SAMPLE PLEADINGS

1. PLAINT

Should be filed together with:

(a) Verifying Affidavit
(b) Plaintiff’s list of witnesses
(c) Witness statement(s)
(d) List of Documents

Plaint Example 1 for Guidance:

THE REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI
CIVIL SUIT NO OF 2018
ANITA WANJA MIKIRIMA (a minor suing through her mother xxx and next of friend
xxx suing as legal representative of the estate of xxx “deceased”) ------------------------------
-------------------------------------------PLAINTIFF
VERSUS (TO BE CENTERED)
JAPHET MBAE RUTERE-------------------------------------------------1st DEFENDANT
DENNIS MWONGERA-------------------------------------------------2nd DEFENDANT
PLAINT
“Fast Track”/ “multitrack”/ “small claims” (as required by statute) (CPC)
(A Plaint will be drawn in paragraphs; each paragraph must state one fact or series of
fact)

1. This will be a description of the plaintiff, name, residence, address. The plaintiff is
xxx, caring out business at xxx of P.O BOX xxx
If there are more than one plaintiffs e.g. 3. The first three paragraphs will describe the
three plaintiffs
2. Give a description of the defendant(s)
3. Paragraph raising the facts. These must be material facts pertaining to what is in issue.
Don’t describe the history of the matter, only facts the plaintiff to prove her case
against the other person. E.g., In a breach of contract claim, you have to state the
date when the contract was entered into and when it was broken.
a. Example 1: That on xxx, the plaintiff sold a car to the defendant, but the
defendant has not paid for the car since, or that xxx, the plaintiff through a
written contract sold land LR, 9999 to the defendant. So, you only plead
material facts
b. Example 2—Plaint for Specific Performance of Contract to Convey Land: On
or about 1 December 2013, plaintiff and defendant entered into an agreement
in writing. In accord with the provisions of the said agreement, the plaintiff
tendered to the defendant the purchase price and requested a conveyance of
the land, but defendant refused to accept the tender and refused to make the
conveyance.
Also, as a general rule, the law should not be pleaded unless foreign law for which
you are relying.
4. Do not forget to state the particulars of the case where needed. E.g. in negligence
claims, defamation, breach of contract etc.
a. Example 1—Particulars of Breach of Contract:
i. failing to adhere to the terms of the contract;
ii. refusing to accept the terms of the contract;
 iii. refusing to convey make the conveyance over to the plaintiff as
according to the terms of the contract
Also, you should plead evidence which support the material facts. You just state
material facts and the law will be pleaded in court. Same with the evidence.
The paragraphs should be short and precise
5. The plaint must also show the court has jurisdiction.
6. Then, after stating all the facts, you will state the remedies you are seeking based on
loss suffered e.g., Special damages (these have to be pleaded in stating the exact
amounts owed which you should have receipts for), general damages, costs and any
other remedy the court deems fit.
Plaint Example 2 for Guidance:

THE REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI
CIVIL SUIT NO OF 2018
ANITA WANJA MIKIRIMA (suing as legal representative of the estate of xxx (deceased)) -------------------------------------
----------------------------------------------------PLAINTIFF
VERSUS
JAPHET MBAE RUTERE-----------------------------------------------------------------1st DEFENDANT
DENNIS MWONGERA-----------------------------------------------------------------2nd DEFENDANT
PLAINT
(MULTI-TRACK)

1. The Plaintiff is an adult of sound mind residing and working for gain within Imenti South District and
her address of service for purposes of this suit in care of:
KIAUTHA ARITHI & CO ADVOCATES
1st FLOOR, KCB BULDING
NJURI NCHEKE STREET
P.O BOX 2418-60200
MERU.
2. The 1 defendant residing and working for gain within the republic of Kenya and his address of
st

service for purposes of this suit is P.O BOX 368-60202, NKUBU (Service of summons to be effected
through the plaintiff’s advocates office).
3. The 2nd defendant is a male adult of sound mind residing and working for gain within the republic of
Kenya and his address of service for purposes of this suit is P.O BOX 368-60202, NKUBU (service to
be effected through the plaintiff’s advocates office).
4. At all material times relevant to this suit the 1 st defendant was the registered owner of motor vehicle
registration number KAM 413Y Toyota Saloon and the 2 nd defendant was his driver agent, servant
and/or employee.
5. On or about the 31st day of December 2008, at around 10.30 pm the deceased was lawfully standing
off Meru-Nkubu Road at Equator area where the 1 st defendant so negligently, recklessly drove,
controlled and/or managed motor vehicle registration No. KAM 413Y that he caused it to veer off
the road and crush the deceased occasioning upon her fatal injuries which led to her death.

