s Advocates) notified
Messrs Rachier & Company Advocates (hereafter the 1 st Defendant’s Advocates)
that they would thenceforth act on behalf of the Plaintiff in the matter. A copy of
the Plaintiff’s Advocates’ letter dated 21 st February 2003 attesting to this fact is
annexed hereto and marked as Exhibit “JN-2”.

7. In conformity with the above-mentioned ACEK Agreement but in apparent

disregard of the notification referred to in paragraph 6 above, the 1 st Defendant,
through its Advocates, initialised the aforementioned dispute resolution process by
serving a Statement of Difference dated 27 th August 2003 (but received by the
Plaintiff on 9th September 2003) upon the Plaintiff itself. A copy of the 1 st
Defendant’s Advocates covering letter together with the said Statement of
Difference both dated 27th August 2003 are annexed hereto and marked as pages 1-
2 of Exhibit “JN-3”.

8. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that by serving the 1st Defendant’s Statement of Difference on the Plaintiff
itself and not on the Plaintiff’s duly appointed Advocates as notified in the manner
stated in paragraph 6 above, the 1st Defendant’s Advocates occasioned
considerable delay in the time spent in seeking the Plaintiff’s instructions in
response to the said 1st Defendant’s Statement of Difference.

9. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that consequently, while once again notifying the 1 st Defendant’s Advocates of
their appointment to act on behalf of the Plaintiff, the Plaintiff’s Advocates
requested the 1st Defendant’s Advocates to extend the stipulated time within which
the Plaintiff’s Advocates were required to respond to the 1 st Defendant’s Statement
 of Difference as the Plaintiff’s Advocates sought the Plaintiff’s instructions on the
same. A copy of the Plaintiff’s Advocates’ letter dated 11 th September 2003 in that
respect is annexed hereto and marked Exhibit “JN-4”.

10. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that the Plaintiff’s Advocates thereafter sent a letter in reminder dated 24 th
September 2003 seeking confirmation that the time extension sought would be
granted. A copy of the said letter dated 24 th September 2003 is annexed hereto and
marked as Exhibit “JN-5”.

11. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that despite them not receiving any response to the two letters referred to in
Paragraphs 9 and 10 above, the Plaintiff Advocates thereafter served on the 1 st
Defendant’s Advocates the Plaintiff’s Statement of Difference under the cover of a
letter dated 26th October 2003. Annexed hereto and marked as pages 1-2 of Exhibit
“JN-6” are copies of the Plaintiff’s Advocates’ forwarding letter dated 26 th
September 2003 together with the Plaintiff’s Statement of Difference dated 25 th
September 2003 as attached thereto.

12. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that the Plaintiff’s Advocate’s letter referred to in paragraph 11 above elicited
no response and consequently a reminder was sent to the 1 st Defendant’s
Advocates vide a letter dated 29 th October 2003. A copy of the said letter dated 29 th
October 2003 is annexed hereto and marked as Exhibit “JN-7”.

13. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that by a letter dated 14 th November 2003 but received by the Plaintiff’s
Advocates on 17th November 2003, the 1st Defendant’s Advocates confirmed
receiving the Plaintiff’s Statement of Difference but conveyed their non-agreement
with the same. The said letter indicated that the 1 st Defendant’s Advocates would
proceed on the basis of their Statement of Difference referred to in paragraph 7
 above. A copy of the said letter dated 14 th November 2003 is annexed hereto and
marked Exhibit “JN-8”.

14. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that the Plaintiff’s Advocates by a letter dated 21 st November 2003 requested
the 1st Defendant’s Advocates to proceed to the next step of the contractually
stipulated dispute resolution process, this being conciliation. Annexed hereto and
marked Exhibit “JN-9” is a copy of the Plaintiff’s Advocates’ said letter dated 21 st
November 2003.

15. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that the Plaintiff’s Advocates sent a reminder to the 1 st Defendant’s Advocates
vide a letter dated 29th April 2004 to which the 1st Defendant’s Advocates
responded by a letter dated 10th May 2004 indicating that they had sought the
appointment of an Arbitrator by the Engineers Registration Board in respect of the
dispute. Annexed hereto are copies of the Plaintiff’s Advocates’ said letter dated
29th April 2004 as well as the 1st Defendant’s Advocates’ said letter in response
dated 10th May 2004 marked as pages 1-2 of Exhibit “JN-10”.

16. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that through a letter dated 14th May 2004, the Plaintiff’s Advocates sought to
clarify to the 1st Defendant’s Advocates that the appointment to be sought would be
that of a Conciliator and not an Arbitrator as provided for in Clause 4 of the ACEK
agreement (Exhibit JN-1 above). Annexed hereto is a copy of the Plaintiff’s
Advocates’ said letter dated 14th May 2004 marked as Exhibit “JN-11”.

17. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that over one year after the letter referred to in paragraph 16 above had been
sent, the Plaintiff’s Advocates on 7th June, 2005 received a letter dated 27 th May,
2005 from the 1st Defendant’s Advocates indicating that the 1 st Defendant’s
Advocates had sought and obtained the appointment (vide a letter of appointment
 dated 18th May 2005) of the 2nd Defendant as an Arbitrator by the Engineers
Registration Board. A copy of the 1st Defendant’s Advocates’ letter dated 27th May
2005 addressed to the 2nd Defendant is annexed hereto and marked as pages 1-2 of
Exhibit “JN-12”.

18. The alleged letter of appointment alluded to in paragraph 17 above by the

Engineers Registration Board said to be dated 18 th May 2005 was never sent to or
received by the Plaintiff Company and I am informed by the Plaintiff’s Advocates
which information I verily believe to be true that the said letter was never sent to or
received by them.

19. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that while indicating that the 1st Defendant’s Advocates concurred with the
alleged appointment, the letter referred to in paragraph 17 above went further to
seek the Plaintiff’s position on the proposed appointment. It also requested the 2 nd
Defendant to indicate whether he would be available to act as an Arbitrator.

20. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that by a letter dated 9 th June 2005 addressed to the 1 st Defendant’s Advocates
(with a copy to the Plaintiff’s Advocates) the 2 nd Defendant indicated his
willingness to Arbitrate and also sought the Plaintiff’s consent to his proposed
appointment. The 2nd Defendant further instructed the parties in dispute to attend
his offices on 23rd June 2005 for a “preliminary meeting”. A copy of the said letter
dated 9th June 2005 is annexed hereto and marked as pages 1-2 of Exhibit “JN-
13”.

21. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that by a letter dated 16 th June 2005 and faxed to the 2nd Defendant on the
same date (with a copy to the 1st Defendant’s Advocates) the Plaintiff’s Advocates
disclosed that they had had a past relationship with the 2 nd Defendant and advised
him to decline the proposed appointment. The said letter also requested the
 Engineers Registration Board to thenceforth copy all correspondences in respect of
the dispute to the Plaintiff’s Advocates. A copy of the Plaintiff’s Advocates’ said
letter dated 16th June 2005 is annexed hereto and marked as pages 1-2 of Exhibit
“JN-14”.

22. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that on 17th June 2005 the 2nd Defendant faxed to the Plaintiff’s Advocates the
letter referred to in paragraph 20 above (Exhibit “JN-13”) dated 9 th June 2005
suggesting that he had already been duly appointed as an Arbitrator in the dispute.
A copy of the said letter dated 17th June 2005 is annexed hereto and marked as
Exhibit “JN-15”.

23. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that by a letter dated 17 th June 2005 and faxed to the 2nd Defendant on the
same date, the Plaintiff’s Advocates indicated their client’s rejection of his
proposed appointment as an Arbitrator in the dispute. A copy of the said letter
dated 17th June 2005 is annexed hereto and marked as pages 1-2 of Exhibit “JN-
16”.

24. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that on the same day, the 2nd Defendant faxed a copy of the Institution of
Engineers of Kenya Arbitration Rules to the Plaintiff’s Advocates. A copy of the
said Institution of Engineers of Kenya Arbitration Rules as faxed on 17 th June 2005
by the 2nd Defendant is annexed hereto and marked as page 1-7 of Exhibit “JN-
17”.

25. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that the Plaintiff’s Advocates responded on the same day by faxing to the 2 nd
Defendant a copy of “Part 4: Settlement of Disputes” of the ACEK Agreement
(Exhibit JN-1 above) to inform the 2nd Defendant of the contractual rules
applicable in the appointment of a Conciliator in the dispute.
26. I am informed by the Plaintiff’s Advocates which information I verily believe to be
true that in a ruling by the 2 nd Defendant dated 17th June 2005 addressed to the
Engineers Registration Board and faxed to the Plaintiff’s Advocates on the same
date, the 2nd Defendant stated that the Plaintiff’s objection to his proposed
appointment as an Arbitrator was contrary to the Arbitration Rules in that the same
had been done 30 days after his appointment as an arbitrator and that the 1st
Defendant had already appointed him vide their Advocates’ letter dated 27 th May
2005. The said letter went further to state that the Plaintiff’s Advocates’ letter
dated 17 June 2005 (Exhibit “JN-16” above) was addressed to a non-entity.
Consequently, the 2nd Defendant declared that the Plaintiff’s Advocates’ letter
rejecting him as an Arbitrator was null and void and urged the Engineers
Registration Board to disregard the same. A copy of the 2nd Defendant’s said letter
dated 17th June 2005 is annexed hereto and marked as page 1-2 of Exhibit “JN-
18”.

27. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that in making the said ruling, the 2 nd Defendant had exhibited clear and open
bias by making pronouncements that were premature, baseless, lacking in merit
and totally in contravention of the contractual agreement in force between the
Plaintiff and the 1st Defendant for the following reasons:

28. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that firstly, the 2nd Defendant failed to appreciate that the parties in dispute
were looking to a conciliation process as provided for in the ACEK Agreement
rather than Arbitration. Consequently, the 2 nd Defendant failed to appreciate that
the rules applicable to his appointment were those that had been contractually
agreed between the disputing parties as espoused in the ACEK Agreement (Exhibit
“JN-1” above) and not the 2nd Defendant’s imposed “Arbitration Rules”. In
addition, the 2nd Defendant failed to recognise the fact that the said contractual
rules on the appointment of a Conciliator as contained in the ACEK agreement
 could not be amended or altered or displaced by other rules without the express
consent of both contracting parties.

29. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that secondly, the 2nd Defendant ignored the fact that the Plaintiff’s Advocates
had been notified on 7th June 2005 (refer to paragraph 17 above) of his intended
appointment and that the said letters rejecting his appointment was within a “30
day period following nomination”.

30. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that finally, that the 2nd Defendant in stating that the said Plaintiff’s
Advocates’ letter (Exhibit “JN-18 above) had been addressed to a non-entity is
incorrect as the same had been specifically made out to the 2 nd Defendant’s
attention and delivered to the actual address as contained in the letter heads used
by the 2nd Defendant in all his prior correspondences. To this date, the 2 nd
Defendant continues to use the same letter heads and address.

31. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that by a letter dated 17 th June 2005 and faxed to the Engineers Registration
Board as well as to the 1st Defendant’s Advocates and the 2nd Defendant, the
Plaintiff’s Advocates wrote to the Engineers Registration Board to register their
complaint over the unilateral manner in which the 1 st Defendant had sought the
appointment of the 2nd Defendant and over the failure by the Engineers
Registration Board to copy correspondence relating to the dispute to the Plaintiff’s
Advocates. The Plaintiff’s Advocates also reiterated the Plaintiff’s rejection of the
alleged appointment of the 2 nd Defendant to act as a Arbitrator. A copy of the said
letter dated 17th June 2005 is annexed hereto and marked as pages 1-2 of Exhibit
“JN-19”.

32. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that in a meeting held at the 2 nd Defendant’s offices on 23rd June 2005 and
 attended by the disputing parties’ officials and their Advocates, the Plaintiff’s
Advocates indicated that he had been instructed to attend the same as a matter of
courtesy and for the sole purpose of reiterating the Plaintiff Company’s objection
to the 2nd Defendant acting or purporting to act in any capacity howsoever in the
dispute.

33. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that thereafter, by a letter erroneously dated 21 st June, 2005 but written on 21 st
July 2005 and delivered to the 2nd Defendant on 22nd July, 2005 the Plaintiff’s
Advocates wrote to the 2nd Defendant informing him of the background to the
dispute and indicating their constant exclusion by the 1 st Defendant from the
appointment process. The said letter has also reiterated the Plaintiff’s objection to
the alleged appointment of the 2 nd Defendant for the reasons inter alia that the 2nd
Defendant had been a past client of the Plaintiff’s duly appointed Advocates and
that the said Advocates had in the past adversely pursued his son in another matter,
putting the suitability of the 2nd Defendant to conciliate the dispute into question on
account of there being a real likelihood of bias on his part. Annexed hereto and
marked as pages 1-7 of Exhibit “JN-20” is a copy of the Plaintiff’s Advocates’
letter dated 21st June, 2005 in that regard.

34. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that the Plaintiff’s Advocates represented the 2 nd Defendant in HCCC 3736 of
1994 and that their relationship in the said matter ended on or about 15th January
2002 on a very sour note. Annexed hereto and marked as pages 1-6 of Exhibit
“JN-21” are copies of correspondence made between the Plaintiff’s Advocates and
the 2nd Defendant dated 27th June 2001, 10th July 2001, 17th September 2001, 8th
November 2001, 5th December 2001 and 15th January 2002 all attesting to this fact.

35. I am also informed by the Plaintiff’s advocates which information I verily believe
to be true that the Plaintiff’s Advocates have acted against the 2 nd Defendant’s son
 in 2002. Annexed hereto and marked as pages 1-2 of Exhibit “JN-22” are copies
of correspondence between the Plaintiff’s Advocates and the 2 nd Defendant’s
Advocates dated 7th February 2002 and 27th February 2002 attesting to this fact.

36. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that despite being informed of all the foregoing, the 2 nd Defendant has also
now purportedly made a written ruling dated 24th August, 2005 dismissing the
Plaintiff’s objections to his acting in any capacity howsoever in this dispute. The
2nd Defendant consequently states in the said Ruling that he is properly appointed
as a Conciliator/Arbitrator in the said dispute and that he is therefore properly
seized of the said dispute. A copy of the said ruling dated 24 th August, 2005 is
annexed hereto and marked as pages 1-3 of Exhibit “JN-23”.

37. Moreover, the 2nd Defendant has, in the Ruling referred to in Paragraph 36 above,
issued orders that the Plaintiff be condemned to pay to the 2 nd Defendant’s costs for
disposing of the objection, despite the fact that the Plaintiff and the 1 st Defendant
are yet to agree on the fees payable as well as on the conduct of the conciliation
process. A copy of the 2nd Defendant’s bill of costs, amounting to Kshs.
202,500.00, for disposing of the Plaintiff’s objection dated 29 th August, 2005 and
addressed to the Plaintiff herein is annexed hereto and marked as Exhibit “JN-
24”.

38. Further, the 2nd Defendant has also issued directions that he be served with the
Plaintiff’s and 2nd Defendant’s statements of difference for him to proceed with the
conciliation of the dispute. A copy of the 2 nd Defendant’s letter dated 9th
September, 2005 to that effect is annexed hereto and marked as Exhibit “JN-25”.

39. In a letter dated 15th September 2005, the 2nd Defendant has also instructed
disputing parties to deposit with him the sum of KSH. 150,000.00 in respect of
conciliation fees, despite the fact that fees payable and the manner of conducting
the conciliation have not been agreed by the parties. A copy of the 2 nd Defendant’s
 letter dated 15th September, 2005 to that effect is annexed hereto and marked as
pages 1-2 of Exhibit “JN-26”.

40. In addition, the 2nd Defendant has in the letter referred to in paragraph 39 above, as
well as in a further letter dated 16 th September, 2005 unilaterally scheduled hearing
dates in relation to the said dispute. A copy of the said letter dated 16 th September,
2005 is annexed hereto and marked as Exhibit JN-27”.

41. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that the 2nd Defendant’s correspondence to date as well as his said written
Ruling referred to in paragraphs 36 and 37 above illustrates the 2 nd Defendant’s
apparent bias and lack of appreciation as to the role and function of a Conciliator in
the dispute between the Plaintiff and the 1st Defendant for the following reasons:

42. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that the 2nd Defendant has failed to appreciate the fact that a conciliator’s role
in this dispute as espoused in the ACEK Agreement is to assist the parties explore
ways in which they can reach/negotiate an amicable settlement in line with the
definitions of the term “Conciliation” as contained in Black’s Law Dictionary, the
Oxford Law Dictionary and the Smith & Keenan’s English Law Dictionary. The
relevant pages of these dictionaries are attached hereto and marked as pages 1-6 of
Exhibit “JN-28”.

43. I am informed by the Plaintiff’s Advocates which information I verily believe to be

true that further, the 2nd Defendant has all along acted and continues to act as if he
were an arbitrator by referring to himself as such, by making a ruling to the effect
that he has been duly appointed under “The Arbitration Rules”, by requiring parties
to put in bundles of documents in evidence and to call expert witnesses in the
conciliation. Refer to Exhibits “JN-13, 15, 17, 18, 23 and 26” above.
44. Unless restrained by the Honourable Court, the 2 nd Defendant intends to proceed
acting as a Conciliator/Arbitrator in the resolution of a dispute/difference between
the Plaintiff and the 1st Defendant to the detriment of the Plaintiff.

