COUNCIL OF LEGAL EDUCATION. EXAMINATION FOR ADMISSION TO THE ROLL OF ADVOCATES. ATP 100: CIVIL LITIGATION THURSDAY OCTOBER 13, 2022. DURATION: 3 HOURS. Instructions to Candidates: F ] {a) This paper contains SIX (6) printed pages including the cover page, with a total of Six questions, {b) Candidates MUST answer FIVE (5) questions. (c) Question ONE is compulsory and carries 20 marks. (d) All other questions carry 10 marks each. (e) Answers MUST be supported by relevant case law and statutory provisions where required. PLEASE TURN OVER Page 1of6QUESTION ONE You are an associate at Magonda and Company Advocates of P.O. Box 6738-00800 Nairobi. Email;magonda@gmail.com, Tel; 020462999. One of the associates in the firm has inétructed you to take instructions from Joseph Ngolu of P.O. Box 39-90100 ‘Machakos. On 16% August 2018, Joseph gave you the foltowing instructions: “in July 1987, Joseph purchased all that parcel of land known as Nairobi Block 17/68 from Samuel Joe of P.O. Box 389-00100 Thika at a purchase price of Kshs, 20,950,000/=. By then, Samuel did not have title to the land but was in possession of a letter of allotment. ‘The total purchase price was deposited with Ndimo & Company Advocates in terms of an agreement dated 26" July 1987. The advocates paid Samuel a sum of Kshs. 15,445,000/= on the same day. The balance of the purchase price was to be released to Samuel upon him procuring the titte and consent to transfer the tand from the Commissioner of Lands within a period of six months from the date of the agreement. Joseph tdok possession immediately upon execution of the agreement, fenced the property and deposited building materials worth Kshs, 5,000,000/= and has since been in occupation. Joseph never got title to the land. Ndimo & Co. Advocates paid the balance of the purchase price to Samuel despite the fact that no consent had been obtained. Joseph followed up the matter and found that a sum of Kshs. 29,000/= being arrears of land rent, had not been paid. Joseph paid the said amount and the Title was prepared and forwarded to Ndimo & Co. Advocates. The advocate prepared a Transfer of the tand but Samuel refused to sign it. on 2 May 1995, Joseph placed a caution on the property to safeguard his interest. Samuel. passed away in May 2000, His wife Lucy Joe obtained a Grant of Letters of Administration in January 2004. She has now threatened to forcefully evict Joseph from the parcel of land.” (a) Write a legal opinion on the steps Joseph needs to take to-have the property transferred to him and the issues you will consider before drafting any pleadings. (B marks) tb) Draft pleadings seeking appropriate retiefs. (15 marks) Page 2of6QUESTION TWO Peter Bowen filed a suit against David Brown in the Environment and Land Court in Nairobi claiming a beneficial interest in all that parcel of land known as L.R. na 87745. Before-filing the-suit, he had conducted a search which revealed that David Brown was the registered ‘proprietor. David filed a defence denying that he was the registered proprietor of the said parcel: of land. Peter conducted another search at the Lands Registry which reveated that the earlier search he obtained had a. typographical error ‘in. that the property was described as L.R no 87745 ‘instead of L.R no 87754. Upon inquiring from the Land Registrar why there was a discrepancy in the two searches, the Registrar confirmed that the eartier search had a mistake because of misfiling of the green cards. The new search also revealed that all that parcel of land known as L.R no. 87754 is registered in the name of David Brown and Jane Brown. Peter has filed an application seeking to amend his plaint to reflect the correct position. His application is based on the ground that the search he had obtained earlier made him believe that the correct property was'L-R no 87745 which was registered in the name of David Brown, but after being served with the defence, he did another search which revealed that the correct number was L.R no 87754 and the land was registered in the name of David Brown and Jane Brown. David has opposed the application on the ground that the application is as an abuse of the process of the court and that Peter has never occupied the suit land. He stated that. Peter is a land grabber wha has filed many cases claiming adverse possession, hence his application should be disaliowed. You are a research assistant attached to a Judge sitting at the Environment and Land Court and the judge has asked you to come up with a draft judgement. Draft