1 REPUBLIC OF KENYA, IN THE CHIEF MAGISTRATE COURT AT NAIROB MILIMAN| COMMERCIAL COURTS. CIVIL CASE NO. 5597 OF 2019 AHAMAN HASHIMN ABDULRAHAMAN, poio8at CLEANING & FORWADING LTD. 1ST APPLICANT/PLAINTIFF 2" APPLICANT/PLAINTIFF ~VERSUS- 15T RESPONDENT/DEFENDANT .2NO RESPONDENT/DEFENDANT . INTRESTED PARTY pAKIRA TAKKY MUBARA... pst AFRICA GOLDSKITHS LIMITEI precTOR OF CRIMINAL INVESTIGATION. MENTION NOTICE 10: NJOROGE MWAURA & CO. ADVOCATES KENSIA HOUSE, 15' FLOOR, SUITE 13 MURANGA ROAD, NEXT TO PIONEER UNIVERSITY BEFORE DESAI ROAD P.O. BOX 6135 - 00300 NAIROBI TAKE NOTICE that the above matter will be mentioned on the 2020 at 9.00 a.m. in the forenoon for the purpose of taking directions. December, TAKE NOTICE that if no appearance is made on your behalf by yourself, your advocate or by someone by Law authorized to act for you, the suit will be mentioned and decided in your absence. DATED at Nairobi this ” day of December, 2020. NDUNGUTSE MALINZI ASSOC. CO. ADVOCATE! ADVOCATES FOR THE IST DEFENDANT DRAWN AND FILED B Ndungutse Malinzi Associates & Co. Advocates, Standard Building, 3 floor, room no. 9 Kenyatta Avenue NAIROBI. Mobile: 0727 - 023726 ; Email: ndungutsemalinziadvocates@gmail.comee EERIAL Col pee URTS CIVIL CASE NO. 5597 OF 2019 Pu Bs AN HASHIMN ABDULRAHAMAN AL CLEANING & FORWADI -1S' APPLICANT/PLAINTIFF W08N Nee .2N® APPLICANT/PLAINTIFE JRA ZAKKY MUBARA....., st ICA GOLDSKITHS LIMITED ee nara QND ME OF CRIMINAL NVESIGATION. soe NESTED PA AFFIDAVIT OF SERVICE UNDER ORDER 5 RULE 15 (1) CIVIL PROCEDURE RULES pNTONY MULI NDOLO of P.O. Box 38681 - 00100, Nairobi i i ya do make oath and state as follows: - ce gHAT| am a process server of this Honorable Court duly authorized to serve the Court Process. Annexed and marked ‘AMN 1’ is a copy of my Certificate. HAL on the 8 day of December 2020, | received a Mention Notice dated 7 December 2020 slated for Mention on 16 December 2020 from the firm of Ndungutse Malinz Associates Advocates with instructions to serve the same physically upon the Firm of Njoroge Mwaura & Co. Advocates, The Plaintiff Advocates herein. . THAT on the same day at around 1:30pm, | proceeded to their Offices located at Kensia House, 18 Floor, Suite 13, Muranga road, next to Pioneer University before Desai road in Nairobi and served the same upon the Receptionist. who acknowledged receipt by way of stamping and appending signature on my service copy. ‘AMN 2’ is a copy of the acknowledged Mention notice. 4. THAT| return my service copies herewith as duly served, that what is deponed to herein is true to the best of my knowledge information and belief. SWORN AT NAIROBI BY THE SAID ANTONY MUL! NDOLO THIS 9" DAY OF DECEi Standard Building, 34 Floor Kenyatta Avenue, NAIROBI. Mobile: 0727 - 023726 7 ndungutsemalinziadvocates@gmall.com ) ) ) ) DEFONENT ) ) 2CAROLINE CHEPKURUI MITEL.... FELIX KIPROTICH KIRUI .... STATEMENT OF DEFENCE. |. Save as is herein expressly admitted the defendants dem i z y each and every allegation contained in the plaint as though the same were herein set forth verbatim and traversed seriatim. . The Daten admits the contents of paragraph 1 & 2 of the plaint as the same is descriptive of the parties save to state that his address for purposes of service in this ¢ suit is KBN Associates Advocates, Standard Building, 3 Floor Suite 9 , Kenyatta Avenue, P.O Box 30374- 00100 Nairobi, Email: kbnassociatesadvocates@gmail.com, +254712306809. x . The Defendant denies the contents of paragraph 3 of the Plaint and the plaintiff is put to strict proof thereof, and further states that the plaintiff was sent an invitation to treat on the terms of sale on 29/06/2020 and if she was agreeable to the same she would communicate to the defendant who would then send a sale agreement for execution. w 4, The Defendant admits partially the contents of paragraph 4 of the plaint that there is a close family relationship between the patties and have since done business together, however the defendant denies that there has been a good business mutual understanding since the plaintiff never pays up for the motor vehicles obtained on hire purchase. 