COUNCIL OF LEGAL EDUCATION

EXAMINATION FOR ADMISSION

TO THE ROLL OF ADVOCATES

ATP 100: CIVIL LITIGATION

MONDAY 12TH NOVEMBER, 2012

DURATION: 3 HOURS

Instructions to Candidates

(a) Answer question ONE and any other three (3) questions
(b) All questions carry 15 marks each
(c) Marks may be lost for illegibility

PLEASE TURN OVER

1. Professor Well Known wrote and published the fast-selling book entitled Principles and Party
Hoppers. In that book the author writes, among other things that: Mr. Siasa ya Kurukaruka is the
most shameless party hopper, who is available for hire by any party with the least following. A
very sensitive man with an extremely thin skin, Siasa Ya Kurukaruka has read that statement
about him, at page 300 of the book. He is told by his friend Tomlin Wafula that he would never
be associated with him again because of this revelation in the book. Your famous firm of
Limondo, Ndururu & Co. Advocates practising at Serenity Towers, Sixth Floor, Open Street
Nairobi, is approached by Siasa Ya Kurukaruka, and he instructs you to file a suit against the
author, and his publishers, Messrs Muroba Moni Book Co. Ltd, to stop further publication and
damages for ruining his political ambitions by destroying his standing in society, as he is
portrayed as a man of no principles. He expects damages awarded to be not less than
Shs.100,000,000 if not in billions. Prepare a plaint which you will file after you will have received
all the right documents which you require.
(15 marks)

2. a) Karanja Ole Patel walks into your office where you practice as Marie Josse & Co. Advocates
and relates to you a long story which in short is to the effect that his neighbor, Patrick Modise
regularly burns rubbish on his compound and the fumes drift over into Karanja’s compound.
These fumes have become a health hazard to Karanja and his family. He instructs you to take
legal action to stop the emission of these dangerous fumes from Patrick’s premises. You advise
him that you will definitely do something about the issue, including going to court, if need be.
After Karanja leaves your office you start reflecting on the matters which might require further
interview with your client and which are relevant to the decision to go to court.

Give a detailed outline of the various issues to be considered as you undertake to represent
Karanja.
(7 marks)

b) You are a newly appointed Resident Magistrate at the Chief Magistrate’s Courts at Garissa.
That court is overwhelmed by civil claims about camel ownership. One such case has been
fixed for hearing before your court. You are presiding over that case and the parties including
their advocate are present and ready for trial. Set out the procedure for the conduct of the
hearing of that civil case up to the point when you adjourn to consider your judgement upon
conclusion of the hearing.
(8 marks)

3. You are acting for a defendant. Your assistant, a newly admitted advocate, has drafted, filed and
served the following statement of defence:

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 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA, AT MACHAKOS
CIVIL SUIT NO.820 OF 2012

MJOMBA KALI ……………………………………………………………………………… DEFENDANT

VS

MBUNGE KWELI …………………………………………………………………………. DEFENDANT

STATEMENT OF DEFENCE

1.
2.
3.
4.
5. The defendant admits that the defendant was assaulted by the defendant as alleged in paragraph
6 of the plaint, or at all

6. The defendant was enjoying his drink and despite that fact he was sober

a) Seven days later you peruse the defence and discover some errors, including some irrelevant
matters pleaded in the statement of defence. You wish to correct the statement of defence.
Carry out the necessary amendments in readiness for re-filing.
(12 marks)
b) Do you require court’s leave before filing your amended defence? Why?
(3 marks)

4. Hel Creators Ltd, the manufacturer of a helicopter that crashed killing Ali Juma, a businessman,
has paid to Ujenzi Assurance Co. Ltd, the insurer, the sum of Kshs.50 million, to be utilized for
compensation of the deceased’s dependants.

Hearing of this big amount to be paid out through the insurer, Al Haj Juma Saidi, the father of the
deceased, rushes to claim the money from the insurer, threatening to sue them if payment is not
immediately made to him. Three days later, before payment is made, Fatuma Juma, the widow,
who has just recovered from the shock of losing her husband, goes to the insurer to claim the
amount. In fact she is accompanied by her advocate, who lectures the insurer about the legal
rights of the surviving spouse and demands immediate payment of the compensation amount to
her.

In light of these demands, the insurer asks you to advise on the requisite legal process to enable it
to safely make payment of the amount it holds to the appropriate party. Present your legal
opinion accompanied by a draft of the requisite document for initiating the process.
(15 marks)

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5. Johannes Madegwa filed a suit against Ramnik Jakaiti and asked the court to issue summons to
enter appearance for him to go and effect service upon the defendant. After he was informed
that the summons were ready for collection, he has not collected the same for the last six months
as he is away on a business trip.

a) What are the ramifications, if any, of him ignoring the court’s notice?
(3 marks)

b) What would be your answer if indeed he collected the summons and kept them under
lock and key until he returns from his business trip, which will keep him away for two
years?
(3 marks)

c) Supposing he collected the summons for service and the defendants are:

i) Ramnik Jakaiti;
ii) Oil Explorers and Drillers Co. Ltd, (incorporated under the Companies Act, Cap 486,
Laws of Kenya), in which Ramnik holds some shares;
iii) The Ministry of Environment and Natural Resources in the Government of Kenya;

How would he effect service on the above defendants and how would service in either
case be evidenced in the event of a dispute?
(9 marks)

6. a) The District Magistrate’s Court had before it a claim for Kshs.5 million on a contract of Sale
of Land. It has proceeded and decided the matter in favour of the plaintiff against your
client. Your esteemed firm of advocates, Kiplangat, Omolo , Nyakundi & Co. Advocates is
instructed to make a judicial review application for an appropriate order to remedy the
situation.

(i) What order would you apply for?

(1 mark)
(ii) Give a concise description of the requisite process to be followed to obtain the order.
(7 marks)

b) Jan Smut, the decree-holder, has discovered that the judgement debtor owns several pieces
of land of great value. He intends to attach and sell one of those pieces of land in execution
and satisfaction of his decree. You are acting for him in the case in which he got the decree
and he asks you to have recourse to that land as a way of execution.

Set out the procedure you would undertake.

(7 marks)

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