45. I make this affidavit in support of the Plaintiff’s Application for an injunction
restraining the 2nd Defendant from purporting to conciliate or arbitrate the dispute
between the Plaintiff and the Defendant until the final determination of the suit
herein.

46. Save where the source of my information otherwise appears I make this Affidavit
from facts on record and within my own knowledge the truth of which I verily
believe.

47. I now produce Exhibits “JN 1-28”.

SWORN at NAIROBI by the said )

MICHAEL M. GAKANGU on )
)
)
)
this day of 2005 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates, (File Ref: K0069/002)
City House (6th Fl.),
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR MAGISTRATE’S COURT AT NAIROBI
CIVIL SUIT NO. 9946 OF 2005
MARTIN MUSYOKI KIOKO ….………..……….………………..… PLAINTIFF
-VERSUS-
EMMANUEL ACHOLA …….…………….....………...…...… 1ST DEFENDANT
BOB MORGAN SERVICES LIMITED ……….….………..… 2ND DEFENDANT
CFC BANK LIMITED ………………….………..………....… 3RD DEFENDANT
AFFIDAVIT
I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833,
Nairobi in the Republic of Kenya do make Oath and state as follows:
1) I am the Manager, Legal Services of the 3 rd Defendant Company and I am
competent and duly authorised to swear this Affidavit on its behalf.
2) The cause of action against the 3rd Defendant in this suit arose as a result of
an accident alleged to have occurred between motor vehicle registration
number KAQ 432M and a cyclist along Likoni Road near B.A.T. on 1 st
November, 2003.
3) The 3rd Defendant is a registered joint owner of the said motor vehicle
registration number KAQ 432M pursuant to a Hire Purchase Agreement
dated 19th February, 2003 where the 3rd Defendant is a financier of the said
motor vehicle. Attached hereto is the said Hire Purchase Agreement marked
as exhibit “RWK Pages 1-12”.
4) I am informed by the 3 rd Defendant’s Advocates on record which
information I verily believe to be true that under the said Hire Purchase
Agreement there is no agency between the 2 nd Defendant and the 3rd
Defendant and the only relationship that exists pursuant to the said
Agreement is that of a Financier and Hirer and the 3 rd Defendant cannot
therefore be held responsible for the day to day running of the said motor
vehicle which in any event is not in its possession.
 -2-

5) The 3rd Defendant has been wrongly joined as an interested party to the suit
and should be struck out as a party to the suit.

6) Save where the source of my information otherwise appears I make this

Affidavit from facts true of my own knowledge.

7) I now produce exhibit “RWK – 1”.

SWORN at NAIROBI by the said )

RITA WAMBUI KURIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/209)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT EMBU
CIVIL SUIT NO. 202 of 2001

MOHAMMED N.M.NAZIR .……….……………..………..………..…...… PLAINTIFF

- VERSUS -

STEPHEN GAKUMU MBURU …........……..………..…..……….….. 1st DEFENDANT

POPULATION SERVICE LIMITED ……………………...….…..….. 2nd DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, Nairobi in the Republic
of Kenya solemnly make oath and state as follows:

1) I am an Advocate of the High Court of Kenya practising as such in the firm of Kairu &
McCourt Advocates who have conduct of this suit on behalf of the 1 st and 2nd Defendants
and I am duly authorised and competent to swear this Affidavit.

2) The Defendants intend to appeal from the Judgement of this Honourable Court delivered
on 23rd August, 2005 by the Honourable Mrs Lucy Gitari and has to that end filed a
Memorandum of Appeal under High Court Appeal No. 52 of 2005 – Embu. Now
produced and shown to me is a copy of the Memorandum of Appeal marked as pages 1
and 3 of Exhibit “VMM – 1”.

3) On 2nd September, 2005 and 12th September, 2005 the Defendants wrote to the Executive
Officer requesting for issue of typed certified copies of Proceedings and Judgement for
purposes of pursuing an Appeal. Now produced and shown to me are copies of the letters
dated 2nd and 12th September, 2005 marked as pages 4 and 5 of Exhibit “VMM – 1”.

4) The Plaintiff filed the suit herein sometime in August, 2001 claiming material damage
loss as a result of a road traffic accident that occurred on or about 10 th June, 1997
involving his motor vehicle and that of the Defendants.

5) Despite the Defendants having pleaded that the suit was statute barred this Honourable
Court awarded Judgement to the Plaintiff against the Defendants.

-2-
6) The Defendant’s appeal has high chances of success as evidenced by the Memorandum
of Appeal annexed hereto.

7) The Decree is for a substantial amount of money and the Defendants are likely to suffer
substantial loss unless the stay of execution is granted.

8) Further, unless stay of execution is granted this Appeal will be rendered nugatory.

9) The Defendants are ready, willing and are prepared to provide security for the due
performance of this Decree and will abide by the terms of this Honourable Court.

10) I make this Affidavit in support of the Plaintiff’s Application for stay of execution
pending hearing and final determination of this Appeal.

11) Save where the source of my information otherwise appears I make this Affidavit from
facts within my own knowledge the truth of which I verily believe.

12) I now produce exhibits “VMM – 1”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
this day of 2005. )
)
Before Me )
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), [File Ref: I0015/440 (b)]
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KIAMBU
CIVIL SUIT NO. 138 OF 2000
GHIRMAY ABRAMHAGOS (Suing as Administrator
of the Estate of EKABY MARIAME .…......…………………........….…..… PLAINTIFF
-VERSUS-
JOHN MBUTHIA MWANGI ………..…………………...…....…...... 1ST DEFENDANT
KENYA BUS SERVICES ………………..…......………..…....…...... 2ND DEFENDANT
-AND-
BUSTRACK (K) LIMITED ……..…..….…………...………….………....... OBJECTOR
DIAMOND TRUST BANK (K) LTD …...….....……….….....………....….. OBJECTOR
LEXTERS TRANSPORT & COMMUNICATIONS LTD …...…..………... OBJECTOR
CFC BANK LIMITED ……..……….....……….………..………...……….. OBJECTOR

AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833, Nairobi
in the Republic of Kenya do make Oath and state as follows:
1) I am the Manager, Legal Services of the 4 th Objector, CFC Bank Limited (herein
referred to as “the Bank”) and I am competent and duly authorised to swear this
Affidavit on its behalf.
2) On 7th September, 2005 the Bank received a letter dated 6th September, 2005 from
the 2nd Defendant herein enclosing a copy of a Proclamation by Jumbo Airlink
Auctioneers dated 1st September, 2005 and purporting to proclaim motor vehicle
registration number KAR 466Y amongst other goods. Now produced and shown to
me is a copy of the letter dated 6 th September, 2005 and the Proclamation dated 1 st
September, 2005 marked as pages 1 and 2 respectively of the Exhibit “RWK – 1”.
3) The said motor vehicle registration number KAR 466Y together with other motor
vehicles not proclaimed namely motor vehicles registration numbers KAR 465Y
and KAR 464Y are all the subject matter of a Hire Purchase Agreement Reference
Number NK/15203 dated 26th March, 2004 between the Bank on the one hand as a
financier and the 2nd Defendant on the other hand as the hirer. Now produced and
shown to me is the said Hire Purchase Agreement marked as pages 3 to 12 of the
Exhibit “RWK – 1”.
 -2-
4) Pursuant to the Hire Purchase Agreement the property in the said motor vehicles
i.e. registration numbers KAR 466Y, KAR 465Y and KAR 464Y was to remain in
the joint names of both the Bank and the hirer until the hirer had paid up all the
instalments in full with a view of safeguarding the Bank’s interest and
consequently the Logbooks were issued in both the names of the Bank and the
hirer. Now produced and shown to me are copies of the Logbooks in respect of
motor vehicles registration numbers KAR 466Y, KAR 465Y and KAR 464Y
marked as pages 13, 14 and 15 respectively of the Exhibit “RWK – 1”.
5) To date the hirer has still not paid the amounts in full and there remains an
outstanding balance of Kshs. 11,057,662/00 as at 23 rd September, 2005. Now
produced and shown to me is a copy of the Schedule of Instalments under the Hire
Purchase Contract marked as pages 16 to 18 of the Exhibit “RWK – 1”.
6) I am informed by the Bank’s Advocates on record that the Bank being a joint
registered owner is entitled to protect its interest in the said motor vehicle against
any attaching Creditor.
7) I am further advised by the said Advocates that the Bank’s interest as a financier
of the said motor vehicle has priority over the interest of the attaching Creditor.
8) The 2nd Defendant herein is a separate legal entity from the Bank and the Plaintiff
ought to attach only that property which is solely owned by the 2nd Defendant.
9) The Bank is not a party to the proceedings between the 2 nd Defendant and the
Plaintiff and the Bank’s interest in the motor vehicle registration number KAR
466Y should therefore not be interfered with by the Plaintiff.
10) I therefore humbly pray that this Honourable Court do be pleased to lift the
Proclamation herein in respect of motor vehicle registration number KAR 466Y.
11) I swear this Affidavit in support of CFC Bank Limited’s Application praying for
Orders to lift the Proclamation by Jumbo Airlink Auctioneers over motor vehicle
registration number KAR 466Y.
 -3-

12) Save where the source of my information otherwise appears I make this Affidavit
from facts true of my own knowledge.

13) I now produce exhibit “RWK – 1”.

SWORN at NAIROBI by the said )

RITA WAMBUI KURIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/208)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 8180 OF 2005

FRIDAH APIYO BULLINGA ………………....……...…………….. PLAINTIFF

-VERSUS-

JAMES WANYONYI WEKESA …...............……….…...…… 1ST DEFENDANT

HON. DANIEL KHAMASI …………....………...............…… 2ND DEFENDANT

AFFIDAVIT

I, S. A. WAKIAGA of P. O. Box 46143 Nairobi in the Republic of Kenya do

solely make Oath and state as follows:-

1. I am the Assistant Manager Legal Affairs and Recoveries Section of the

Insurance Company of East Africa Limited who are the insurers of the 1 st
Defendant Company and I am therefore duly authorised and competent to
make this Affidavit.

2. This suit arises out of a road traffic accident and which occurred on 26 th
June, 2005 involving motor vehicle registration number KWR 970 owned by
the 2nd Defendant and motor vehicle registration number KAP 675U owned
by one Francis Gitau Kiando and driven by one Moses Gatonye.

3. The Defendant contends that the accident was occasioned or contributed to

by the negligence of the driver of motor vehicle registration number KAP
675U, the said Moses Gatonye, and the owner, the said Francis Gitau
Kiando, is vicariously liable.

4. I verily believe it just and proper that the owner and driver of the said motor
vehicle KAP 675U be joined in this suit by way of Third Party Proceedings
to facilitate the determination of the issue of liability.
 -2-

5. I make this Affidavit from information supplied to me by the Defendant the

truth of which I verily believe.

6. Save as hereinabove expressly admitted, I make this Affidavit from facts

within my own knowledge the truth of which I verily believe.

