REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT KITALE

CIVIL SUIT NO. OF 2023

LORNA N. SIMIYU….…………….….……………………………..……………………
PLAINTIFF
-VERSUS -

ROSE N. MULATI………………..…….….…….……………..............………………
DEFENDANT

PLAINT (FAST TRACK)

1. The Plaintiff is an adult female of sound mind residing at Tawai Farm and her address
of service shall be care of M/s Walter Wanyonyi and Co. Advocates, Park View
Towers, 1st Floor, Room 1, Opposite Kitale Law Courts, P.O. Box 707 - 30200, Kitale,
Email: waltwanyonyi@yahoo.com, Tel: 0721438607.

2. The Defendant is a female adult of sound mind residing at Big Tree and Service of
summons upon him shall be effected through the Plaintiff’s Advocates office.

3. The Plaintiff and the Defendant are co-wives by virtue of their marriage to one
Abraham Richard Eyauma.

4. The Plaintiff herein was married to the Deceased in the capacity as the 1 st wife in 1984
which marriage was celebrated under Luhya (Abanyore sub-tribe) Customary Law,
its dictates and practice which marriage is blessed with three (3) children namely;

i. Rawlings Eyauma Malanda born in 1985

ii. Abby Ruth Atieno born in 1986
iii. Angela Faith Afandi born in 1989.

5. The Deceased then a Spinster and newly employed as a Primary School Teacher and
did settle the Plaintiff and her children at Tawai Farm, Kiungani Area.

6. In 1986, the Deceased entered into a relationship with the Defendant and
subsequently took her as the 2nd wife and did settle her at Big Tree where she and the
Deceased sired ten (10) issues.

7. In 2013, the Deceased was suffering from various ailments including Blood Pressure,
suffered a stroke and was paralysed to an extent of affecting his usual Health and
Mental capacity.

8. It was the agreed that both the Plaintiff and the Defendant would Co-Manage the
Deceased in terms of all his needs including home care.

9. Despite the said arrangement, the Defendant would at times restrict access of the
Plaintiff to the Deceased but nevertheless the Plaintiff through her spirited efforts
managed to gain access.

10. During the period, the Plaintiff had access to the Deceased she learned that the
Defendant and her children had treated the Deceased with cruelty and without any
decorum.
 11. During the latter part of 2023, the Plaintiff discovered that the Defendant had
abandoned the Plaintiff and moved elsewhere but came back later.

12. On the morning of 13/11/2023, the Plaintiff learnt through her first-born son that the
Deceased had passed on at Kilifi Mavueni where the Defendant had secretly taken
him for divine prayers.

13. Subsequently arrangements were made to transfer the body to St. Judes Mortuary,
Kiminini Cottage Hospital until burial arrangements are done.

14. On 19/11/2023, the Clan convened a meeting where all family members were
presented and burial date was settled on 2/12/2023 at the 1 st Wife’s home to which all
parties agreed.

15. Later on the Plaintiff learnt that the Defendant had convened another meeting with
unknown elements whereby they resolved to secretly remove the body for burial on
28/11/2023.

16. The Plaintiff avers that she is legally entitled to bury the body of her late husband at
Tawai, Kiungani.

17. The Plaintiff avers that there is no suit pending or previous proceedings over the
subject matter herein.

18. Demand has been made and notice to sue duly issued.

19. The cause of action arose within the jurisdiction of this Honourable court.

REASONS WHEREFORE the Plaintiff prays for judgment against the Defendant for:

a. A declaration that the Plaintiff being the 1st wife is entitled to collect and bury the
remains of her Deceased husband at Tawai Farm, in accordance with Luhyia
(Abanyore) Customs and the Defendant and her children be allowed to participate.

b. A Permanent Injunction restraining the Defendant by herself, her agents, servants,

employees or anyone acting on her behalf or otherwise, restraining her from
presenting herself at the mortuary, collecting the body of the Deceased, transferring,
transporting for burial or further preservation advertising or pronouncing statements
in respect of burial arrangements or rites, conducting a Church or funeral services,
burying the remains of the Deceased in any other place other than the 1st wife’s home.

c. Costs.

d. Interest.

e. Any other relief the Court shall deem fit.