5. The Defendant denies paragraph 5 of the plaint and puts the plaintiff to strict proof thereof, the Defendant further states that the agreed purchase price of the motor vehicle Reg: No. KCY 580Y black Toyota Harrier was kshs. 2,800,000/- (two million eight hundred thousand) and the plaintiff defaulted in payment. 6. The Defendant admits the contents of paragraph 6, save to state that upon delivery of the motor vehicle the purchaser did not pay up the full agreed purchase price (kshs.2,800,000/-) of the motor vehicle and only executed the sale agreement with a promise to pay the money later on in installments. 7. The Defendant denies the contents of paragraph 7 and puts the plaintiff to strict proof thereof. The Defendant further states that that clause is subject to the buyer having paid Jaim by Felix K. Kirui Drawn by KBN ASSOCIATES Advocates. 1 Written statement of Defence and Counterthe full agreed purchase price and this case the plaintiff had not paid the purchase price thus title /logbook could not be transferred to her as she dreamt. g. The Defendant admits the contents of paragraph 8 to the extent that they repossessed the motor vehicle since the plaintiff had defaulted on payment of the agreed purchase price and the defendant denies that its agents used force to repossess the motor vehicle thus puts the plaintiff to strict proof thereof. g. The Defendant admits the contents of paragraph 9 and further states that the plaintiff registered a complained of stolen laptop and car hijacking and police came to arrest me in Nairobi, upon taking my statement they discovered the car belonged to me, and no evidence of any stolen property was adduced and the complaint was thrown out. 40. The Defendant denies the contents of paragraph 10 and puts the plaintiff to strict proof thereof. The defendant further states that he was forced, coerced, to sign a document he didn’t know its contents while in custody/ police cell by the police as his warrant to be released, and as a person who wanted his freedom he signed and was released but a stranger to its contents. 11. The defendant states that he was also forced to pay kshs.150,000/- to the plaintiff while in police custody which he did under duress since he wanted to get his freedom back. 12. The Defendant denies the contents of paragraph 11 and puts the plaintiff to strict proof thereof. The defendant further states that once motor vehicles are repossessed for breach of contract/ failure to pay purchase price the company deducts depreciation price for the period that car was in possession of the buyer, and costs for damages on motor vehicle, recovery levy, and refund any monies outstanding after making its deductions. 13. The Defendant denies the contents of paragraph 12 and puts the plaintiff to strict proof thereof. The defendant further states that he was forced to issue postdated cheques at the police station before he could be released thus all done with duress. 14. The Defendant denies the contents of paragraph 13 and puts the plaintiff to strict proof thereof. 15. The Defendant denies the contents of paragraph 14 and puts the plaintiff to strict proof thereof. 16. The Defendant denies the contents of paragraph 15 and puts the plaintiff to strict proof thereof. i lix K, Kirui Drawn by KBN ASSOCIATES Advocates. Written statement of Defence and Counterclaim by Felix :17 Tae denies the contents of paragraph 16 and puts the plaintiff to strict proof thereof. 18. The Defendant denies the contents of paragraph 17 and puts the plaintiff to strict proof thereof. The defendant further states that motor vehicles do not appreciate in value when they have been used or being sold as second hand thus lost money in this transaction. 19. The Defendant admits the contents of paragraph 18. 