Objection proceedings under the Law/Order 22

 Can you stop execution?

You can stop execution by Objection proceedings under Order 22 rule 50 . Where property is attached the attachment may be objected to through objection proceedings. Any person who is entitled to have any legal or equitable interest in the property to be attached may at any time before sale or paying out of the proceedings of the sale object in writing to the court.

Where judgement has been entered against a JD and a decree has been issued and a decree holder has applied for execution and property has been attached, there is provision for objection to the attachment, the grounds are usually that the property does not belong to the JD but to a third party, usually the commonest of objections are made by the spouses.


Order 22 Rule 51
Any person claiming to have legal interest in any property attached in execution of a decree may at any time give notice of his objection to attachment of the property.  Briefly set the nature of claim, how one relates to the property.

Stay of execution is no longer automatic on the lodging of the notice and to expedite objection proceedings the notice must be lodged together with application and supporting affidavit which must be served within seven days on all the parties. The court on receipt of the notice and application is empowered to order stay but not for more than 14 days. The attaching creditor is to be notified to intimate whether he intends to proceed within 7 days. If he intends to proceed the intimation is likewise to be accompanied by a replying affidavit and the application is to be dealt with expeditiously. These provisions are meant to expedite the objection proceedings and to prevent abuse of the process of court normally associated with the said proceedings.

Where there is a family property, or a body corporate and the JD is a director, the company has a right to object to the attachment that the property belongs to the company “Salmon v Salmon” principle the property belongs to the company, the property can therefore not be attached.   It is made easier for the company to object on its own through another advocate to avoid conflict of interest.  The court will call upon the decree holder upon receipt of notice, order stay of execution, prepare a notice which goes to decree holder requiring decree holder to indicate whether he still wishes to proceed with attachment, then the decree holder should communicate to court if he still wishes to proceed.  If the decree states that he does not wish to proceed with execution, the court will order that the attachment may be raised and make orders as to costs as it may deem fit.  The question of costs is on who bears the costs since there is a third company i.e. the company, the court must then make an order as to costs.  If it appears to have been wrongful attachment, the costs payable to objector are to be paid by decree holder.

Where the decree holder wishes to continue with execution and attachment, the court will issue notice to objector directing objector to take out notice to establish his claim within 10 days.  This is by way of Chamber Summons establishing a suit in which the decree has been issued for execution, the application should establish claim by objector.  It is served on decree holder and any other party the court may direct to believe but the court can also direct that it may be served on the JD.  If the objector fails to file proceedings within time allowed by the court, then the objection will deemed to have been weak and attachment and execution will proceed.

If the objector files the application and the objector has evidence to adduce to the effect that decree holder is not entitled to order for lifting attachment, they may be allowed to file affidavits, if the court feels that there are matters in the affidavit that ought to be proved it will order oral evidence to be adduced before making a final order.  If the objection is rejected, the decree holder will be allowed to proceed with the attachment and execution.  If the objection is proved the court will order release of the property to the Objector and make an order as to costs.  The costs of the objector must be provided for where the objector has succeeded.

Another situation is where property of the Judgment Debtor is in the hands of the 3rd party.

Law of Partnerships(Summary Notes)

It is preferred business model as it is flexible. It also permits importation of expertise in to the business.

Governed by 2 laws: Partnerships Act and the Limited Liability Partnerships Act, both of 2012.

Definition - A business where two or more people carry out business jointly with a view to profit.

Elements – a partnership must have at least two people. There is no sole/individual partnership.

Element – the partnership must be engaged in joint business

Element – the business must be with a view to profit.

READ: Why are all investment groups (chamas) not considered as partnerships?

Entities excluded from the operation of the Partnership Act:

- Body corporates

- Limited liability partnerships

- Forms of organizations where members are less than two eg sole traders

- Bodies established by other Acts of Parliament eg Statutory corporations.

Formation of partnerships

Express agreement – written or oral, or by inference.

Where partners decide to execute a partnership deed or sign a memorandum or some other document showing their intention to form a partnership.

Partnership by inference/implication arises where parties hold themselves out as having formed a partnership, the relationship will be inferred from their conduct.

The critical legal issues in partnership law include:

- Types of partnerships

- Mutual obligations and responsibilities between partners, as well as the collective obligations of partners to the partnerships?