DATED at KITALE this................................day

of .....................................................................2023

M/S WALTER WANYONYI & CO.

 ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY:
WALTER WANYONYI & CO. ADVOCATES
VIEW PARK TOWERS, 1ST FLOOR, RM NO.1
OPPOSITE KITALE LAW COURTS
P O BOX 707-30200
KITALE
OUR REF: WW/PO/937/23(264)
Email:waltwanyonyi@yahoo.com
P. NO.LSK /2023/11412, Adm. NO:P105/2878/95
Tell: 0721438607/0734438607

TO BE SERVED UPON;-
ROSE N. MULATI
BIG TREE
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KITALE
CIVIL SUIT NO. OF 2023

LORNA N. SIMIYU….…………….….……………………………..……………………
PLAINTIFF

-VERSUS -

ROSE N. MULATI………………..…….….…….……………..............………………
DEFENDANT

VERIFYING AFFIDAVIT

I, LORNA N. SIMIYU of P.O.Box 707-30200, KITALE do hereby make oath and swears as
follows:-

1. THAT I am the Plaintiff herein hence able and competent to swear this affidavit.

2. THAT I have instructed M/S WALTER WANYONYI & CO. ADVOCATES, to bring
this suit on my behalf by way of a plaint.

3. THAT I have read all the 15 (Fifteen) Paragraph Plaint herein and now verify that the
contents therein are correct and represent my true claim against the Defendant herein.

4. All that is sworn to herein is true to the best of my knowledge, information and belief.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KITALE
CIVIL SUIT NO. OF 2023

LORNA N. SIMIYU….…………….….……………………………..……………………
PLAINTIFF

-VERSUS –

ROSE N. MULATI………………..…….….…….……………..............………………
DEFENDANT

LIST OF DOCUMENTS

1. Minutes dated ……………………..

2. Chief’s letter dated 22/11/2023.
3. Any other with leave of court.

DATED at KITALE this................................day of ....................................................... 2023.

M/S WALTER WANYONYI & CO.

ADVOCATES FOR THE PLAINTIFF

DRAWN AND FILED BY:

WALTER WANYONYI & CO. ADVOCATES
VIEW PARK TOWERS, 1ST FLOOR, RM NO.1
OPPOSITE KITALE LAW COURTS
P O BOX 707-30200
KITALE
OUR REF: WW/PO/937/23(264)
Email:waltwanyonyi@yahoo.com
P. NO.LSK /2023/11412, Adm. NO:P105/2878/95
Tell: 0721438607/0734438607

TO BE SERVED UPON;-
DAVID GEOFFREY MALEMA
KIMININI SCHEME
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KITALE
CIVIL SUIT NO. OF 2023

LORNA N. SIMIYU….…………….….……………………………..……………………
PLAINTIFF

-VERSUS –

ROSE N. MULATI………………..…….….…….……………..............………………
DEFENDANT

LIST OF WITNESSES

1. Lorna N. Simiyu

2. Rawlings Eyauma Malanda

3. Any other with leave of the Court.

DATED at KITALE this................................day of .................................................... 2023.

M/S WALTER WANYONYI & CO.

ADVOCATES FOR THE PLAINTIFF

DRAWN AND FILED BY:

WALTER WANYONYI & CO. ADVOCATES
VIEW PARK TOWERS, 1ST FLOOR, RM NO.1
OPPOSITE KITALE LAW COURTS
P O BOX 707-30200
KITALE
OUR REF: WW/PO/937/23(264)
Email:waltwanyonyi@yahoo.com
P. NO.LSK /2023/11412, Adm. NO:P105/2878/95
Tell: 0721438607/0734438607

TO BE SERVED UPON;-
DAVID GEOFFREY MALEMA
KIMININI SCHEME
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KITALE
CIVIL SUIT NO. OF 2023

LORNA N. SIMIYU….…………….….……………………………..……………………
PLAINTIFF
-VERSUS -

ROSE N. MULATI………………..…….….…….……………..............………………
DEFENDANT

WITNESS STATEMENT OF LORNA . N. SIMIYU

- I am a resident of Tawai Farm, Kiungani.

