FACTS

Ewasi Ngozi died on 15 October 2018, intestate, leaving a young family. On 6

January 2019, the wife, Mariamu Ngozi applied for and was granted the Letters of
Administration that named her and her son of 16 years co-administrators. The grant
was later confirmed.

Capitec Finance Ltd. had sued the administrators of the estate of the late Ewasi
Ngozi (deceased) seeking for the payment of an amount of Kshs.11,151,676/-
outstanding from a loan of Kshs.35,550,000 borrowed as an asset development loan.
The suit was filed on 15 April 2019 through a plaint under SPMCC NO. 357 of 2019.
Ewasi Ngozi had taken the loan to build a block of 4, 6 floor flats on the property he
owned at Kaputei, in Kitengela.

When you were served with the plaint, you discovered the plaintiff therein had not
comprehensively addressed the necessary parties to the suit. Draw up the necessary
application to bring the necessary parties under this claim.

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 THE REPUBLIC OF KENYA
IN THE MAGISTRATE’S COURT AT MILIMANI

IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT

MISC. APP. NO. 757 OF 2019

CAPITEC FINANCE LIMITED………………………………… PLAINTIFF/RESPONDENT

-versus-

MAIRIAMU NGOZI…………………………………………………….……………1st DEFENDANT

GIFT NGOZI (A MINOR) BY MARIAMU NGOZI (GUARDIAN AD LITEM)

……………………………………………………………….. 2nd DEFENDANT/APPLICANT

CHAMBER SUMMONS
(Section 3A CAP 21 Laws of Kenya, Order 1, rule 14, Order 32 rule 3(3), of the Civil
Procedure Rules, 2010)

LET ALL PARTIES concerned attend the Honourable Magistrate in Chambers on

the………..day of ……………, 2019 at 9.00 O’clock in the forenoon or soon thereafter
for the hearing of an application by counsel for the Applicant for ORDERS THAT:-

1. This Honourable Court do hereby grant leave and order the appointment of
MARIAMU NGOZI as a guardian ad litem for the defendant minor.

2. This Honourable Court do hereby order for the addition of the guardian ad
litem as a co-defendant representing the minor in the Plaintiff’s suit under
SPMCC NO.357 of 2019.

3. The costs of this application be in the cause.

WHICH APPLICATION is based on the GROUNDS THAT:

a) The confirmed grant of letters of administration dated the 7 March 2019 made
the 2nd Defendant (a minor) a co-administrator of the estate of the late Ewasi
Ngozi (deceased).

b) The 2nd Defendant is therefore a necessary party to the suit of the

Plaintiff/Respondent herein.

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c) The 2nd Defendant being a minor, he can only represent himself in the suit
through a guardian ad litem when he is being sued.

d) It is therefore just and equitable for this Honourable Court to order for the
guardian ad litem to be enjoined as a party representing the 2nd Defendant
minor.

WHICH APPLICATION is supported by the Affidavit of MARIAMU NGOZI on the

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

DATED at NAIROBI this…………day of ………….., 2019.

TSEPO, SENGALANI LLP

ADVOCATES FOR THE DEFEANDANT/APPLICANT

DRAWN & FILED BY:-

TSEPO, SENGALANI LLP

ADVOCATES
8TH FLOOR, TROJAN TOWERS
HENDRIK WITBOOI STREET ADM NO. P.105/164/70
P. O. BOX 1234-00404 PRAC. NO. LSK/1121/2020
NAIROBI tsadvocates@tsllp.co.ke
Office Tel: +254 20 21126785

TO BE SERVED UPON:-

MALUME, KICHANA LLP ADVOCATES

THE VERVE, 1ST FLOOR - Your Ref: (TS/COMM/03/ADMN)
WAIYAKI WAY
NAIROBI

Note-“If any party served does not appear at the time and place above-mentioned
such order will be made and proceedings taken as the court may think just and
expedient”.

3
 THE REPUBLIC OF KENYA
IN THE MAGISTRATE’S COURT AT MILIMANI

IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT

MISC. APP. NO. 757 OF 2019

CAPITEC FINANCE LIMITED………………………………… PLAINTIFF/RESPONDENT

-versus-

MAIRIAMU NGOZI…………………………………………………….……………1st DEFENDANT

GIFT NGOZI (A MINOR) BY MARIAMU NGOZI (GUARDIAN AD LITEM)

………………………………………………………………….. 2nd DEFENDANT/APPLICANT

SUPPORTING AFFIDAVIT

I MARIAMU NGOZI of P. O. Box 1234-00404 Nairobi, in the Republic of Kenya do

hereby make oath and state as follows:

1. That I am an adult person of sound mind, the Applicant herein and therefore
competent to swear this affidavit.

2. THAT on 15/04/2019 the Plaintiff herein filed a suit under SPMCC NO.357 of
2019 against me, applicant herein.

3. THAT by the grant of the letters of administration dated the 7/03/2019, my

son and I were made co-administrators.

4. THAT my son is a minor and can only appear as a party in the Plaintiff’s suit
as represented by a guardian ad litem.

5. THAT I apply herewith to be made my son’s guardian ad litem.

6. THAT being co-administrators, we are both the legal representatives of the

estate of late Ewasi Ngozi (deceased), charged with the discharge of the
estates responsibilities and we both are the beneficiaries thereof. ( Annexed

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 hereto and marked “MN-1” is a true copy of the confirmed grant of letters of
administration)

7. THAT my interests in the deceased’s estate are complimentary to those of my

son’s and therefore I hold no adverse interests against him.

8. THAT I therefore verily believe that I am the best candidate to represent my

son as guardian ad litem as I hold his interests paramount in the discharge of
my responsibility as representing my son in the Plaintiff’s suit.

9. THAT I swear this affidavit praying that this Honourable Court be pleased to
order my appointment as guardian ad litem, to represent my son as co-
defendant in the Plaintiff’s suit

10. THAT save where the information is from a source that is disclosed, what is
deponed herein is true to the best of my knowledge, information and belief.

SWORN by the said )

MARIAMU NGOZI at Nairobi ) ………………………………..
)
This………..day of…………..2019 ) DEPONENT
)
)
BEFORE ME )
)
)
)
)
)
)
COMMISSIONER FOR OATHS )

DRAWN & FILED BY:-

TSEPO, SENGALANI LLP

ADVOCATES
8TH FLOOR, TROJAN TOWERS
HENDRIK WITBOOI STREET
P. O. BOX 1234-00404
NAIROBI

TO BE SERVED UPON:-

MALUME, KICHANA LLP ADVOCATES

THE VERVE, 1ST FLOOR - Your Ref: (TS/COMM/03/ADMN)
WAIYAKI WAY
NAIROBI