- Management and control of partnerships

- Financial affairs of partnerships- accounts and financial records

- Partnership contracts and powers of partners to bind each other

- Partnership property – what amounts to partnership property, acquisition and disposal

- Membership – acquisition and cessation of membership

- Dissolution and winding up of partnerships.

- Powers of courts in respect of partnerships.

Types of partnerships

Include ordinary/general partnership and limited partnerships. Extends to the limited liability partnership.

Previously there were Commonwealth partnerships and the East African Community Partnerships. However, both were repealed. Currently those partnerships not registered in Kenya have a window under foreign partnerships.

Duties and obligations of partners

They are of three types:

a) Fiduciary duties

b) Disclosure duties

c) Diligence duties

Fiduciary duties

a) Duty of good faith

Acting in bad faith includes:

- keeping secret profits

- maintaining parallel business to that of the partnership

- taking septs to frustrate the business of the partnership

- not acting in the best interest of the partnership

- breaching confidentiality clauses

- bringing the partnership into disrepute – includes criminal conduct

READ: case law on good faith

b) duty of disclosure

- Apply at formation or joining a partnership, as well as continuing duties.

- The obligation is on material information, the standard being that the information must be likely to influence the partners at the time of forming the partnership or the continuance of the partnership.

- Prospective partners have an obligation to disclose any information to each other which will influence the formation of the partnership.

- Where a partnership exists, the partners must disclose any information to the prospective partners which may influence their decision to join the partnership.

- The prospective partner also has an obligation to disclose to existing partners any information he believes will influence their decision to admit him as a partner.

- Partners have an obligation to express any information which will impact the continuance of the partnership.

- The three obligations on disclosure are: the obligation is discharged only if the disclosure is complete in all material respects; the obligation is discharged if disclosure is made as soon as reasonable; and further that the disclosure must be made to all partners.

c) Duty of diligence

- All partners are required to be engaged equally in the business of the partnership, unless a contrary provision is made under the partnership agreement.

- Similarly, general partners in the limited partnership are required to engage in the management and control of the partnership.

- First, every partner must be aware of the partnership business.

- Second, the partner must show skills and expertise required of you, first as an ordinary partner objectively, and those required of a person of your skill and experience subjectively.

- A partner must dedicate the required time in the business of the partnership.

- A partner must not be negligent.

- The obligations are owed between partners, as well as between the partner and the partnership.

Partnership membership

Initial persons proposing to form a partnership become members by executing a partnership agreement.A person can also be admitted into an existing partnership, subject to the unanimous agreement of all existing partners.Partnership by implication – holding yourself out as a partner in the presence of the partners.

A person ceases to be a partner on death, when adjudged bankrupt and not discharged for three months, or on dissolution of a partnership. Other methods is by retirement or resignation of a partner. One can also be expelled by fellow partners. Incapacity such as mental infirmity can form a ground for expulsion. The court can also order the removal of a partner.

Capital of the partnership

Partners have an obligation to contribute to the capital for the partnership business. Where the agreement has not set the limits, the obligation is to contribute equally.

The Act requires approval for all partners where any additional contribution is required. A partner who has extra contribution must also get the consent of all other partners.

A partnership can also receive loans or additional funds from its parters. The decision on whether to borrow from partners is an ordinary business which can be approved by a simple majority. Any loan given to the partnership can only attract a 3% interest (hinders partners from taking advantage of the partnership or other partners to loan money at excessive rates).

Partnership Management and control

All partners are entitled to engage in the business of the partnership diligently at all times. Further, partners are deemed agents of the partnership, with powers to contract and give undertakings and enter into obligations binding the partnership.

Partners are at liberty to specify the manner and procedures of control in the agreement. For instance, the agreement can provide:

- Who is the managing partner and their appointment

- Role and powers of managing partner

- Role and powers of other partners.

In absence of agreement, every partner is entitled to participate in the management and control of the company.

A number of matters require unanimous decision of all partners. They are not limited to:

- Admission of a new partner

- Decision to expel a partner except an exiting partner

- Decision to change the business of the partnership

- Decision to change partnership name.