20.The coe denies the contents of paragraph 19 and puts the plaintiff to strict proof thereof. iS IEREFORE the Defendant prays that the Plaintiff's suit be dismissed with costs, the Defendant's Defence be allowed and judgment be entered COUNTER CLAIM 1. The Plaintiff herein is a male adult of sound mind thus capable of suing and being sued and his address for service for the purposes of this suit is care of KBN ASSOCIATES,3* Floor, Room 9 P.O. BOX 30374-00100 NAIROBI. Email:kbnassociatesadvocates@gmail.com. 2. The Defendant herein is a female adult capable of suing and being sued. Service of Summons upon the Defendant shall be effected through the Plaintiffs Advocates’ offices. 3, Atall material times to this suit, the Plaintiff was the owner of motor vehicle KCY 580 Y Black Toyota Harrier under their company RFA MOTORS LIMITED. 4. On 29/6/2020 the Defendant approached the plaintiff with the aim of purchasing the suit motor vehicle to which the plaintiff sent her the terms of the purchase and also informed her of the purchase price of kshs.2,800,000/-. 5. The Plaintiff avers that by that arrangement the Defendant defaulted in payment and breached the contract. PARTICULARS OF BREACH OF CONTRACT 1. Failure to pay the agreed purchase price on dates agreed. 2. Subjecting the car to depreciation while knowing she won't pay the full purchase rice. 3. Aniendine the purchase price without the consent of the plaintiff. 4. Obstructing re-possession of the motor vehicle. , 5. Damaging the car through knocks and failure to repair them. Kirui Drawn by KBN ASSOCIATES Advocates. 3 Written statement of Defence and Counterclaim by Felix K.6, The Plaintiff avers that he instructed his auctioneers to recover the motor vehicle in Kericho and return it to Nairobi, the plaintiff shall pray for special and general damages incurred on recovery. 7. The Plaintiff avers that the motor vehicle had depreciated below the prevailing . market value of a new car at the time of repossession. 8. The Plaintiff avers that he sold motor Vehicle KCF 376 K Toyota Premio to the defendant at an agreed kshs. 1,670,000/- and has since refused to pay the full purchase price. 9. The plaintiff avers that the defendant made a deposit of kshs.1, 000,000/- and went mute about the balance, 10. The plaintiff avers that is yet to receive kshs.670,000/- as the outstanding balance for motor vehicle KCF 376 K. 11. The Plaintiff avers that he used a lot of money to recover the motor vehicle from the defendant in kericho thus damages/ expenses due to the defendant's acts of breach. The expenses incurred on mileage for 5 months from the date of receipt to recovery. PARTICULARS OF SPECIAL DAMAGES (a) Auctioneers fees. -kshs.125,000/- (b) Fuel. . kshs.12,000/- (c) Service of motor vehicle. . kshs.28,000/- (d) Painting of motor vehicle. kshs.90,000/- (e) Computer Diagnosi () Labour... (g) Mileage 88379- 83989 = 4,390 giving rise to 103 days*5000 kshs.515,000/- TOTAL .. hs.783,000/- 12. The Plaintiff avers that he has suffered gross and immeasurable torture, imprisonment and time to ensure that his car is repaired to enable him make his investment capital movements of business due to the Defendants acts. 13. The plaintiff avers to todate the motor vehicle is still in the showroom waiting for any willing buyer to purchase it and it's difficult due to the depreciation level it surfaced. 