the ruling and give reasons for your decision. (tOmarks) QUESTION THREE Cleaver and Company Advocates has two partners, John Cleaver and Peter Williams. ‘The firm acted for Liz Jones of P.O, Box 1103 - 00200 Nairobt in Nairobi HCCC 801 of 2007. In January 2009, John Cleaver was employed by Zidco Company Limited as an in- house lawyer and stopped taking out practicing certificates but never resigned from the partnership. In 2010, Peter Williams established another firm in which he practices in the name and style of Wiltiams and Company Advocates The suit was coneluded:and the firm of Cleaver and Company Advocates filed an advocate-client billof costs after a disagreement on fees payable. The applicant in that bill described himself as Peter Williams T/A Cleaver and Company Advocates. Upon Page 30f 6being served with the bill, Liz filed a preliminary objection challenging the competence of the firm of Cleaver and Company Advocates to maintain the taxation. On 26" Jurie 2022, the taxing master heard the objection, dismissed it and proceeded to tax the bill in the sum of Kshs. 350,000/=. On 10" July 2022, Liz approached you and informed you that she was dissatisfied with the decision of the taxing master. (a) Advise Liz on the steps she must take to challenge that decision. (5 marks) (b) Draw appropriate’ pleadings challenging the decision. (5 marks) QUESTION FOUR ‘Maurice Williamson of P.O. Box 95657-00200 Nairobi and 17 others were employed by Carate Limited of P.O Box 28877-00100, a government parastatal, in various capacities. ‘The initial employment was on casual terms for diverse periods, of two or three months. in 2008, upon lapsing of the term the 18 workers continued in the employment of the company without any interruption. The workers were members of the National Social Security Fund aé petmanent staff and the company made deductions from their pay and remitted the contributions'to the Fund on their behalf. ‘The Company required the workers, who had acquired permanent status, to convert their status to casual status by demanding that they sign letters of employment on casual terms of service. In September, 2022 after long periods of non-payment, the Compaiy offered to pay the workers part of their unpaid salaries as full and final payment up to the date of the payment. Upon acknowledging the payment, the Company would offer the workers contracts converting their employment status from permanent to casual. The conversion would be subject to the following conditions: that the conversion would be for an unspecified period not exceeding three months from the date of commencement; the wages would be determined at a daily rate; the workers would perform the assigned duties to the satisfaction of the company, failing which their services would be terminated; the workers would not have any other claims against the company apart from-wages and that the employment on casual basis did not guarantee confirmation to employment on permanent. basis. The workers, who considered themseives permanent employees, rejected the conversion of their employment contracts. The Company involved Police Officers to force the workers to sign and accept the conversion contracts or get evicted from the houses provided by the company. Subsequently, the Company locked out the workers from 1.10.2022. Page 40f 6“The workers contend that their rights protected by Articles 10, 41, and 232 of the Constitution have been violated and are keen in seeking legat redress against the said violation. You have recently registered.a firm trading as Pebo and Pepo Associates, Uajiri House, 5t Floor P.O Box 759767-00200 Nairobi Tel: +254 0204654777 Email: peboassaciates@gmail.com. The workers have given you the above facts and requested you to advise them if they have'a vatid claim and its chances of success. Proceed. (10 marks) QUESTION FIVE On 17" June 2022, the Employment and Labour Relations Court awarded Jane Marsi a suin “of Kshs. 1,974,531/= against Tapso PLC. On 30° June 2022, her advocates presented a decree to court without notice to the respondent's advocates. The Deputy Registrar of the Court signed the decree as dravm since it was in agreement with the judgement. On 20" July 2022, her advocates having received the signed and sealed decree applied for execution without ascertaining the costs payable to her. The warrants of attachment and sale were issued to Chota Auctioneers who attached the respondent’s properties on 30" July 2022. On-5t* August 2022, the respondent’s advocates filed an