PARTICULARS OF NEGLIGENCE OF THE 2ND DEFENDANT

a) Driving at a speed which was too fast in the circumstances
b) Failing to keep any or proper look-out or to have any sufficient regard for pedestrian on the
said road
c) Mounting on the pedestrian path and there colliding with the deceased
d) Failing to exercise or to maintain any or any sufficient or adequate control of the said motor
vehicle
e) Failing to need the presence of the deceased on the said road
f) In the alternate driving a defective motor vehicle incapable of proper control
g) Failing to stop, slow down or in any other way so manage or contra the said motor vehicle
as to avoid mounting the said pedestrian path there collides with the deceased.
h) Causing the death of the deceased.
Where applicable the plaintiff shall rely on the doctrine of Res Ispa Loquitor
6. The plaintiffs claim is brought under the fatal accident Act Cap 32 laws of Kenya and the Law
Reform Act 26 Laws of Kenya.
7. Particulars pursuant to the Law Reform Act. At the time of her death, the said Purity Kagwira was 25
years of age. She enjoyed good health and was living a happy and vibrant life with a normal
expectation of life and by her sudden premature death, her expectation of a healthy and happy life
was considerably shortened and her said estate has suffered expenses, loss and damage
8. Particulars pursuant to the Fatal Accidents Act
a) The plaintiff here in instituted this suit as the legal representative of the estate of the deceased
b) The name of the dependent for whose benefit his action is brought is;
ANITA WANJA M”KIRIMA –MOTHER
c) The nature of the claim of which damages are sought is as follows:
At the time of her death, the deceased was aged 25 years of age; she enjoyed good health and lived
on a happy vigorous life. She was a businesswoman by profession. Her income from her cereal
business brought her an income of Kshs. 20,000 per month. She had good prospects of considerable
advancement in her cereal business where her annual income was likely to increase progressively
from month to mouth out of the said income, she used part of the same to support her family who
were dependants upon here and by her death they have lost the said means of support and have
thereof suffered loss and damage. As a result, she suffered special damages amounting to the
following:
PARTICULARS OF SPECIAL DAMAGES
a) Police abstract- Ksh 200
b) Death certificate- Ksh 250
c) Postmortem –Kshs 2,500
d) Mortuary charges- Kshs 4,800
e) Postmortem report-Kshs 5,000
f) Funeral and burial expenses-Kshs 39,470
g) Legal fees in grant of letters of administration Meru HC xxx –KSHS 30,000
TOTAL=82,220
List of particulars you can prove
9. The plaintiff’s claim against the 1st defendant is for general damages under both the Law Reform Act
and Fatal Accidents Act, special damages, costs and interests of the suit
10. The 1st defendant being the registered owner of motor vehicle registration number KAM 413Y must
have allowed, condoned and/or commissions of his driver, agent, servant and/or employee and is
therefore vicariously liable for his tortious actions.
11. Despite demand and notice of intention to sue having been given, the defendants have refused,
failed, ignored and/or neglected to make good the plaintiffs claim hence necessitating the institution
of this suit.
12. There is no other suit pending or concluded between the same parties herein and over the same
subject matter. (To cover issues of res judicata)
13. The cause of action arose within the jurisdiction of this honourable court.

REASONS WHEREFORE the Plaintiff prays for judgment against the Defendants jointly and
severally for:

a) General damages under both the Law Reform Act and the Fatal Accidents Act

b) Special damages of Kshs.82,220/=

c) Costs of this suit

d) Interest at court rate on (a), (b) and (c) above.

DATED AT MERU THIS.............................DAY OF..............................2009

 FOR KIAUTHA ARITHI & CO.

ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY:

M/S KIAUTHA ARITHI & CO
ADVOCATES
P.O BOX 2418 – 60200
MERU.
TO BE SERVED UPON:
JAPHET MBAE RUTERE
DENNIS MWONGERA MBAE
P.O. BOX 368 – 60202
NKUBU.
Plaint Example 3 with required accompanying Documents/Pleadings:

THE REPUBLIC OF KENYA

IN THE SENIOR RESIDENT MAGISTRATES’ COURT AT NAKURU
CIVIL SUIT NO. OF 2019

AMONDI ADHIAMBO (Suing on behalf of the

Estate of PHILISTER MTULIVU[Deceased])--------------------------------------- PLAINTIFF

-VERSUS-
JARED MAKOSA ----------------------------------------------------------------------- DEFENDANT

PLAINT
(FAST TRACK)

1. The Plaintiff resides and works for gain within the Republic of Kenya and brings this suit
under both the Fatal Accidents Act Cap 32 Laws of Kenya and Law Reform Act Cap 26 Laws
of Kenya as the Administrator and Personal Representative of the Estate of PHILISTER
MTULIVU (Deceased) and on behalf of the Deceased’s Estate including the family of the
Deceased and the Plaintiff’s own behalf and having obtained Letters of Administration, the
Plaintiff’s address of service for the purposes of this suit shall be care of XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR, WEST ROAD, P. O. BOX 12345, NAKURU.

2. The Defendant resides and works for gain within the Republic of Kenya (Service of summons
shall be through the Plaintiff’s Advocate’s office).

3. At all material times this suit the Defendant was the registered, beneficial and/or insured
owner of Motor Vehicle Registration Number KXX 123A Toyota Corolla.

4. On or about 25/8/2016 along Nakuru-Eldoret Road, the Deceased Philister Mtulivu was
lawfully travelling as a passenger aboard Motor Vehicle Registration Number KXX
123A Toyota Corolla when the Defendant, his authorized driver, servant, agent and/or
employee drove, managed and/or controlled Motor Vehicle Registration Number KXX
123A Toyota Corolla so negligently, carelessly, recklessly and/or dangerously that they
occasioned Motor Vehicle Registration Number KXX 123A Toyota
Corolla to lose control and occasion a road accident which subsequently led to the
Deceased’s death on 25/8/2016 full particulars of which are within the Defendants
knowledge.

PARTICULARS OF NEGLIGENCE ON THE PART OF THE OWNER, AGENT, EMPLOYEE

AND/OR DRIVER OF MOTOR VEHICLE REGISTRATION NUMBER KXX 123A TOYOTA
COROLLA

a) Failing to stop, slow down, swerve, brake or in any other way manage Motor Vehicle
Registration Number KXX 123A Toyota Corolla to avoid the accident.
b) Failing to heed the Highway Code and observe traffic rules and regulations.
c) Failing to have any sufficient regard for the safety of other road users and passengers by
driving Motor Vehicle Registration Number KXX 123A Toyota Corolla without due care
and attention and in a manner that was dangerous.
d) Controlling, managing and/or causing Motor Vehicle Registration KXX 123A Toyota
Corolla to occasion an accident.
 e) Failing to keep any or any proper look out while driving Motor Vehicle Registration
Number KXX 123A Toyota Corolla and subsequently endangering the lives of other road
users and passengers in their driving manner.
f) Failing to take any evasive action in order to avoid the said accident.
g) Driving Motor Vehicle Registration Number KXX 123A Toyota Corolla at an excessive
speed in the circumstances.
h) Driving Motor Vehicle Registration Number KXX 123A Toyota Corolla without presence
of mind.
i) Being negligent and careless and indifferent in the circumstances.
j) Causing the said road traffic accident.
And the Plaintiff pleads direct and/or whole negligence by the Defendant.