SWORN at NAIROBI by the said )

S. A. WAKIAGA on )
)
)
this day of 2005)
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: I0015/985)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 9305 OF 2005
PETER KIBANDI GACHERU ………....….…………..……..…………….. PLAINTIFF
-VERSUS-
KAKUZI LIMITED ……………............................……….…............…… DEFENDANT

AFFIDAVIT

I, _______________________ of P. O. Box __________ Nairobi in the Republic of

Kenya do solely make Oath and state as follows:-
1. I am the ____________ Legal Affairs and Recoveries Section of the Insurance
Company of East Africa Limited who are the insurers of the 1 st Defendant
Company and I am therefore duly authorised and competent to make this
Affidavit.
2. This suit was instituted on 25th August, 2005 by the Plaintiff on a claim which
relates to an alleged accident on 13 th April, 2004 at the Defendant Company’s
farm, which suit has not been disposed off.
3. Based on Court records, the Plaintiff in this suit had instituted two other earlier
suits at the Chief Magistrate’s Court at Thika, namely CMCC No. 721 of 2005 and
CMCC No. 902 of 2005 on 25th May, 2005 and on 1st July, 2005 respectively.
Now produced and shown to me are copies of the said Plaints of the said suits
marked as pages 1 to 5 of Exhibit “________”.
4. According to the Court records the Plaintiff in CMCC No. 721 of 2005 alleged
that he sustained injuries arising out of an accident on 10th January, 2005 whilst on
duty at the Defendant Company’s farm for which he held the Defendant Company
liable.
5. Similarly, according to Court records, the Plaintiff in CMCC No. 902 of 2005
alleged that he sustained injuries arising out of an accident on 15 th December,
2004 whilst on duty at the Defendant Company’s farm for which he held the
Defendant Company liable.
 -2-
6. Based on Court records the Plaintiff instated this suit where he has made claim for
damages for the same personal injury as in CMCC No. 902 of 2005 arising from
an accident that occurred on 13th April, 2004.
7. According to all the above Plaints, the Plaintiff avers that there is no other suit
pending in this Honourable Court between the same parties, which information is
not true.
8. I am advised by the Defendant’s Advocates on record in both suits, Messrs Kairu
& McCourt Advocates which information I verily believe to be true that it is not
permissible in law for this Court to proceed with this suit being the latter of the
two suits instituted by the Plaintiff.
9. I am further advised by the said Advocates that this suit is frivolous, vexatious and
an abuse of the Court process and the Plaint herein is fatally defective.
10. I swear this Affidavit in support of the Defendant’s Application herein to dismiss
this suit.
11. Save where the source of my information otherwise appears, I make this Affidavit
from facts within my own knowledge, the truth of which I verily believe.
12) I now produce exhibit “_________”.

SWORN at NAIROBI by the said )

____________________ on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House (6th Fl.), [File Ref: I0015/972(b)]
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT NAIVASHA
CIVIL SUIT NO. 362 of 2003

JANE MUTHONI MWANGI .…….……………..………..……….… PLAINTIFF

- VERSUS -

SILAS CHEBON …........……..………..…..……………………...….. 1st DEFENDANT

DAVID LEKARAM MAZANGU ……………………...….……...….. 2nd DEFENDANT

AFFIDAVIT

I, Valentine Mwende Mulwa of Post Office Box Number 51385, Nairobi in the Republic
of Kenya solemnly make oath and state as follows:

1) I am an Advocate of the High Court of Kenya practising as such in the firm of Kairu &
McCourt Advocates who have conduct of this suit on behalf of the 2 nd Defendants and I
am duly authorised and competent to swear this Affidavit.

2) The 2nd Defendant intends to appeal from the Judgement of this Honourable Court
delivered on 16th August, 2005 by the Honourable Mrs S.R. Wewa and have subsequently
filed a Memorandum of Appeal under High Court Appeal No. 167 of 2005 – Naivasha.
Now produced and shown to me is a copy of the Memorandum of Appeal marked as
pages 1 and 3 of Exhibit “VMM – 1”.

3) The Plaintiff filed the suit herein sometime in June 1998 for a personal injury claim as a
result of a road traffic accident that occurred on or about 25 th June 1995 involving his
motor vehicle and that of the Defendants.

4) In determining the issue of liability the Honourable Court failed to appreciate that on a
balance of probability the Plaintiff had failed to prove any negligence on the part of the
2nd Defendant.

5) Further in writing and delivering its judgement the Honourable Court failed to make a
finding on whether the 1st Defendant was liable or not.
 -2-

6) All in all the 2nd Defendant’s appeal is arguable and has high chances of success as
evidenced by the Memorandum of Appeal annexed hereto and marked as page 4 of the
Exhibit “VMM - 1”.

7) That the 2nd Defendant’s Advocates by a letter dated 12 th September 2005 to the
Executive Officer applied for issue of copies of proceedings and judgement to facilitate
the intended Appeal. Now produced and shown to me is a copy of the said letter marked
as page 5 of the Exhibit “VMM – 1”

8) That the Decree is for a substantial amount of money and the 2 nd Defendant is likely to
suffer substantial loss unless the stay of execution is granted.

9) Further, unless stay of execution is granted the said Appeal will be rendered nugatory.

10) The 2nd Defendant is ready, willing and prepared to provide security for the due
performance of this Decree and will abide by the terms of this Honourable Court.

11) I make this Affidavit in support of the 2 nd Defendant’s Application for stay of execution
pending hearing and final determination of this Appeal.

12) Save where the source of my information otherwise appears I make this Affidavit from
facts within my own knowledge the truth of which I verily believe.

13) I now produce exhibits “VMM – 1”.

SWORN at NAIROBI by the said )

VALENTINE MWENDE MULWA on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

-3-
Drawn & Filed By:
Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: I0015/492)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT THIKA
CIVIL SUIT NO. 1241 OF 2005

HANNAH WANJIRU KIARIE ………….……………...…...….… PLAINTIFF

- VERSUS -

KAKUZI LIMITED ……….…………….……..……………..…… DEFENDANT

AFFIDAVIT

1) I ___________ of Post Office Box Number _______ do hereby make Oath

and state as follows:

2) I am the ________________ of the Defendant Company and I am competent

and authorised by the Defendant to make this Affidavit.

3) This suit was instituted on 26th August, 2005 by the Plaintiff. The claim
relates to an alleged accident on 18 th November, 2002 at the Defendant’s
place of work. Now produced and shown to me is a copy of the Plaint in the
above suit marked as pages 1 – 3 of exhibit “______”.

4) At paragraph 8 of the Plaint in the above suit the Plaintiff pleads that there is
no other suit pending between the same parties relating to the same cause of
action.

