Points to Note:
a) Facts
- Owner: Odhiambo Martin, Land Title Number Kisumu Municipality/2001 wants to sell to Onyino Alston
- You are, Olufwafwa, the advocate acting for both parties and you prepared the agreement for sale. It was duly signed by both parties.
- Alston the purchaser pays 100k of purchase price pending conclusion of transaction
- Time set for conclusion 100 days. After 120 days, you still don’t hear from both parties but Alston comes to your chambers alleging that Odhiambo has refused to facilitate conclusion
- He wants his money back
- You call Odhiambo and he informs you that it is Alston who failed to pay the balance of the purchase price and since it’s not his fault yaani Odhiambo, he is entitled to the 100k
b) Way to approach court
- Appropriate Application = Interpleader application because there is a dispute as to who owns the money. Interpleader applications can be instituted where a parties are claiming on debt, any sum of money or on movable or immovable property, as per section 58 CPA
- Approach the court by way of Originating Summons supported by an affidavit because the parties have not moved to court yet so no claims have been made so far. If claims would have been made then it would be by way of Chamber Summons supported by an affidavit.
- The enabling statutory provisions for this will be Order 37 of the CPR
- Format= Appendix A Form 26 or 27
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KISUMU
CIVIL APPLICATION NO. 2 OF 2001
IN THE MATTER OF: LAND TITLE NUMBER KISUMU/MUNICIPALITY/2001
BETWEEN
OLUFWAFWA JACOB…………………………………………………….. THE PLAINTIFF
AND
ODHIAMBO MARTIN……………………………………………………1ST RESPONDENT
ONYINO ALSTON……………………………………………………….. 2ND RESPONDENT
ORIGINATING SUMMONS
(Under Order 37 Rule 14 Civil Procedure Rules and all other enabling provisions of the law)
Let, ODHIAMBO MARTIN and ONYINO ALSTON the 1st and 2nd Respondent of P.O Box 23356-0900 and P.O Box 445566-0800 respectively, within 14 days after service of summons on them enter appearance to this summons which is issued on the application by the Plaintiff, Olufwafwa Jacob who claims to be in possession of the above property for the determination of the following questions;
1. Who amongst the two defendants is entitled to the property
2. Who amongst the two defendants shall indemnify the plaintiff the costs and charges for maintaining the property.
3. The costs of the application to be borne by the defendants.
WHICH APPLICATION is supported by the annexed affidavit of OLUFWAFWA JACOB, the nature of the case and other reasons to be adduced at the hearing.
DATED at KISUMU this 10th Day of January 2001
THIS SUMMONS was taken out by Abbas and Company Advocates LLP for the above named Plaintiff.
DEPUTY REGISTRAR
CHIEF MAGISTRATE’S COURT AT KISUMU
The Defendants may appear thereto by entering appearance either personally or by an Advocate of the High Court of Kenya, Chief Magistrate’s Court or Registry in which this summons were filed.
NOTE: If either of the defendants does not enter appearance within the time and place above mentioned, such order will be made and proceedings taken as the Court will deem just and expedient.
DRAWN AND FILED BY:
Abbas and Company Advocates LLP
P.O Box 24456-00900
Upper Hill, Nairobi
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KISUMU
CIVIL APPLICATION NO. 2 OF 2001
IN THE MATTER OF: LAND TITLE NUMBER KISUMU/MUNICIPALITY/2001
BETWEEN
OLUFWAFWA JACOB…………………………………………………….. THE PLAINTIFF
AND
ODHIAMBO MARTIN……………………………………………………1ST RESPONDENT
ONYINO ALSTON……………………………………………………….. 2ND RESPONDENT
SUPPORTING AFFIDAVIT
I, OLUFWAFWA JACOB, of Kisumu, P.O BOX 44567-00990, make oath and state the follows:-
1. THAT I am the Advocate acting for the two defendants in the transaction.
2. THAT the two defendants approached me to act as their advocate in the transaction to sell the land in question.
3. THAT I prepared an agreement for sale with a completion date set for 100 days and which was executed by both parties.
4. THAT the Purchaser, Mr Alston, paid the 10% of the purchase price amounting to One Hundred Thousand Kenyan shillings (KSHS.100,000) to me to hold pending the conclusion of the transaction.
5. THAT after 120 days into the transaction, I did not hear from either party.
6. THAT the Purchaser, Mr Alston, came into my chambers wanting the return of the amount paid alleging that the Vendor, Mr Odhiambo has refused to facilitate the completion of the transaction.
7. THAT I informed the Vendor, Mr Odhiambo of the Purchaser’s intent to rescind the agreement and return of his money.
8. THAT Mr Odhiambo informed me that Mr Alston refused to pay the remaining balance and thus should not be given the money in my custody.
9. THAT the Plaintiff is ready to deposit the money in their custody as under paragraph (4) into the court’s account.
10. THAT I swear this affidavit in support of the application seeking to protect the Plaintiff from any action that may be instituted by either party should I release the money to any party.
11. THAT the Plaintiff therefore seeks the Court’s intervention, by this application, to determine which party is eligible to obtain the funds in question and therefore liable for the charges arising from the keeping of the funds.
12. THAT the Plaintiff also seeks determination from the court, as to costs incurred by the Plaintiff arising from this application.
13. THAT what is deponed to hereinabove is true to the best of my knowledge, belief and information.
SWORN by the said OLUFWAFWA JACOB) ……………………… (Deponent)
At Kisumu on this 10th Day of January 2001 )
BEFORE ME
COMMISSIONER FOR OATHS
DRAWN AND FILED BY:
Abbas and Company Advocated LLP
P.O Box 24456-00900
Upper Hill, Nairobi
TO BE SERVED UPON:
1. Odhiambo Martin P.O Box 23356-0900
Kisumu
2. Onyino Alston P.O Box 44566-0800
Kisumu
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