PARTICULARS OF DECEASED INJURIES

a) Hemorrhagic shock due to hemothorax bilaterally due to the road traffic accident leading
to the Deceased’s death as per the death certificate No.506620 dated 6/10/2016.

And the Plaintiff claims damages.

5. By reasons aforesaid, the Deceased sustained serious injuries from which she died from
while at Nakuru General Hospital on 25/8/2016, a few hours after the accident as a result
of which the Deceased lost her normal expectation of a robust, happy and successful life
besides leaving behind the following Dependents: -

a. Amondi Adhiambo - Daughter (24 years) - Adult

b. West Anna Nyako - Mother (67 years) - Adult

6. The deceased was prior to her death a young middle-aged woman of 43 years in her prime
and productive years. The Deceased was operating a Salon. The Deceased had a bright
future and financial prospects as she was earning Ksh.40, 000/= per month. The deceased
supported her family who were dependent on her for support and by her death they have
lost means of support and have suffered loss and damage.

7. Further by reason aforesaid the expectations of life of the deceased was considerably
shortened and her estate thereby suffered loss and damage and the Plaintiff claim’s special
and general damages.

PARTICULARS OF SPECIAL DAMAGES

a) Funeral expenses……………………………………………….Kshs. 44, 500.00/=

b) Letters of Administration………………………………….…..Kshs. 60, 000.00/=
Kshs. 104, 500.00/=

8. As far as necessary, the Plaintiff shall rely on the doctrine of Res Ipso Loquitur.

9. Despite demand and notice of intention to sue having been given, the Defendant has failed,
refused and/or neglected to compensate the Deceased’s estate thus rending this action
necessary.

10. The Plaintiff avers that there is no other suit pending and that there have been no previous
proceedings, in any court between the Plaintiff and the Defendant over the same subject
matter and that the cause of action relates to the Plaintiff named in the Plaint.
11. The Plaintiff avers that the cause of action arose within the jurisdiction of this Honourable
court.

REASONS WHEREOF the Plaintiff prays for judgement against the Defendant for:-

a) General damages under the fatal accident Act (Cap 32) and Law Reform Act (Cap. 26) Laws
of Kenya.
b) Special damages of Kshs.104, 500/=
c) Cost of the suit
d) Interest on (a) (b) (c) and court rates.

DATED at NAKURU this day of November 2019.

XXX
ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY: -

XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD,
P. O. BOX 12345,
NAKURU. Our Ref: XXX-RTA(F)-15-19 (NKR)
Email: [email protected]
P.105 No: P.105/12234/2020
Practice No: LSK/2020/123
Tel: 0721234567

TO BE SERVED UPON: -

JARED MAKOSA
PO BOX 4567
NAKURU. Your Ref: T.B.A
E-mail: [email protected]
Tel: 072456789
 THE REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATES’ COURT AT NAKURU
CIVIL SUIT NO. OF 2019

AMONDI ADHIAMBO (Suing on behalf of the

Estate of PHILISTER MTULIVU[Deceased])-------------------------------------------------------- PLAINTIFF

-VERSUS-
JARED MAKOSA --------------------------------------------------------------------------------------- DEFENDANT

VERIFYING AFFIDAVIT

I, AMONDI ADHIAMBO (Suing on behalf of the Estate of PHILISTER MTULIVU[Deceased]) and of Post
Office Box Number 12345, Nakuru in the Republic of Kenya do hereby make oath and state as follows;

1. THAT I am the administrator to the Estate of Philister Mtulivu and the Plaintiff herein hence well
conversant with the facts of this case and competent to swear this affidavit.

2. THAT I verify the facts averred in the Plaint filed herein and state to the best of my knowledge that
the said facts are true.

3. THAT there is no pending suit and there are no previous proceedings in any Court between me and
the Defendants in respect of the course of action herein.

4. THAT what is deponed herein is true to be best of my knowledge, information and belief.

SWORN at Mombasa by the said

AMONDI ADHIAMBO
…………………….………………..
DEPONENT
This day of November 2019.

BEFORE ME

COMMISSIONER FOR OATHS

DRAWN AND FILED BY:-

XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD,
P. O. BOX 12345,
NAKURU. Our Ref: XXX-RTA(F)-15-19 (NKR)
Email: [email protected]
P.105 No: P.105/12234/2020
Practice No: LSK/2020/123 Tel: 0721234567
 THE REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATES’ COURT AT NAKURU
CIVIL SUIT NO. OF 2019

AMONDI ADHIAMBO (Suing on behalf of the

Estate of PHILISTER MTULIVU[Deceased])-------------------------------------------------------- PLAINTIFF

-VERSUS-
JARED MAKOSA --------------------------------------------------------------------------------------- DEFENDANT

PLANITIFF’S LIST OF WITNESSES

(Under Order 3 Rule 2(b) of the Civil Procedure Rules, 2010)

1. Amondi Adhiambo.
2. Police Officer from Nakuru Town Traffic Base.
3. Any other witness that may become available before hearing hereof.

DATED at NAKURU this day of November 2019.