5) There is pending before this Court Civil Suit No. 517 of 2004-Gatundu
between the same parties relating to the same cause of action. Now
produced and shown to me is a copy of the Plaint and Defence in SPMCC
No. 517 of 2004-Gatundu marked as pages 4 – 8 of exhibit “_____”.

…/2
 -2-

6) I am advised by the Defendant’s Advocates on record Messrs Kairu &

McCourt Advocates and I verily believe the same to be true that it is not
permissible in law to have two suits pending between the same parties in
respect of the same cause of action. The pendency of the two suits is
oppressive to the Defendant and I humbly urge the Court to strike out the
above suit which I believe is frivolous, vexatious and an abuse of the process
of the Court.

7) Save where the source of my information otherwise appears, I make this

Affidavit from facts within my own knowledge, the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
_____________ on )
)
)
)
this day of 2005. )
)
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), [File Ref: I0015/896(a)]
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 4036 OF 1998
RICHARD M. THUKU .……………………...………………...…..… PLAINTIFF
- VERSUS -
COCA COLA BOTTLING COMPANY LIMITED ……….……… DEFENDANT

AFFIDAVIT

I, Joyce Wamucii Ndumia of Post Office Box Number 51385, 00200 - Nairobi in
the Republic of Kenya make oath and state as follows;

1) I am an Advocate of the High Court of Kenya practicing as such with the

firm of Kairu & McCourt Advocates who have conduct of this suit on behalf
of the Defendant Company and I am duly authorised and competent to make
this Affidavit.

2) The Plaintiff on or about the 16th of June, 1998 obtained a Court Order for
stay of repossession of motor vehicle registration number KWR 934. Now
produced and shown to me is copy of the said Order marked as page 1 of
Exhibit “JWN – 1”.

3) By a Ruling delivered on 18 th April, 2000, this Honourable Court observed

that indeed the said Order was granted pending the hearing and
determination of this suit but that the Plaintiff had gone into a deep slumber
after obtaining the Order.

4) In the said Ruling the Plaintiff was ordered to serve the Plaint and Summons
to Enter Appearance to enable the Defendant to file a Defence.

5) Subsequently the firm of Messrs Kairu & McCourt Advocates filed a

Memorandum of Appearance and Defence on behalf of the Defendant
Company on the 25th of May, 2000.
 -2-

6) As a result of the Plaintiff’s reluctance to fix this suit for hearing, the
Defendant invited the Plaintiff’s Advocate by a letter dated 14 th November,
2000 to attend the Civil Courts Registry on 30 th November, 2000 to fix a
hearing date. Now produced and shown to me is a copy of the said letter
dated 14th November, 2000 marked as page 2 of Exhibit “JWN – 1”.

7) The Plaintiff’s Advocate failed to send a representative to the Registry and

an ex-parte date was taken for 13th March, 2001.

8) On 13th March, 2001 this suit came up for hearing but was adjourned
generally on account of the illness of the Plaintiff’s Advocate.

9) The Plaintiff’s Advocate subsequently made an Application to cease from

acting which was granted by this Honourable Court on 8th January, 2003.

10) The Defendant by a letter dated 10 th January, 2003 invited the Plaintiff to
attend the Civil Courts Registry on 21 st January, 2003 to fix a hearing date.
Now produced and shown to me is a copy of the said letter dated 10 th
January, 2003 marked as page 3 of Exhibit “JWN – 1”.

11) The Plaintiff failed to send a representative to the Registry and an ex-parte
date was taken for 21st May, 2003.

12) The Defendant attempted several times to serve the Plaintiff with Hearing
Notices without success.

13) By a letter from Messrs Hegrome Trading Investigators dated 19 th May,

2003 the Defendant was informed that the Plaintiff and his wife were out of
the country therefore on 23rd May, 2003 the scheduled hearing could not
proceed.

14) The Defendant continues to be prejudiced by its inability to realise its

security due to the injunction in place and by the fact that legal costs
continue to accrue.
 -3-

15) Further, it is also clear by the Plaintiff’s conduct that he is not interested in
prosecuting this suit.

16) In the circumstances, I make this Affidavit in support of the Defendant’s

Application by way of Notice of Motion seeking that this suit be dismissed
for want of prosecution.

17) Save where the source of my information otherwise appears I make this
Affidavit from facts on record and within my own knowledge the truth of
which I verily believe.

18) I now produce Exhibit “JWN – 1”.

SWORN at NAIROBI by the said )

JOYCE WAMUCII NDUMIA on )
)
)
this day of 2004 )
)
Before Me )
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: N0023/004)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 5964 OF 1992

PHILISTA AKELO BALA

ROSELINE AKEYO BALA
DAVID OPIYO OKENO ………….…...…….………..….. PLAINTIFFS/APPLICANTS

-VERSUS-

AKAMBA PUBLIC ROAD SERVICES LIMITED ….... DEFENDANT/RESPONDENT

AFFIDAVIT

I, Steven Gatembu Kairu of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya practising as such in the name

and firm of Kairu & McCourt Advocates who have conduct of this suit on
behalf of the Defendant herein and I am duly authorised to make this
Affidavit.

2. The Plaintiff herein filed suit against the Defendant on or about June 1994.

3. The firm of Kairu & McCourt took conduct of this suit on behalf of the
Defendant on 8th September, 1995.

4. This matter was last fixed for hearing on the 27th of July 2004 when the 3rd
Party’s Application by Notice of Motion dated 15 th December 2003 was to
be heard.

5. On the 27th of July 2004 the 3rd Party’s said Application did not proceed as
the matter had not been listed on that day’s cause list.
 -2-

6. Since then it has been one year and two months and the Plaintiff does not
appear to be keen to prosecute this matter fully as he still has failed to take
any steps to fix the matter for hearing.

7. Further the Defendant is prejudiced by the fact that legal costs continue to
accrue.

8. I make this Affidavit in support of the Defendant’s Application by way of

Notice of Motion seeking that this suit be dismissed for want of prosecution.