In default, the rest of decisions are taken by majority. There is no provision in the Act to differentiate the voting rights on the basis of capital contribution – the principle is one vote per partner.

Partners therefore have powers to bind the partnership and other partners under the following conditions:

a) They must have power to do so

b) In the absence of powers, the person with whom they are contracting must have no notice that they lack the power

c) The contract must be entered in the course of partnership business.

The partner who has entered into a contract without authority is personally liable. The third party is entitled to sue the partner who contracts without authority and recover the price and damages.

Limited liability partnerships

Is a hybrid between an ordinary partnership and a limited liability company.

Defined as any partnership registered under the LiimitedLiablity Partnership Act 2012.

Unique advantages of LLPs

1. Flexible management and control provisions in LLPs is highly attractive – management is exercised by person known as General partner who makes decisions on the business of the partnership. This is essential in matters requiring expeditious decision making without undue formalities. It is the most preferred structure for investment vehicles such as private equity funds.

2. The LLP has separate distinct legal personality with perpetual succession. It is fairly stable as a formal business structure.

3. Tax efficient – in theory, an LLP is a tax-passthrough vehicle (partners do not suffer multiple tax regimes). Companies pay tax on profit as corporate tax, and members are in turn charged taxes on dividends. LLP partners are in turn taxed only once at individual level and not at the firm level.

4. LLPs enable sophisticated investors to exploit unique investment opportunities through its structure.

5. LLPs have lower compliance requirements – no need to file annual returns, circulate statements, callAGMs like private companies.

6. It enables professional firms which require partnerships under their regulations to raise capital from outside sources(from silent partners).

Drawbacks to LLPs

1. Fear of loss of control to the general partner

2. Misconception that setting up an LLP is fairly complex

3. The purported tax advantages are not

4. Public bodies treat LLPs suspiciously – they tend to view the strength of the LLP based on the strength of the individual partners as opposed to as a separate legal entity.

5. Limited capital raising abilities of the LLP – if the partners take out loans, the liability of the LLPs may exceed the capital contribution hence the business is often restricted to trading within its capital contribution limit.

6. For certain professional firms, the government laws are hindrances, e.g. The legal profession has restriction of sharing profits with non-qualified persons under the Advocates Act.

Establishment and registration of LLPs

Can be established by an express agreement or an implied agreement (just like in ordinary partnerships). However, an LLP must be registered under the Act.

For registration, the partners or the persons involved with the registration must file with the Registrar a statement in the prescribed format. The statement must be accompanied by the required documentation as provided in the Act. Further, an LLP must be registerd by two or more persons.

Among the key requirements of the statements, the following details are required:

a) The proposed name of the LLP – the Registrar must satisfy himself that the name has not been registered or is similar to those under the Companies Act, Registration of Business Names Act or to those of public bodies, or is generally undesirable.

b) Proposed business of the LLP

c) Particulars of the partners – names, addresses of the partners, ID no/REg. No of partners or coporate persons.

d) Particulars of capital

e) Proposed registered office of the business.

Where the registrar is satisfied, he registers the LLP and issues a Certificate of Incorporation. The certificate is conclusive proof that the LLP has been duly registered having complied with requirements of the Act.

Such LLP must use in its name, the words ‘LLP’.

Refusal of registrar

The registrar may refuse to register the LLP on own motion when:

a) Proposed business is illegal

b) Proposed name is similar to some other registered entity

c) It is in the public interest that LLP be not registered

d) The statement has not been filled with required information

e) Required documentation not provided.

The Registrar may decline registration if given a notice my the Cabinet Secretary Interior that it is in the national interest that the LLP be not registered.

An appeal from the registrar’s decision lies to the High Court.

The registrar for LLPs is the Registrar of Companies, presently the Director of the Business Serivces Registration Agency (BSRA).

Nature of LLPs

LLPs are separate distinct legal personality from the partners. Liability of all partners is limited, unlike in Limited Partnerships under the Partnerships Act, where the liability of the general partner is unlimited.

LLPs have perpetual succession.

The LLP has capacity to own property in its own name.

LLPs can sue and be sued in own name.

In general partnership, the agency of the partnership is presumed unless the contrary is proved. However, in LLP, only the general partners have presumed agency as a matter of course (a partner cannot bind the partnership unless he proves he is a general partner or is authorized to bind the partnership). Any claim or defence of any right must be done in the name of the LLP.