14. The plaintiffs avers that there is no previous or pending proceeding in court between them and the Defendant over the same subject matter. Written statement of Defence and Counterclaim by Felix K. Kirui Drawn by KBN ASSOCIATES nena15. The cause of action arose within the jurisdiction of this Honourable Court. REASONS ‘WHEREFORE the Plaintiffs pray for judgment against the Defendant for: a) Specific/ special damages of Kshs. 783,000/- b) 670,000/- outstanding balance on motor vehicle KCF 376K ) Costs of this sult. d) General Damages e) Interest on a, b, cd above from date of judgment delivery f) Any other relief that this Honourable Court may deem fit to grant. DATED at NAIROBI this 2021 ADVOCATES FOR THE PLAINTIFF/DEFENDANT ON COUNTER CLAIM. DRAWN & FILED BY: KBN ASSOCIATES & ADVOCATES Standard Building, 3“ Floor, Room 9 P.O. Box 30374-00100 NAIROBI email:kbnassociatesat tes ail, Tel: +254-712306809 TO BE SERVED UPON: M/S MUTAI KIPKEMOI ADVOCATES GREEN SQUARE MALL, 28° FLOOR, KERICHO- NAKURU HIGHWAY, P.O. BOX 914-20200 : KERICHO 4, aya eApKemel adootaies Cx omy se cal s. --t af Defence and Countercaim by Felix K. Kul Drawn by KBN ASSOCIATES Advocates;REPUBLIC OF IN THE CHIEF MA‘ oareeonee MILIMANI COMMERC CIVIL CASE NO, E1 OHNE CHEPKURUI MITEL. wk KIPROTICH KIRUI ........ VERIFYIN ELIX KIRUI KIPROTICH a resident of Nairobi, in the Republic of Kenya, do her by tae ath and state as follows:- THAT | am a male adult of sound mind and the Plaintiff on counter claim herein hence competent to swear this affidavit, THAT | have read and understood the averments in the counter claim drawn by my Advocates and | confitm and verify that the averments in the said counter claim are true and correct. THAT | have no other suit pending in court between the Defendants and me over the same subject matter. THAT | have never previously instructed any other Advocate to handle this matter on my behalf. 4 THAT | swear this affidavit in support of the counterclaim. je THAT what is deponed herein above is information and belief. A to. the best of my knowledge. SWORN at NAIROBI by the said } FELIX KIRUI KIPROTICH } } This 224 day of February 2021 } BEFORE ME: yoey RWESIOR maven FOR IA DRAWN 6 FILED BY: KBN ASSOCIATES, \Standard Building Kenyatta Avq \3 FLOOR, ROOM 9 {P.O. BOX 30374-00100 jROBI. ' aa onasodetendvoate@zrl com. rent of Defence and Counterclaim by Felix K. Kirui Drawn by KBN ASSOCIATES naveREPUBLIC OF KENYA IN THI WEF MAGISTRATE C¢ re MILIMANI COMMERCIAL COURTS CIVIL CASE NO. E138 OF 2020 CAROLINE CHEPKURUI MITEL... peux KIPROTICH KIRUI ... WITNESS STATEMENT FOR THE COUNTERCLAIM & DEFEN I FELIX. K. KIRUI want to state as follows, I sold a car Reg no: KCY 580Y to CAROLINE MITE! on the 29th June 2020 at a price of Kshs. 2,800,000 whereby she just paid 1,350,000 ksh to my bank account and the remaining 1,250,000ksh was to be paid in a 2 months installment as per the agreement thus the month of August and September but that never happened. | was forced to send an auctioneer to repossess the vehicle on the 29th of September, After the repossession took place, she sent the police to harass me that | had stolen a laptop that was in the car of which | was not even on location the day of the repossession was taking place. She had the police come pick me up from Nairobi to Kericho in the claims that | stole a laptop upon arrival to Kericho Police Station | was harassed by police to sign the settlement agreement of which she had used the car for 5 months, The car was repossessed in her presence in the uniliver estate, which estate cannot be approached unless the resident herein Caroline has given access and she also went ahead to show the auctioneer the fuel cut out to enable them to drive it and could not tell how the auctioneers could steal her laptop in her presence. Miss Caroline used police to force me agree to signing of documents while in police custody and was escorted to some office in kericho to sign the documents to which | did so but didn’t know what | was signing before | could be released and | do denounce all the documents executed while in police custody, duress. In November 2015 | sold a Toyota premio KCF 376 K to the defendant on counter claim at a cost of kshs.1,670,000/- and she only deposited kshs.1,000,000/- and has never cleared the balance of kshs. 670,000/-. | wish the same to be paid or deducted from any monies on the claim filed before this court if there will be any balance. That all | wish to state FELIX. K. KIRU! ---