9. Save where the source of my information otherwise appears, I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
)
this day of 2005. )
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), (File Ref: J0012/180)
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 5882 OF 1990
MICHAEL JUMA OBARE ……….………..……………..…….………….. PLAINTIFF
-VERSUS -
AKAMBA PUBLIC ROAD SERVICES LIMITED …...……….….….… DEFENDANT
-AND-
TOWORO INDUSTRIES LIMITED ………..……………….…..… 1ST THIRD PARTY
AGRICULTURAL DEVELOPMENT CORPORATION ……....…. 2ND THIRD PARTY

AFFIDAVIT

I, Steven Gatembu Kairu of Post Office Box Number 51385, Nairobi in the
Republic of Kenya solemnly make oath and state as follows:

1. I am an Advocate of the High Court of Kenya practising as such in the name

and firm of Kairu & McCourt Advocates who have conduct of this suit on
behalf of the Defendant herein and I am duly authorised to make this
Affidavit.

2. The Plaintiff herein filed suit against the Defendant on or about March 1991.

3. The firm of Kairu & McCourt took conduct of this suit on behalf of the
Defendant on 19th March 1991.

4. This matter was last fixed for a mention on the 10 th of June 2004 when the
proceedings against the 3rd Party were dismissed.

5. Since then it has been one year and three months and the Plaintiff does not
appear to be keen to prosecute this matter fully as he still has failed to take
any steps to fix the matter for hearing.
 -2-

6. Further the Defendant is prejudiced by the fact that legal costs continue to
accrue.

7. I make this Affidavit in support of the Defendant’s Application by way of

Notice of Motion seeking that this suit be dismissed for want of prosecution.

8. Save where the source of my information otherwise appears, I make this

Affidavit from facts within my own knowledge the truth of which I verily
believe.

SWORN at NAIROBI by the said

)
STEVEN GATEMBU KAIRU on )
)
)
)
this day of 2005. )
Before Me )
)
)
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House (6th Fl.), [File Ref: J0012/026(c)]
Wabera Street,
P. O. Box 51385,
Nairobi.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 4320 OF 2002

TIMOTHY ICHURIRA BUSAKA .…...………....……...….…..… DECREE-HOLDEER

-VERSUS-

NIPSAN CONSTRUCTION COMPANY …………..…....…...... JUDGMENT DEBTOR

-AND-

CFC BANK LIMITED ……..……….....……….…………...…..………....... OBJECTOR

AFFIDAVIT

I, Rita Wambui Kuria residing in Nairobi and of Post Office Box Number 72833, Nairobi
in the Republic of Kenya do make Oath and state as follows:
1) I am the Manager, Legal Services of the Objector, CFC Bank Limited
(herein referred to as “the Bank”) and I am competent and duly authorised to
swear this Affidavit on its behalf.
2) On 21st September, 2005 the Bank received a Notification of Sale of
Movable Goods dated 21st September, 2005 from the Defendant/Judgement Debtor
herein by Keysian Auctioneers proposing to sell motor vehicle registration number
KAS 643T amongst other goods. Now produced and shown to me is a copy of the
Notification of Sale of Movable Goods dated 21st September, 2005 and marked as
page 1 of the Exhibit “RWK – 1”.
3) The said motor vehicle registration number KAS 643T is the subject matter
of a Hire Purchase Agreement Reference Number NK/15761 dated 28 th
September, 2004 between the Bank on the one hand as a financier and the
Defendant/Judgement Debtor on the other hand as the hirer. Now produced and
shown to me is a copy of the said Hire Purchase Agreement marked as pages 2 to
10 of the Exhibit “RWK – 1”.
 -2-
4) Pursuant to the Hire Purchase Agreement the property in the said motor
vehicle registration number KAS 643T was to remain in the joint names of both
the Bank and the hirer until the hirer had paid up all the instalments in full with a
view of safeguarding the Bank’s interest and consequently the Logbook was
issued in both the names of the Bank and the hirer. Now produced and shown to
me is a copy of the Logbook in respect of motor vehicles registration number KAS
643T marked as page 11 of the Exhibit “RWK – 1”.
5) To date the hirer has still not paid the amounts in full and there remains an
outstanding balance of Kshs. 656,425/54 as at 24 th September, 2005. Now
produced and shown to me is a copy of the Schedule of Details under the Hire
Purchase Contract marked as pages 12 to 16 of the Exhibit “RWK – 1”.
6) I am informed by the Bank’s Advocates on record that the Bank being a
joint registered owner is entitled to protect its interest in the said motor vehicle
against any attaching Creditor.
7) I am further advised by the said Advocates that the Bank’s interest as a
financier of the said motor vehicle has priority over the interest of the attaching
Creditor.
8) The Defendant herein is a separate legal entity from the Bank and the
Plaintiff ought to attach only that property which is solely owned by the
Defendant.
9) The Bank is not a party to the proceedings between the Defendant and the
Plaintiff and the Bank’s interest in the motor vehicle registration number KAS
643T should therefore not be interfered with by the Plaintiff.
10) I therefore humbly pray that this Honourable Court do be pleased to lift the
Attachment and Removal for Sale herein by Keysian Auctioneers.
11) I swear this Affidavit in support of CFC Bank Limited’s Application
praying for Orders to lift the Attachment and Removal for Sale herein by Keysian
Auctioneers over motor vehicle registration number KAS 643T.
12) Save where the source of my information otherwise appears I make this
Affidavit from facts true of my own knowledge.
-3-
13) I now produce exhibit “RWK – 1”.

SWORN at NAIROBI by the said )

RITA WAMBUI KURIA on )
)
)
this day of 2005 )
)
Before Me )
)
)
COMMISSIONER FOR OATHS )

Drawn & Filed By:

Kairu & McCourt,
Advocates,
City House, (6th Fl.), (File Ref: C0002/211)
Wabera Street,
P. O. Box 51385,
00200 – Nairobi.