Management and control of LLPs

All LLPs are required to have at least one General partner.

Further, every LLP must have at least one natural person among the general partners under the Act.

KEY: Trade unions cannot be partners in LLPs.

All general partners are to be engaged in the daily management of the LLP unless a contrary provision is made.

Management and control of LLPs are governed by the LLP agreement. In the absence of such LLP agreement, or in absence of provision of the specific act in management by the agreement, the provisions of the first Schedule of the LLP Act apply.

Provisions of the LLP agreement

The LLP must also be a party to the LLP agreement, alongside the other partners.

Other contents of the agreement include;

- Parties

- Business description clause

- Capital clause

- Dispute resolution clause and applicable governing law

- Identification of the general partners

- Duties and obligations clauses

- Dissolution and winding up clauses

Conversion of other entities into LLPs

The Act identifies two kinds – ordinary partnership to LLP, and private limited liability company into LLP.

This is because the LLP merges the best features of both regimes.

Ordinary partenrships to LLPs

- All partners must sign a resolution agreeing to the conversion (unanimously).

- All existing partners must agree to be partners in the new LLP. A partnership going though a breakup, winding up or dissolution cannot thus be converted.

Conversion is by filing the statement and accompanied documents with the registrar. Upon registration, the LLP takes up the assets and liabilities of the partnership.

Limited liability companies to LLPs

Public companies cannot convert to LLPs, only private limited liability companies can convert.

The conversion must be supported by special resolution of the members of the company.

Where the assets of the company have been attached under a debt instrument or other encumbrance, the registrar will not agree to the conversion without prior consent of the creditors or any receiver manager. The assets must be without encumberance.

READ: documentation in conversion.

Partnership property and LLPs

There is no presumption of ownership. The property only becomes the LLP’s when it is formally acquired or registered in the name of the LLP. Unlike ordinary partnership where property can become partnership property when used by a partner in the ordinary course of partnership business, there is no presumption of property under LLP.

KEY: The LLP Act states that the Partnership Act applies to LLPs unless excluded or modified by the LLP Act itself. Therefore, the right and obligations of ordinary partners apply also to LLPs.

KEY: there is no corporate veil in LLPs. There is also no cap on the number of partners in LLPs.

READ: the LLP is not the bastion of good corporate governance. It is celebrated as an efficient investment vehicle – it has fewer regulatory requirements with the protection of limited liability and quick decision making by the fewer/single general partner(s). It allows investors to take advantage of urgent business opportunities.

LLP Membership and termination of membership

Acquisition of membership is governed by the agreement, or by signing the agreement as an initial partner.

Unlike general partnerships, membership to the LLP does not terminate automatically e.g. in cases of insanity, bankruptcy or death. Your representatives can take over your rights and obligations, until other partners apply to court for an order of termination of membership.

One ceases to be a partner by:

- Resignation, subject to a 90-day notice (termination by notice).

- By order of court – court can terminate membership in many instances, e.g. when a receiving order in bankruptcy is made against a partner and is not discharged within 3 months.

- By agreement – the agreement may terminate membership under certain conditions, e.g. time, purpose and dissolution/winding up of the partnership.

General partner- obligations

a) Daily management of the business of the partnership.

READ: distinction between management of the partnership itself, and management of the business of the partnership.

b) Contract on behalf of the partnership

c) Institute and defend suits by the partnership.

d) Keep proper books of accounts of the partnership.

e) Prepare and file an annual solvency report (minimum period between two reports must not be more than 15 months) – this protects the non-general partners and the creditors.

f) File any returns in the changes of the particulars in the LLP within 14 days – e.g. where some partners enter and exit, change in the registered office, etc.

Winding up/dissolution of LLPs

Any partner/creditor can apply to court for winding up/dissolution.

Further, the partners may agree by resolution to wind up/dissolve the LLP.

The Registrar may apply for winding up where the LLP is insolvent or where he deems it desirable for the LLP to be dissolved.

Where an LLP is insolvent and faces liquidation, the Fifth Schedule apply.

KEY: Liquidation of an LLP must only be carried out by a licensed insolvency practitioner, licensed under the Insolvency Act 2015.