XXX
ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY: -

XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD,
P. O. BOX 12345,
NAKURU. Our Ref: XXX-RTA(F)-15-19 (NKR)
Email: [email protected]
P.105 No: P.105/12234/2020
Practice No: LSK/2020/123
Tel: 0721234567

TO BE SERVED UPON: -

JARED MAKOSA
PO BOX 4567
NAKURU. Your Ref: T.B.A
E-mail: [email protected]
Tel: 072456789
 THE REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATES’ COURT AT NAKURU
CIVIL SUIT NO. OF 2019

AMONDI ADHIAMBO (Suing on behalf of the

Estate of PHILISTER MTULIVU[Deceased])-------------------------------------------------------- PLAINTIFF

-VERSUS-
JARED MAKOSA --------------------------------------------------------------------------------------- DEFENDANT

PLAINTIFF’S WITNESS STATEMENT

(Under Order 3 Rule 2(c) of the Civil Procedure Rules, 2010)

1. I, AMONDI ADHIAMBO (Suing on behalf of the Estate of PHILISTER MTULIVU[Deceased]) and

of Post Office Box Number 12345, Nakuru in the Republic of Kenya do hereby make oath and
state as follows: -

2. That I am the legal representative of the estate of PHILISTER MTULIVU [Deceased] as well as the
daughter of PHILISTER MTULIVU [Deceased] who at the time of her death on 25/8/2016 was 43
years old running a salon with Salome Achieng Adie while earning monthly sums of Kshs.40,
000/=. As such I have the capacity to institute suit on behalf of and for the benefit of the
Deceased’s estate.

3. On or about…
….
15. That is all and more to state at the hearing hereof.

……………………………………………………………………………….
AMONDI ADHIAMBO

DATED at NAKURU this day of November 2019.

XXX
ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY: -

XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD,
P. O. BOX 12345,
NAKURU. Our Ref: XXX-RTA(F)-15-19 (NKR)
Email: [email protected]
P.105 No: P.105/12234/2020
Practice No: LSK/2020/123
Tel: 0721234567

TO BE SERVED UPON: -
JARED MAKOSA
PO BOX 4567
NAKURU. Your Ref: T.B.A
E-mail: [email protected]
Tel: 072456789
 THE REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATES’ COURT AT NAKURU
CIVIL SUIT NO. OF 2019

AMONDI ADHIAMBO (Suing on behalf of the

Estate of PHILISTER MTULIVU[Deceased])-------------------------------------------------------- PLAINTIFF

-VERSUS-
JARED MAKOSA --------------------------------------------------------------------------------------- DEFENDANT

LIST OF DOCUMENTS

(Under Order 3 Rule 2(d) of the Civil Procedure Rules, 2010)

1. Copy of National I.D of Amondi Adhiambo.
2. Copy of National I.D of West Anne Nyako (Deceased’s mother).
3. Receipt of Kshs.60, 000/= dated 22/11/2017 being payment of taking out a grant.
4. Copy of grant of letters of Administration Intestate issued by the Honourable Court on 2/8/2018.
5. Huzuni Funeral Services Agreement form of Kshs.44, 000/= payment.
6. Permit for burial (Form D1) with Number 1234567.
7. Copy of Certificate of Death with Serial Number 123456.
8. Copy of a letter from Nakuru Town Chief dated 4/5/2017.
9. Copy of Police Abstract from Nakuru Town Police Station dated 10/10/2016.
10. Motor Vehicle Search (Motor Vehicle Copy of Records) dated 6/11/2018 for KBB 365D.
11. Demand letter dated 18/10/2018 to Jared Makosa plus its Postage receipt of Kshs.105/=.
12. Statutory Notice dated 18/10/2018 to Insurance Company Limited plus its Postage receipt of Kshs.105/=.
13. Bundle of Rent Receipts.
14. Any other documents that may be produced at trial by the Plaintiff with the leave of the
court.

DATED at NAKURU this day of November 2019.

XXX
ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY: -

XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD,
P. O. BOX 12345,
NAKURU. Our Ref: XXX-RTA(F)-15-19 (NKR)
Email: [email protected]
P.105 No: P.105/12234/2020
Practice No: LSK/2020/123
Tel: 0721234567

TO BE SERVED UPON: -

JARED MAKOSA
PO BOX 4567
NAKURU. Your Ref: T.B.A
E-mail: [email protected]
Tel: 072456789
Summons to Enter Appearance
O.5.r.2(1) CIVIL 1B

REPUBLIC OF KENYA
______________

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. OF 2019

AMONDI ADHIAMBO (Suing on behalf of the

Estate of PHILISTER MTULIVU[Deceased])-------------------------------------------------------- PLAINTIFF

-VERSUS-
JARED MAKOSA --------------------------------------------------------------------------------------- DEFENDANT

To:
Jared Makosa
PO BOX 4567
NAKURU.
WHEREAS the above-named Claimant has instituted a suit against you upon the claim, the particulars of which are set out in the copy
claim with annexure attached hereto.

YOU ARE HEREBY REQUIRED within 15 (Fifteen) days from the date of service hereof to enter an appearance in the said
suit.
Should you fail to enter an appearance within the time mentioned above, the plaintiff may proceed to the suit and judgment may
be given in your absence.
Given and issued under my hand and the Seal of Court this ………………………………………….……. day
of ……………………….., 2019
………………………………………
Magistrate/Executive Officer,
Or Officer appointed under O.5., rule 1(2)
IMPORTANT NOTICE
(1) You may appear in this suit by entering an appearance either personally, or by duly appointed advocate
at ………..NAIROBI………..Appearance can be entered by filing with the court Memo. of Appearance (forms are obtainable from Court
at 30 cents each) in duplicate, showing the defendant’s address for service. A copy of Memo. of Appearance should be sent to the Plaintiff
or his advocate, if any. XXX ADVOCATES, N.S.S.F BUILDING, 4TH FLOOR, WEST ROAD, P. O. BOX 12345, NAKURU.
You may enter an appearance through the Post by sending the following to the …….… CHIEF……
Magistrate (Civil), P.O. Box NAIROBI
(i) Memorandum of Appearance and a copy.
(ii) Notice of Appearance and a copy.
(iii) Two envelopes each sufficiently stamped; one addressed to the plaintiff or his advocate at the address for service
and the other addressed to yourself.

(1) If you admit the claim the total sum now due is:-
Sum claimed in plaint…...
Advocate’s costs ……..
Court fees ….……. SEE PLAINT
Court collection fee…..…
TOTAL…………………

(3) If payment is made direct to the plaintiff no court Collection fee is payable. Cheques cannot be accepted. Remittances must
by coin, bank-notes or postal orders.
(4) This summons is valid for 12 months from the date of issue. [P.T.O]

I have received copies of the summons and the plaint on this …………………….…. day of
……………………………….. 20……….. at ……………………… o’clock.