application under certificate of urgency seeking stay of execution of the decree and review of the judgement and decree. The respondents relied on the grounds that they were not. given any notice before the decree was extracted and that they have discovered that the claimant had been advanced a loan while she was an employee of the respondent and an amount of Kshs, 356,200/= was still outstanding among other grounds. The application was placed before the judge whe declined to grant any interim orders but certified it as urgent and directed that it be served forthwith for hearing Inter Partes on 20 August 2022. The respondent is dissatisfied with the services of its advocates and has approached your law firm ta take over the conduct of the matter and to prosecute the application. However, before the respondent formally instructs you, it requires a legal opinion on the issues raised in the application. Write a legal opinion on the legal issues raised and the merits or otherwise of the application. (10 marks) Page Sof 6“ QUESTION Six. In 1980, Peter Happiness was registered as. the absolute proprietor of all that parcel of land known as Kajiado Block 4/30120. John Hopkin instituted LDT Case No. 20 of 2008 at the Kajiado Land Disputes Tribunal claiming ownership of the said parcel of land. On 27 Novernber 2009, the decision of the Kajiado Land Dispute Tribunal in LDT Case No. 20. of. 2008 which was read-on 18" March 2009 was adopted as a judgment of the court in Kajiado Chief Magistrate Court Misc Civil Application No. 45 of 2009 and a decree was issued, In May 2010, John wrote to Peter and enclosed transfer forms which he requested Peter to sign in default of which he would make an application seeking to have an officer of the court to:sign on his behalf. Peter did not sign the forms, instead, having been granted leave on 15" July 2010, he filed an application in'the High Court at Kajiado on 19" July 2010 seeking an order of certiorari to remove into this court for purposes of quashing the proceedings and ‘decision of the Kajiado Land Dispute Tribunal in LDT Case No. 20 of 2008 read on 18" March 2009 and adopted as a judgement of the Court on 27" November 2009 in Kajiado Chief Magistrate Court Misc Civil Application No. 45 of 2009. ‘The grounds th support of the application are that the Tribunal exceeded its jurisdiction in ordering Peter to transfer the suit property to John and that there was no decision capable of being adopted by the Court. The application is opposed on the grounds that the ex-parfe applicant submitted himself to the jurisdiction of the Tribunal and never raised any objection; that leave to comrence these proceedings was obtained outside’ the statutory period; and that the claim before the Tribunat was that of working and occupying land. You have been instructed by the ex-parte applicant to act for him. With the aid of decided casés and statutory provisions, prepare submissions on the orders sought and the legal issues raised that will be used to argue the application. (10 marks) Page 6of 6.HIGHEST SCORED411061 ° COUNCIL OF LEGAL EDUCATION EXAMINATION FOR ADMISSION TO THE ROLL OF ADVOCATES SUBJECT/UNIT «. i] unit cove: [ATT] P] [10 CIR WTLGATION 2ttoctoger 2ca2 REGISTRATION NUMBE DATE: INSTRUCTIONS TO LaNvIvAIES |. Enter the Unit code, Subject of the Examination, Admission Number and Date in the spaces provided. The admission number should be as it appears on the Examination Card, 2. Do not write your name anywhere in this booklet. 3. Attempt each question on a fresh page of the booklet. 4. If an additional booklet is used, it MUST be fastened at the END of this booklet. 5. Insert in the column headed ‘Question Number’ the numbers of questions answered in the order in which you have attempted them, 6. Kindly ensure your handwriting is LEGIBLE. ‘Moderator Quality Assurer’ Initials Wark Mark initials CLEIEXAMSREGISTRATION NUMBER Write on both sides of the paper Questions wn. MAGONbA € Co Adwrates (-0 Box 6438-0000 Emacs magore! mal cour tel. 020462444 Chr op Your ven! Dale Pagal lo; Joseph H Gow Po BOX 3q-4GO10D MACHT A KOS Dear siti RE, LEGAL OPINION ON STEPS TAKEN To HAVE THE PROPERTY KNOWN AS NAROBI Bhock Glee ab — RANSFARED Totou * he alrove refers — Kindly Find obRihed our legal opinion on necessary debe taken to cecouer the alcove wmecdhio wach Deb perht- Thus is Sulejecl fo cur culvecabe—cleet onethng on (64 August ,20t8 - Bret FACTS; In July (48% your puyelrerced He parcel opland cuore, as Nairobi Hole iateg qpom erg Samual Jee pov a purdrast