Applicable areas for using CHAMBER SUMMONS and relevant provisions

 1. Striking out of plaint. (Under Order VI rule 13(1) (b) & (d) of the Civil Procedure Rules, section 3A of the Civil Procedure Act and all other enabling provisions of the law)

2. Amendment of plaint. (Under Order VIA Rule 3(1), 5, 7 and 8, Order 44 of the Civil Procedure Rules, Sections 95 and 3A of the Civil Procedure Act and all other enabling provisions of the law)

3. Third Party Application Order 1 rule 4

4. Arbitration (Section 6 of the Arbitration Act 1995, Rule 2 of the Arbitration Rules, 1997; Section 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya; and all other enabling provisions of law)

5. Examination of debtors property (Under Order XXI Rules 36 and 91 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law.)

6. Contempt of court (Section 5 of the Judicature Act, Cap. 8 Laws of Kenya, Order 52 Rules of the Supreme Court of England 1965, Section 3A of the Civil Procedure Act , cap 21 of the Laws of Kenya)

7. Amendment of defence. (Under Order VIA Rule 3(1( (5) , 5, 7 and 8 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law)

8. Amendment of judgment (Under Sections 3A and 99 of the Civil Procedure Act, Cap 21,of the Laws of Kenya; Order XX Rule 3(3), Order L Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law)

9. Reconstruction of file. (Under Section 3A of the Civil Procedure Act

Temporary Injunctions and Interlocutory Orders(Under Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya and Order XXXIX, Rules 2(1), 3 and 9 of the Civil Procedure Rules)

10. Joinder of an interested party. (Under Order 1 Rule 10 of the Civil Procedure Rules Section 3A of the Civil Procedure Act and All Other Enabling Provisions of law)

11. Temporary injunctions (Under Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya and Order XXXIX, Rules 2(1), 3 and 9 of the Civil Procedure Rules)

Contract Of Service versus Contract For Service

Introduction 

The law makes a distinction between a contract of service and a contract for service. Basically, a contract of service applies to an employee-employer relationship, while a contract for service applies in the case of an independent sub-contractor. This distinction is most important as protection of employment legislation does not apply to independent subcontractors – with the exception of the Safety Health & Welfare At Work Act 2005 and the Equality Act 2004.
The following is a summary of the essential differences between the two sorts of contract.

Contracts Of Service

Employer-Employee relationship.
Usually a continuous relationship.
A duty of care owed to employees, as the employer.
The employer is generally liable for the vicarious acts of employees.
Protective legislation applies to contract.
Wages/Salary payment method.
Subject of contract is to carry on continuous work.

Contracts For Service

Employer-Independent Contractor relationship.
A relationship organised around the completion of a once-off piece of work.
A duty of care, arising from occupiers’ liability.
The employer is generally not liable for the vicarious acts of independent contractors.
In general, protective legislation does not apply, except for the Safety Health and Welfare at Work Act 1989 and the Equality Act.
Various methods of payment, including lump sum per job.
Subject of contract is once-off job.

Sample Opening Statement(s)

Contents: 

1. Sample Opening Statement By Alphonce

2. Sample Opening Statement By Alphonce

Faith Mueni's Opening Statement

 
I am…, and I represent Faith Mueni who is the petitioner. The respondent is AlphonceMuoki, represented by …. This is a request for Faith to be allocated her half of the Machakos farm and for the intended eviction by the respondent to be blocked. I will first discuss the facts we will prove, after which I will review the evidence that will support these facts. We will prove the following facts;

i) That Faith Mueni was legally married to Alphonce and that the marriage was contracted under Kamba customary law; and,

ii) That Faith contributed to the purchase of the 13 acre farm in Machakos (LR No. 9999)

iii) That Faith is legally entitled to an equal share of the farm.