…………………………………..
Signature of Recipient
 THE REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATES’ COURT AT NAKURU
CIVIL SUIT NO. OF 2019

AMONDI ADHIAMBO (Suing on behalf of the

Estate of PHILISTER MTULIVU[Deceased])-------------------------------------------------------- PLAINTIFF

-VERSUS-
JARED MAKOSA --------------------------------------------------------------------------------------- DEFENDANT

AFFIDAVIT OF SERVICE
I, DENNIS MAKOKHA of P.O. Box XXX, Nakuru in Republic of Kenya do hereby make an
oath and state as follows:-
1. THAT I am a court process server duly authorized by the Honourable court of High
Court of Kenya to serve court documents.
2. THAT on 10th April 2019, I received copies of a Notice of Motion dated 5 th March 2019
filed under a Certificate of Urgency and indicating that the Honourable Court will be
moved to hear the Application on 29th April 2019 from M/s XXX Advocates, for the
Applicants herein with express instructions to serve upon Mr. Jared Makosa.
3. THAT on same day at around 10.00am, I proceeded to the offices of XXX situated at
along 1st Ngong Avenue in Nairobi, where I found Mr. Jared to whom I introduced
myself and the purpose of my visit, I then tendered to him the copies of the Plaint dated
5th March 2019 and Summons to Enter Appearance dated 30 th March 2019, he then
accepted my service by signing my copies for acknowledgement.
4. THAT I do hereby return to this Honourable Court copies of the Plaint dated 5 th March
2019 and Summons to Enter Appearance dated 30th March 2019 duly served and
acknowledgement for.
5. THAT what I have stated herein is the best to my knowledge, information and belief.

SWORN at Nairobi by said

DENNIS MAKOKHA
This day of 2019

BEFORE ME
……………………………………
DEPONENT
COMMISSIONER OF OATHS

DRAWN & FILED BY: -

XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD,
P. O. BOX 12345,
NAKURU. Our Ref: XXX-RTA(F)-15-19 (NKR)
Email: [email protected]
P.105 No: P.105/12234/2020
Practice No: LSK/2020/123
Tel: 0721234567
 DEFENCE AND COUNTERCLAIM

Example 1: Defence Only

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO XXX OF 2002

JACK MWANGI ………………………….…………………….………….………....…PLAINTIFF

VERSUS
NAIROBI INSURANCE LTD. ……………………....……..………………….…..1ST DEFENDANT
MTU MJANJA …………………………………….…………….…….………… 2ND DEFENDANT

1ST DEFENDANT’S DEFENCE

1. Save for the facts herein expressly admitted, the defendant denies each and every
allegation in the plaint as if the same were set out and traversed seriatim.

2. Paragraphs 1, 2 and 3 of the Plaint are admitted in so far as they are descriptive of the
parties, save that the 1st defendant’s address if care of XXX ADVOCATES, N.S.S.F
BUILDING, 4TH FLOOR, WEST ROAD, P. O. BOX 12345, NAIROBI.

3. In answer to paragraph 5 of the plaint, the 1st Defendant:

(i) Avers that the plaintiff defaulted in the repayment of mortgage debt.

(ii) Avers that it issued a statutory notice.

(iii) Avers that the plaintiff repeatedly made proposals that he failed to honour.

(iv) Denies that it charged interest that was unconscionable or contrary to the
agreement as alleged or at all and puts the plaintiff to strict proof thereof.

(v) Denies that the plaintiff had repaid the debt or overpaid the same as alleged or at
all.

(vi) Avers that it sold the property after proper notice and for just cause.

(vii) Denies that it failed to render a full or proper account as alleged.

4. 1st Defendant avers that at the time of sale there was a balance of Kshs. 703,221.80
outstanding which sum included costs incurred on the plaintiff’s account arising from
recovery efforts and various actions thereof.

5. The 1st Defendant denies that there was an agreement in the terms set out in
paragraph 7 of the plaint and puts the plaintiff to strict proof. Further the 1 st
defendant avers that paragraph 7 of the plaint contradicts paragraph 5(c) of the
Plaint.
 6. In answer to paragraph 8 of the plaint the 1st Defendant;

a. Denies that there was an agreement in the terms alleged and avers that the
plaintiff was required to pay the entire sum due. The plaintiff failed to do so and
the property was sold.

b. The auction sale of 9th July 2002 was conducted in public and was duly advertised
in the daily newspapers and the plaintiff and his advocates were fully aware of the
place and time of the said auction.

c. The security property was sold for Kshs. 3,360,000/= to the highest bidder at a
public auction which was the market value. The plaintiff’s equity of redemption
was extinguished upon the said sale.

7. The plaintiff filed suit in XXX of 2001, which was transferred to the High Court
pursuant to an order made in Miscellaneous application XXX of 2002 on the same
subject matter and involving the same parties. The 1st defendant avers that the filing
of multiple suits by the plaintiff is an abuse of the court process.

8. The 1st Defendant will at the first hearing of this matter raise a preliminary objection
that the suit is res subjudice and/or an abuse of the court process.