pre o kshs- 20,450,000 The purchase Prig was doposid web Hhe-firva of Ndimo $00 -Advocales- Wawel Joe the werdor was to proce tite. to tbe peoperht as he cerily hacl a: lebher or allolwued and alco get fhe conseed—fo-trenster the lard-prome Hie Grn issiovpr! Lands when a pened ob B mouths we he lal } the adil tool inawmediale a a aes iA (and Where you have so few Trawerd G®.. Donorwnitein| Questions wn citer margin Write on both sides of the paper number of expenses” Tssues e find tbe following [Scuos to be enitoad carat need legal clubors ‘fo onable Uou Ve cover yous latrd by geting he file docuwieetts « Whetber Ho iakeuded” cack is worn The vequacite | a of Gur for band welleg ? ahs A) DMthettaw He fiw of Bei (0 Advecales cuakecl an — et — aéeeeil as aoa Spl tho dl fe by Tena Be Teelecince et ne ase pate ‘Coutians fo +8 aq recemout 2 Nhetlor you ave fo vecover fucker Qeponces (incur onthe ke which ovght fo have eon dacuee by the vendor v i) Wir Ponape foi fussy Joe has a Mega Ghai { er chanes ef Success Cncace che pase ! wet ov ectchoc — wD a you have a Seed] achon again FEE) Samuel x Duk oe Tuts meckber 2 a Whefer you can Sue huey on behalf opt ck: Ruve OF LALO (the Cul Poudue Ad v) aE Sieh ie natalensis Adioas Kae a : Se ee~ ® The Canvonmend & Lud Coat Ak = HA) the Couchhchorr ef Kenya 2010 * REGISTRATION’ sc ene i f Write on both sides of the paper Questions (¢ - ANARYSIS OF THE FACTS AND (SSUES: scuo a the hintehon of ae Rel gives a_(Qyearg) uw Buleve Couleecl alt, Sisal ou Ty | (9¢#To ite, how Fhe Fin dor he fe acho is fo ren we will look cele cowtract= aed wen bxcdhy tho Brexch —_ satel coudraot Foal plac « L Before Ganiuel died a bates feanspor fe you and on 204 Ue Ta yi Jaced a canton: That | “calle Be t (ag les “esse sda fo NM aveund g 208 cody ists oe appocroely 28ya asl 6 ene etna Be sue fo vecover the land has lapsed Tap oo Selale op Tutcfethorss ef Achons Ack (We wil have Fila pe slay pelensorr of fue workin olesh i — mie cout ar cca le, yt tt ha cas ceed a nthe lace fel . g: the of Haine F0- ae aokd ty —- ee fductan duly as an cdvecale Ly full aes eth dou can laler dat ate Sueby o¢ Renyactr| (ok[ccug 3: For the exdea expence seu aces quale «He hand ike the kshe «24 .000[= and et get the celevewd- ceooips to tee as “eal dowioe?" | ies oe — no Chaneas ef accecding wdG ! | fa ek are OC prercherser | “ thas these a Tord a velod og lt [osu 5 | [aston have alopes Gawd ond aval conn acho as Cele above mr tue P° T Thes, Stet od Tete eT wd pel ot Tp fk e weal necel te ys oa | [eee Fe Tracey eel be Suack taste — t I CONCLUStON § pas valid — of, aber i ey fl a on fo Pde Fase tag Ale it tat then fou can promed acd tush A eeorvens Clan Stgauns eckale @ G ithe Pagal arta sets ee Z and Kade fo bo revived feet ON so it agp a CO Pdcoedty ‘|REGISTRATION 2g Write on both sides of the paper Creations atl b) AT NALQO BI CASE RO PAINT TRS Tevck” a. fhe —— & an adutt mele ef Cound wana whose tess Of Coowre for purposes or PO BX 623B-coseo NALCO Bl: Grice? 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Write on both sides of the paper how ee “ad tae as Heregslect rae po heey Quen - Tec a steed a oe Eee aa a os — mode gute saseee wads. Combe solic a ah | fa. tral that apa be, Th ford lapels sit ae ceabt f8 Fender Uh | avrdence! PRC esen eeu pa State reraic og aes Sele | pons cen prec j path et dilate ogee Toy | ancl rere —- ctedotal D8 pains ae ells = =i —- Gus ag Pra s Es cHLEAST SCOREDunit cope: [A [TT PI\ [alo] SUBJECT/UNIT REGISTRATION NUMBER: COUNCIL OF LEGAL EDUCATION EXAMINATION FOR ADMISSION TO THE ROLL OF ADVOCATES INSTRUCTIONS TO CANDIDATES 1. oe Enter the Unit code, Subject of the Examination, Admission Number and Date in the spaces provided. The admission number should be as it appears on the Examination Card. Do not write your name anywhere in this booklet, ‘Attempt each question on a fresh page of the booklet. If an additional booklet is used, it MUST be fastened at the END of this booklet. Insert in the column headed ‘Question Number’ the numbers of questions answered in the order in which you have attempted them. Kindly ensure your handwriting is LEGIBLE. CLEVEXAMSREGISTRATION NUMBER: Write on both sides of the paper Questions .. Do nat wnt 2 either margin 1 ae ee 3 ae avers Ken Cress‘Do soe writin bee Write on both sides of the paper | Questions...~ REGISTRATION NUMBER: Weite on both sides of the paper Questions either marginWrite on both sides of the paperREGISTRATION NUMBER: Do not wit in citer margin Write on both sides of the paper Questions ..