Your Honour, this is a case about a promise broken, a dream ended, a life shattered. My client, Faith Mueni, is a 35 year old mother of 3 children, Sebastian, Stella and Anne. She has been married to the respondent for 13 years, during which time she was a stay-at-home mom. The respondent is the District Education Officer of Machakos District. Here‘s how it all started, 13 years ago. Faith meets the respondent and the two fall in love. They then decide to move in together. At the time, Faith is working as a waiter in a local hotel in Machakos. To formalize their relationship, they contract a marriage under Kamba customary law. 2 years after the marriage and one child later, they buy a 13 acre farm near Katumani Research Institute. Although Faith does not make direct monetary contribution to the purchase of the farm, she takes care of all the family bills in order to allow the respondent to accumulate enough money to pay for the farm. A year after the purchase of the farm, Faith, on the respondent‘s request quits her job as a waiter and relocates to the farm. She diligently works the farm and is able to feed her family without requiring support from the respondent. There is even surplus harvest which is sold by the respondent and the proceeds used to build Faith‘s house on the farm. She later starts a dairy farm which becomes very successful. With her proceeds from the dairy farm, she takes care of all the family bills, including the children‘s school fees, in order to allow the respondent to comfortably pay off the mortgage on the farm. After the respondent finally finishes paying off the mortgage, he refuses to help Faith with the family‘s upkeep. By then, the family has grown by two more children. He suddenly becomes verbally and physically abusive. His usual weekend visits become more infrequent, and finally stop altogether. Later Faith notices some construction taking place on her farm and on making enquiries is told that a house for the respondent‘s new wife is being put up. She then travels to Machakos town to confront the respondent, and finds a woman claiming to be the respondent‘s wife at his house. When the respondent comes home later, he gets so incensed on seeing Faith and orders her out. He even calls her a ―mad woman‖ for saying that she was his wife. Now this same respondent who was helped to his feet by Faith wants this court to help him evict Faith and their children from the only home they have known for the last 13 years. Your Honour, on the point of whether Faith was legally married to the respondent, you will hear the expert evidence of MzeeNyamai, an 85 year old friend of Faith‘s parents who was present during Faith‘s betrothal ceremony. You will see the pictures of Faith‘s parents taken on the day of her betrothal and another picture of the respondent‘s dowry negotiation party. These pictures, as the respondent will admit, were purchased by him and given to MzeeNyamai as a memorial of the ceremony. This demonstrative evidence, along with the testimony of MzeeNyamai, Jomo Obama and Faith herself, will convince this court that Faith was legally married to the respondent.Your Honour, as you will see, the respondent has little time for his family. Initially he would only go home over the weekends, but he has stopped visiting completely. Faith will testify that for almost the whole life of this marriage she was the responsible for the needs of the children, all in an effort to ease the financial burden on the respondent. A selfless sacrifice to which the respondent has attached no value. A review of the pleadings will demonstrate that it is the respondent who wants this marriage (whose existence he denies) to end. As the facts of the case will show, like the dog in the manger, the respondent doesn‘t want Faith as his wife, is unwilling and does not have time to take care of his three children, but does not want his wife to be able to go on with her life, either. How selfish is that? Ask the horse who couldn‘t eat his dinner when the dog wouldn‘t move from the manger. Your Honour, the respondent will contend that he single-handedly bought the farm in Machakos. He will even produce as evidence a Sale agreement which indicates that he is the sole buyer. Further, the seller of the farm will testify that to his knowledge, the respondent was not married to Faith. What the respondent will not tell you is that were it not for Faith‘s contribution in paying for the family‘s upkeep, he would not have bought the farm. Again, the sale agreement will not demonstrate that Faith‘s contribution enabled the respondent to raise the purchase price. The seller, who had not seen or communicated with the respondent in many years, will also not tell you that Faith is married to the respondent, because he can‘t tell. After relying on the respondent‘s promise to live with her till death, and after 13 years of dedication to the respondent, Faith is about to lose it all. For nothing. She and her children are now threatened with eviction from their only home, and are facing a very uncertain future because of the respondent‘s selfishness. This court can come to her aid, and I ask that a permanent injunction be granted to block the respondent from evicting Faith and her children from the farm, and that this court issues orders granting Faith an equal share of the farm in Machakos.

Alphonce Muoki's Opening statement

May it please the court, my name is…, and I represent Mr.AlphonceMuoki who is the respondent. It is our case that the petitioner in this matter, Faith Mueni, does not and has never owned or held the parcel of land identified as L.R. No 9999 Machakos and therefore is ill advised by her counsel in asking this honorable court to making any orders regarding the said parcel of land. We will show the court that;

i) My client AlphonceMuoki was never married to Faith Mueni,

ii) All the contributions towards the purchaser of the 13 acre farm in Machakos (LR No. 9999) were made by my client Alphonce,

iii) Subsequently, Faith is not entitled to any share of the farm.