REASONS WHEREFORE the 1st Defendant prays that the suit be dismissed with costs

DATED at NAIROBI this day of 2002

XXX
ADVOCATES FOR THE 1ST DEFENDANT

DRAWN & FILED BY: -

XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD,
P. O. BOX 12345,
NAIROBI. Our Ref:
Email: [email protected]
P.105 No: P.105/12234/2020
Practice No: LSK/2020/123
Tel: 0721234567

TO BE SERVED UPON: -

INSERT PLAINTIFF’S ADVOCATE’S DETAILS

NAIROBI. Your Ref:
E-mail:
Tel:
Example 2: Defence and Counterclaim

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO XXX OF 2009

JACK MWANGI ………………………….…………………….………….………....…PLAINTIFF

VERSUS
NAIROBI INSURANCE LTD. ……………………....……..………………….………DEFENDANT

DEFENDANT’S STATEMENT OF DEFENCE AND COUNTERCLAIM

1. Save for the facts herein expressly admitted the defendant denies each and every
allegation in the plaint as if the same were set out verbatim and traversed seriatim.
2. Paragraphs 1 and 2 of the plaint are not denied in so far as the same are merely
descriptive of the parties herein, save that the Defendants’ address for service for
purposes of this suit shall be care of XXX ADVOCATES, N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD, P. O. BOX 12345, NAIROBI.
3. In response to paragraph 3 of the Plaint, the defendant avers that at the material time
the Plaintiff was an agent of the defendant and his services were subsequently terminated
for reasons within the Plaintiff’s knowledge. The defendant further avers that at the
material time all transactions relating to the relationship between the parties herein were
undertaken in Nairobi within the Republic of Kenya and as such this Honourable Court
lacks jurisdiction to entertain this suit.
4. The contents of paragraphs 4 of the plaint are admitted save that the Plaintiff defaulted
in undertaking his obligation under the terms and conditions of Car Loan Agreement and
as a consequence thereof the said motor vehicle registration number KXX 284X was
transferred to the Defendant and the Defendant subsequently took possession and/or
title over the said motor vehicle.
5. The defendant denies in toto the contents of paragraph 5 of the plaint and invites strict
proof thereof.
6. Without prejudice to any denials the Defendant states that the Plaintiff was to pay the
Defendant the outstanding amount due to the defendant for the car loan upon
termination of the employment contract as his obligation under the terms and conditions
of Car Loan Agreement but the Plaintiff breached his obligations thereof. The defendant
thus avers that the Plaintiff has no cause of action against the defendant.
7. In response to the allegations contained in paragraph 6 of the plaint, the defendant wish
to state that the defendant instructed the auctioneers to attach the motor vehicle
registration number KXX 284X after the plaintiff failed to comply with the terms of the
car loan agreement by defaulting in payment of the outstanding amount in full. The
defendant further avers that the said attachment, if any, was conducted in accordance
with the law and terms of the said agreement.
8. Further to paragraph 6 the Defendant avers that at the time of attachment of the motor
vehicle, the same was duly registered in the name of the Defendant Company.
9. The contents of paragraph 7 of the plaint are denied and the Defendant puts the plaintiff
to strict proof thereof.
10. The allegations contained in paragraph 8 of the plaint are denied in toto and the same
are irrelevant to this suit as they are intended to pre-empt the defendant’s right to claim
the outstanding amount due to the defendant.
11. The contents of paragraph 9 of the plaint are admitted.
12. The jurisdiction of this Court is denied in toto as the cause of action arose in Nairobi and
the defendant’s Head offices are situated in Nairobi. The defendant will at the hearing
hereof raise a Preliminary Objection seeking to strike out the suit and/or to transfer it to
the Chief Magistrate’s Court at Nairobi.

COUNTERCLAIM

13. The Defendant reiterates the contents of paragraphs 1 to 12 of the defence as pleaded
herein above.

14. The Defendant counterclaims against the Plaintiff Kshs. 307,216.90 as at 30 th April 2009
being the outstanding amount due as a result of default on the part of the plaintiff to pay
the Car loan balance.

15. The Defendant avers that a Car Loan Agreement was executed between the parties
herein wherein the Plaintiff in the suit borrowed a sum of Kshs. 608,811.35 from the
Defendant to purchase motor vehicle registration number KXX 284X and the terms and
conditions of the Agreement were, inter alia that:-

(a) The period for the loan was 4 years;

(b) The interest applicable was 7%,

(c) The loan together with interest was to be repaid within 48 months;

(d) The Loan or balance thereof for the time being outstanding shall bear interest at
the reduced rate of 7% or as varied from time to time;
 (e) In the event of termination, all amounts due from the Plaintiff in the main suit
shall be immediately due and payable to the Defendant in the main suit and by
the Agreement the Plaintiff authorizes the Defendant to recover any outstanding
amounts from the Plaintiff’s termination dues, if any;

(f) After the Plaintiff ceases to be employed or contracted by the Defendant for
whatever reason the interest rate per annum shall be 5% over the Barclays Bank
of Kenya Limited’s base rate from time to time such interest to be calculated on a
daily basis from the date payment falls due until the date of actual payment;

16. The Defendant further avers that the contractual relationship and/or employment of the
Defendant was terminated and/or ceased on 21st October 2008 or thereabout and the
Plaintiff subsequently failed to comply with the terms and conditions of the Car Loan
Agreement.

17. As a consequence thereof the Defendant avers the sum due from the Plaintiff arising from
the said Car Loan Agreement as at 30th April 2009 is Kshs. 307,216.90 which continues to
accrue interest.

REASONS WHEREFORE the Defendant prays that the plaintiff’s suit be dismissed with costs and
judgment be entered for the Defendant against the Plaintiff for Kshs. 307,216.90 as prayed in
the counterclaim.

DATED at NAIROBI this day of 2009.

XXX
ADVOCATES FOR THE 1ST DEFENDANT

DRAWN & FILED BY: -

XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD,
P. O. BOX 12345,
NAIROBI. Our Ref:
Email: [email protected]
P.105 No: P.105/12234/2020
Practice No: LSK/2020/123
Tel: 0721234567

TO BE SERVED UPON: -

INSERT PLAINTIFF’S ADVOCATE’S DETAILS

NAIROBI. Your Ref:
E-mail:
Tel:
 REPLY TO DEFENCE

Example 1
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMAMI LAW COURTS
CIVIL DIVISION
CIVIL SUIT NO. XXX OF 2019

SACCO SOCIETY LTD……………………………………………….……………………...PLAINTIFF

VERSUS
BEST SOLUTIONS LTD…………………………………………………………………...DEFENDANT

REPLY TO DEFENCE

1. Save and except where the Defendant’s Defence contains express admissions, the Plaintiff
joins issues with the Defendant.

