REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. OF 2005 (O.S.)

IN THE MATTER OF

AN APPLICATION FOR ORDERS SEEKING

THE DELIVERY OF A CASH ACCOUNT

BETWEEN

JOHN KAHENYA :::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

AND–

1. G. J. KAHUTHU
2. A. M. KAHUTHU
t/a KAHUTHU & KAHUTHU ADVOCATES :::::::::::::::::::::: DEFENDANTS

ORIGINATING SUMMONS

(Under Order LII Rule 4 of the Civil Procedure Rule Section 3A of the Civil Procedure Act and
Section 47 of the Advocates Act and all enabling Provisions of the Law)

LET G. J. KAHUTHU and A. M. KAHUTHU Advocates trading as Kahuthu & Kahuthu

Advocates of Post Office Box Number 1831-00200, Nairobi within the Republic of Kenya attend
the Honourable Judge in Chambers on the day of , 2005 at 9.00
O’clock in the forenoon or soon thereafter on the hearing of an application by counsel for JOHN
KAHENYA the Plaintiff herein for ORDERS.

THAT the Defendants by a date to be fixed by this Honourable Court do deliver up a cash
account of the monies received from ICN Toshiba Limited (Kshs. 25,000/=) on 08-07-05 in
settlement of a claim filed by the Applicant against the said ICN Toshiba Limited vide Nairobi
Milimani RMCC No. 122880 of 2003.

THAT the Defendants do pay the Plaintiff the said sum plus interest at commercial rates as
from the date of receipt until the determination of this application.

THAT in default of payment or delivery of the cash account, the Defendants/Respondents be

ordered to appear before this Honourable court to show cause why he should not be disciplined
under section 56 of the Advocates Act (Cap 16) Laws of Kenya, for being guilty of professional
misconduct.

THAT the Defendants to pay the Plaintiff/Applicant the costs of this application.

WHICH APPLICATION is supported by the Affidavit of JOHN KAHENYA on the

 following grounds and other grounds to be adduced at the hearing hereof:

The Defendant filed suit on behalf of the Plaintiff vide Nairobi Milimani RMCC NO. 122880 of
2003 against ICN Toshiba Limited seeking payment of a debt.

The Defendants received Kshs. 25,000/-from ICN Toshiba Limited in full and final settlement of
the Plaintiff’s claim.

The Defendants have acknowledged receipt of the said monies.

The Plaintiff has yet to receive a cent of the said monies.

DATED at NAIROBI this day of 2005.

ROMBO & COMPANY

ADVOCATES FOR THE PLAINTIFF

THIS SUMMONS WAS DRAWN,

TAKEN OUT AND FILED BY:-
ROMBO & COMPANY,
ADVOCATES
SHANKARDASS HOUSE, NEW WING, 1ST FLOOR,
MOI AVENUE,
P.O BOX 2704 – 00100,
NAIROBI.

TO BE SERVED UPON:-

KAHUTHU & KAHUTHU

ADVOCATES
FOURWAYS TOWERS, 2ND FLOOR
MUINDI MBINGU/ MOKTAR DADDAH STREETS,
P. O. BOX 1831 – 00200
NAIROBI.

“If any party served does not appear at the time and place herein mentioned, such
orders will be made and proceedings taken as the court deems fit”.

REPUBLIC OF KENYA
IN THE MATTER OF

AN APPLICATION FOR ORDERS SEEKING

THE DELIVERY OF A CASH ACCOUNT

 BETWEEN

JOHN KAHENYA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

AND–

1. G. J. KAHUTHU
2. A. M. KAHUTHU
t/a KAHUTHU & KAHUTHU ADVOCATES :::::::::::::::::::::::::::::::::::: DEFENDANTS

SUPPORTING AFFIDAVIT

I, JOHN KAHENYA of Post Office Box Number 50241, Nairobi within the Republic of Kenya do
hereby make oath and state as follows:-

THAT I am the Plaintiff herein and hence competent to swear this Affidavit.

THAT I am well and truly conversant with the contents of the Originating Summons herein as
explained to me by my Advocates.

THAT I was owed some money by ICN Toshiba Limited and I enlisted the Defendants’ services
to file suit against the said ICN Toshiba Limited.

THAT the said firm filed suit NO. 122880 of 2003 at the Magistrate’s Court at Milimani
Commercial Courts, Nairobi.

THAT the matter was eventually concluded and after auctioneers were involved I was awarded
Kshs 25,000/-.

THAT the said sums were paid to the Defendants sometime on 09-07-05 by the auctioneers, a
fact that was duly acknowledged by the defendants, who asked me to come to their offices to
collect the amount of Kshs 17,000/-.

THAT on 13-07-05 I went to collect the said money only to be surprised that the 2nd
Defendant had a prepared a discharge voucher which he had instructed the secretary that I
append my thumbprint, an act I found totally unnecessary and aimed at humiliating me
given that I am literate.

THAT I protested and questioned the strange requirement that I append my thumbprint when I
was able and willing to append my signature, to which the 2nd Defendant instructed the
secretary to declare that they would not release the money to me if I didn’t append the
thumbprint.

THAT I felt very humiliated and offended and despite all my protests to the secretary the 2nd
Defendant refused to see me and I was forced to leave the office without the money.

THAT I was then surprised to receive a letter from the Defendants dated 14-07-05 alleging that
I had refused to execute a receipt, an allegation that is totally untrue. (Annexed hereto and
marked “JK 1” is a true copy of the letter.

THAT what surprised me more was the fact that in the said letter the Defendants now indicated
that the amount due to me was Kshs 10,400/- instead of the Kshs 17,000/- they had promised
to pay me.

THAT I then went to my current advocate’s for advice and instructed them to demand my
money and they then wrote to the Defendants requesting the remittance of the money.
(Annexed hereto and marked “JK 2” is a true copy of the letter).

THAT I was further surprised to be shown a letter from the Defendants now claiming that they
were willing to pay me Kshs 15,000/-, which to me sounded like a blackmail, which I find totally
unjustified.

THAT as things stand now, I have not been paid the money due to me, and the Defendants
have failed to respond or give and indication as to when they will settle.

THAT I further informed my Advocates that the court has powers to order the Defendants to
account for the money they received on my behalf.

THAT I do pray that this Honourable court does order the Defendants to deliver up a cash
account o the money which they received on my behalf and to pay to me what is due to me.

THAT I swear this affidavit in support of the originating summons.

THAT what is deponed to herein is true to the best of my information, knowledge and belief
the sources and particulars whereof, I have stated.

SWORN at NAIROBI by the said )

JOHN KAHENYA ) ……………………………………………
this day )
of , 2005 )
)
BEFORE ME )
)
)
)
)
)
COMMISSIONER FOR OATHS )

DRAWN & FILED BY:

ROMBO & COMPANY,
ADVOCATES
SHANKARDASS HOUSE, NEW WING, 1ST FLOOR,
MOI AVENUE,
P.O BOX 2704 – 00100,
NAIROBI.