Your Honour, this court has just listened to a sensational presentation by the petitioner‘s side intended to paint my good client in bad light. It is not disputed that my client knew Faith Mueni; my client admits that they had a brief romantic liaison 13 years ago and got a child. My client not being one to abandon his responsibilities and as a way of making up for his indiscretions, out of the kindness of his heart offered to provide for the petitioner and their baby. It is sad that the kindness shown by my client has been abused to this point that we find ourselves at today. Thirteen years ago, Alphonce was a well-educated man working for the Ministry of Education making strides career wise. He meets Faith who is working as a waiter and they have a brief sexual liaison for ten months. They are blessed with a son and Alphonce is proud enough to give the child his last name, Sebastian Muoki. For whatever reason, the relationship turns sour and the two part ways but Alphonce is responsible and proud enough of his son that he supports them and even makes visits to Faith‘s home to be with him. Six months after their relationship has ended, Faith contacts Alphonce and informs him that she has lost her job as a waiter and is in need of a place to stay. She could rely on my client‘s kindness and sense of responsibility to act. Alphonce has held a relatively enviable job and has made something of himself, having been able to acquire loan facilities from a bank and buy a 13 acre piece of land near Katumani research institute on his own. Alphonce empathizes with the seemingly helpless Faith and agrees to put her up at his farm house even letting her work the land at no profit to himself and never demanding any rents. There is a clear understanding that this arrangement was merely temporary until my client finds a bride and starts his home at the farm. This is all contained in my client‘s sworn statement and he will testify to this.

Your Honour, the petitioner contends that she has been married to my client for 13 years and seeks to rely on the evidence of MzeeNyamai. MzeeNyamai is an 85 year old friend of Faith‘s parents and is in his own words ―the memory of the community‖. With all due respect MzeeNyamai has seen better days. He was 72 years when the alleged traditional marriage ceremony between my client an Faith took place. With ageing comes a lot of degradation physical functional and abilities such as memory and recollection bear the brunt. As ―the memory of the community‖ is it also possible that MzeeNyamai witnessed very many such ceremonies and is getting the participants confused? In his sworn statement he already makes the mistake of stating that Faith has 3 sons when in fact it is a son and 2 daughters. Alphonce is father to the boy and is responsible for him alone. The petitioner also seeks to rely on two photographs as proof of my client‘s alleged marriage to Faith. We admit that the photographs are authentic but they are not dated and the photographer cannot come before this Honourable court. We will kindly be requesting the court to indulge us in the rule requiring documentary evidence to be presented by its author.

Your Honour, counsel for the petitioner has attempted to take the wind out of our sails‘ by pre stating what we intend to rely on in proving that my client bought the 13 acre parcel of land with his own money and without any form of contribution from Faith or anyone else. I am confident that this Honourable court has an eye for justice that will easily see through this smoke screen tactic. I do not wish to fall into their trap by being repetitive so I will just make an extremely short statement. The entire transaction for the land is clearly documented and at no point is Faith a party to the transaction. We will tender as evidence the sale agreement made between Alphonce and Mr. Charles Muema. The petitioner on the other hand seems unable to produce any documentary evidence that support her contention of being a contributor to the purchase of the farm. The complainant employs similar smoke screen tactics of pre stating weaknesses in their case so as to ‗take the wind out of our sails‘ again. Faith mentions in her sworn statement that she tracked her contributions by recording them in a book that was allegedly taken by my good client and has somehow managed to elude finding, how convenient. I trust this court‘s eye for justice. The kind hearted nature of Alphonce has surely been tested over these 13 years, but the straw that broke the camel‘s back was when Faith had the audacity to storm into my client‘s matrimonial home and desecrate its sanctity by peddling hurtful lies to his young bride, almost destroying their union ordained before God. After all evidence is tendered and all witnesses have taken the stand, I request that this court finds for my client, dismissing the petitioner‘s case with costs. We rely on this court‘s eye for justice. Much obliged your Honor.