2. The Plaintiff refutes the contents of paragraph 3 of the Defence, reiterates the contents of
paragraph 3 of the Plaint, and further states that the Plaintiff terminated its agreement with
the Defendant pursuant to the terms and provisions of the said agreement.

3. The Plaintiff in denying the contents of paragraphs 4 to 12 of the Defence, and in particular,
that the Defendant did not have a duty of care and that the Mobile Banking System and/or
server was not attacked by a fraudster hacker through its actions and/or inactions
occasioning losses to the Plaintiff, reiterates the contents of paragraphs 4 to 12 of the Plaint
and puts the Defendant to strict proof of the contrary.

4. In response to paragraph 13 of the Defence, the Plaintiff denies that the matters in this case
are the same matters pending in Nairobi High Court Civil Suit Number XXX 2018 involving
the same parties and puts the Defendant to strict proof to the contrary.

5. The contents of paragraph 14 of the Defence are denied and the Plaintiff reiterates that this
Honourable Court has jurisdiction.

6. The Plaintiff refutes the contents of paragraphs 15 to 17 of the Defence and puts the
Defendant to strict proof.

REASONS WHEREFORE the Plaintiff prays for judgment against the Defendant as prayed for in
the Plaint.

DATED at NAIROBI this…………………..day of……………………………, 2019.

OKUBASU & MUNENE

ADVOCATES FOR THE PLAINTIFF

DATED at NAKURU this day of November 2019.

XXX
ADVOCATES FOR THE PLAINTIFF
DRAWN & FILED BY: -
XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD,
P. O. BOX 12345,
NAKURU. Our Ref: XXX-RTA(F)-15-19 (NKR)
Email: [email protected]
P.105 No: P.105/12234/2020
Practice No: LSK/2020/123
Tel: 0721234567

TO BE SERVED UPON: -

INSERT DEFENDANT’S ADVOCATE’S DETAILS

NAIROBI. Your Ref:
E-mail:
Tel:
 AMENDMENT OF PLEADINGS
EXAMPLE 1:

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO…XXX OF……2018

IN THE MATTER OF CONSTITUTION OF KENYA 2010

AND
IN THE MATTER OF THE TOURISM ACT 2011
AND
IN THE MATTER OF THE TOURISM ACT 2011
AND
IN THE MATTER OF APPOINTMENTS TO AND COMPOSITION OF THE KENYA
TOURISM BOARD
AND
IN THE MATTER OF APPOINTMENTS TO AND COMPOSITION OF THE BOARD
OF THE TOURISM RESEARCH INSTITUTE
AND

IN THE MATTER OF APPOINTMENTS TO AND COMPOSITION OF THE BOARD

OF THE TOURISM REGULATORY AUTHORITY
AND
IN THE MATTER OF APPOINTMENTS TO AND COMPOSITION OF THE BOARD
OF THE TOURISM FINANCE CORPORATION

BETWEEN
XXX………………...………………………………………...……………..PETITIONER

VERSUS

CABINET SECRETARY FOR TOURISM………………….1ST RESPONDENT

KENYA UTALII COLLEGE COOUNCIL…….…………… 2 ND RESPONDENT
KENYA TOURISM BOARD…………………….…….…..….. 3RD RESPONDENT
TOURISM RESEARCH INSTITUTE………………………..4 TH RESPONDENT
TOURISM REGULATORY AUTHORITY……………...…..5 TH RESPONDENT
TOURISM FINANCE CORPORATION……………....…….6TH RESPONDENT

AMENDED PETITION
A. Parties

1. The PetitiETIOner Petitioner is a citizen of the Republic of Kenya. His address for the sake of
this suit is care of XXXX ADVOCATES.

2. The 1st RespoDOEndent Respondent is the Cabinet Secretary responsible for matters relating
to tourism and has the duty of appointing members of the 2nd to the 6th Respondent’s Board
in accordance with sections 20 (2)(9) 32 (1)(f), 20(2), 54(1)(h), 8(1)(g) and 77(1)(e)
 respectively of the Tourism Act 2011. It is served through the 3 rd Respondent. [Service of
summons shall be effected through the Petitioners’ Advocate offices]

3. …..

4. The 2nd to the 6th Respondents are statutory bodies established by the Tourism Act, 2011.
[Service of summons shall be effected through the Petitioners’ Advocate offices]

B. Legal foundations of the Petition

5. Under article 3. (1) of the Constitution, every person has an obligation to respect, uphold
and defend the Constitution.

6. Under article 10 of the Constitution, (a) patriotism, national unity, sharing and devolution of
power, the rule of law, democracy and participation of the people; (b) human dignity,
equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection
of the marginalised; (c) good governance, integrity, transparency and accountability are
listed as national values and principles of governance that bind all State organs, State
officers, public officers and all persons whenever any of them applies, or interprets the
Constitution or formulate policy.

7. Under article 20. (1) of the Constitution, the Bill of Rights applies to all law and binds all
State organs and all persons

8. Under article 22 of the Constitution, every person has the right to institute court proceedings
claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated
or infringed, or is threatened and that includes, under (c) a person acting in the public
interest.

9. Article 23. (1) of the Constitution gives the High Court jurisdiction, in accordance with
Article 165, to hear and determine applications for redress of a denial, violation or
infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

10. Under article 27 (6) of the Constitution, the state is required to give full effect to the
realisation of the rights guaranteed under the Article, by taking legislative and other
measures, including affirmative action programmes and policies designed to redress any
disadvantage suffered by individuals or groups because of past discrimination.

11. Further to section 27 (6), the state is required to take legislative and other measures to
implement the principle that not more than two-thirds of the members of elective or
appointive bodies should be of the same gender.

12. Under article 250 (4) of the Constitution, appointments to commissions and independent
offices should take into account the national values mentioned in Article 10, and the
 principle that the composition of the commissions and offices, taken as a whole, shall reflect
the regional and ethnic diversity of the people of Kenya.

13. Article 165 the High Court has jurisdiction to hear any question respecting the interpretation
of this Constitution including the determination of the question whether anything said to be
done under the authority of the Constitution or of any law is inconsistent with, or in
contravention of, the Constitution.

14. Section 20 (1) of the Tourism Act establishes the 2nd Respondent and operated and managed
by the council.

Facts

15. Vide Kenya Gazzette No. …, the 1st Respondent exercising powers conferred upon it by
section 20 (2)(g) of the Tourism Act, 2011 appointed the 1st, 2nd, 3rd, 4th , 5th & 6th, Interested
Parties to serve as council members of the 2nd Respondent.

16. Their appointment was for a period of 3 years with effect from 2 October 2018.

17. In the end, there is only 2 out of 13 persons of different gender serving in the 2 nd
Respondent council.

18. The composition also disregards the statutory demand that members of the council should
be appointed on different times as all the 1st to 6th Interested Parties were appointed on the
same day.

19. There is no evidence of a competitive process conducted by the 1st Respondent in the
appointment hence the same casts doubts as to whether the 1st to 5th interested parties have
the requisite knowledge, skills and capacity to discharge the function mandated by statute.

C. Violations and contraventions

20. The impugned composition of the 2nd Respondent council contravene articles 10 and 250 of
the Constitution well as section 20 (2)(g) of the Tourism Act, 2011 to the extent that it
disregards the requirement that its membership should be competitive, reflect regional and
gender balance.

21. Statute Law (Miscellaneous Amendments) Act No. 18 of 2014 is in contravention with the
spirit of article 10 of the Constitution read with article 73 of the Constitution to the extent
that it deleted the introductory parts of paragraph 20 (2) (g) that required appointments to
be done ‘through a competitive process’

22. The impugned composition of the 2nd RespondDOREnt council also specifically contravenes
and runs contrary to the content and spirit of article 27 (6) and 27 (8) of the Constitution as
it is made up of more than two thirds of persons of the same gender.
23. The impugned composition disregards the national value and principle of governance,
namely rule of law, set out under article 10 of the Constitution as the appointment of the 1st
to 6 th Interested Parties were done on the same day contrary to section 20 (3) of the
Tourism Act which requires that members of the 2nd Respondent should be appointed in
different times.

24. Statute Law (Miscellaneous Amendments) Act N.o 18 of 2014 is in contravention with the
spirit of Article 10 read together with Article 73 of the Constitution to the extent that it
deletes in all the aforementioned provisions ‘through a competitive process’

25. The impugned composition of the 2nd Respondent Board also specifically contravenes and
runs contrary to the content and spirit of article 27 (6) and 27 (8) of the Constitution as the
2nd Respondent Boards is made up of more than two thirds of persons of the same gender.

26. The impugned composition disregards the national value and principle of governance,
namely rule of law, set out under article 10 of the Constitution as the appointment of the 1 st
to 21st Interested Parties were done on the same day contrary to the provisions of the
Tourism Act which requires that members of the Respondent Boards should be appointed in
different times.

Reliefs

27. Reasons whereof the Petitioners pray:

a. A declaration that Statute Law (Miscellaneous Amendments) Act No. 18 of 2014 is in

contravention with article 10 of the Constitution (read with article 73 of the
Constitution) to the extent that it deleted the introductory parts of paragraph 20 (2) (g)
that required appointments to be done ‘through a competitive process.’

b. A reading in remedy to reintroduce the words ‘through a competitive process’ in the

lead-in paragraph 20 (2) (g) of the Tourism Act 2011.

c. A declaration that the composition of the 2nd Respondent council is unconstitutional and
unlawful to the extent that the appointment of the Interested Parties contravene articles
10, 27 and 250 of the Constitution well as section 20 of the Tourism Act 2011.

d. An order declaring the decisions of the 2nd Respondent council as illegal and null and
void ab initio in view of its unlawful composition.

e. A declaration that the Statute Law ( Miscellaneous Amendments Act No. 18 of 2014 is in
contravention with Article 10 of the Constitution read with Article 73 of the Constitution
to the extent that it deletes the requirement that the 2nd to the 5th Respondent Boards be
recruited through a competitive process’’
 f. A reading in remedy to re-introduce the words through a competitive process in sections
32 (1)(f), 54(1)(h), 8(1)(g) and 77 (1)(e) of the Tourism Act 2011.

g. A declaration that the composition of the 2nd to the 5th Respondent Boards are
unconstitutional and unlawful to the extent that the appointment of the Interested
Parties contravene articles 10, 27 and 250 of the Constitution.

h. An order declaring the decisions of the 2nd to the 5th Respondent Boards as illegal and null
and void ab initio in view of its unlawful composition.

i. Any other order or relief that this court will be pleased to issue.

j. Costs of this petition

Dated at Nairobi this ___________day of __________________2018

XXX
ADVOCATES FOR THE PETITIONER

DRAWN & FILED BY: -

XXX ADVOCATES,
N.S.S.F BUILDING, 4TH FLOOR,
WEST ROAD,
P. O. BOX 12345,
NAKURU. Our Ref: XXX-RTA(F)-15-19 (NKR)
Email: [email protected]
P.105 No: P.105/12234/2020
Practice No: LSK/2020/123
Tel: 0721234567

TO BE SERVED UPON: -

INSERT RESPONDENTS AND ADDITIONAL INTERESTED PARTIES’ADVOCATES’ DETAILS.

FOR ADDITIONAL DETAILS NOT INITIALLY IN THE PETITON PUT THEM IN RED
NAIROBI. Your Ref:
E-mail:
Tel:
1. XXX
Kenya Re-Towers, Ragati Road,
P.O. BOX 12345-00100
Nairobi