- We were given temporary one (1) Acre.
- We have built a semi-permanent structure in 2012.
- I have been staying with the Deceased since 1984.
- We came from Chepchoina. We then moved to Nyabom Farm.
- The Deceased was a Primary School teacher employed by TSC.
- I have three children with him names;
- Rawlings Eyauma Malanda born in 1985
- Abby Ruth Atieno born in 1986
- Angela Faith Afandi born in 1989.
- He had another family.
- Rose N. Mulati married in 1986 with 10 children.
- He purchased land at Big Tree farm Ex-Wabuge 1.2 Acres.
- He used to stay with both of us.
- He fell sick in 2013, he suffered a permanent stroke.
- He has been under treatment.
- He could carry a small load.
- He died in Kilifi at Pastor Ezekiel.
- My Co-wife took
- I pray that he be restrained.

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KITALE
CIVIL SUIT NO. OF 2023
LORNA N. SIMIYU….…………….….……………………………..……………………
PLAINTIFF
-VERSUS -

ROSE N. MULATI………………..…….….…….……………..............………………
DEFENDANT

WITNESS STATEMENT OF JANE OTANGA OSORE

- I am a beneficiary of the Estate of the late Amos Otanga Makokha.

- I am entitled to 2 Acres.

- The Defendant is a grandson whose father is my brother.

- The father had separated with the mother but we took him and brought him up.

- The father died when he was above 20 years but never supported them.

- We still valued him as one of our own.

- My brother Peter Osore entrusted him with his portion of land and I also allowed him to
take care of my land and since most of the time we were busy in Nairobi.

- We learnt that he had leased the land to a stranger who is unknown to us.

- He planted sugar cane without permission from my brother.

- We also witnessed a strange house being built thereon.

- The titling process is still underway and since the Defendant is a grandchild, he should
claim his own share from the step mother Beatrice who was allocated 9 Acres.

- That is all.

Summons to Enter Appearance CIVIL 1B

0.5 r 2 (1)
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KITALE
CIVIL SUIT NO. OF 2023

LORNA N. SIMIYU….…………….….……………………………..……………………
PLAINTIFF
-VERSUS -

ROSE N. MULATI………………..…….….…….……………..............………………
DEFENDANT

TO;
ROSE N. MULATI
SERVICE THROUGH ADVOCATE
(WALTER WANYONYI & CO. ADVOCATES)

WHEREAS the above-named Plaintiff has instituted a suit against you upon the claim you upon
the claim, the particulars of which are set out on the copy plaint with annexure attached hereto.
YOU ARE HEREBY REQUIRED within 15 days from the date of service hereof to enter an
appearance in the said suit.
Should you fail to enter an appearance within the time mentioned above, the plaintiff may
proceed with the suit and judgment may be given in your absence.
Given and issued under my hand and the seal of the court this ………….……day of ……….
……………..2023.

………………………………………………………….
Magistrate/ Executive Officer
Or, officer appointed o 5 rule 1(2)

IMPORTANT NOTICE
(1) You may appear in this suit by entering an appearance either personally, or by duly appointed
advocate at KITALE. Appearance can be entered by filing with the court memo of appearance (forms
are obtained from court at 30 cents each) in duplicates, showing the defendants address for service. A
copy of memo. Of appearance should also be sent to the plaintiff or his advocate,
WALTER WANYONYI & CO. ADVOCATES, PARKVIEW TOWERS, 1ST FLOOR, RM 1&8, P.O
BOX 707-30200 KITALE.

You may enter an appearance through the post by sending the following to the …………CHIEF
MAGISTRATE’S COURT ……..Magistrate (civil), P.O. Box 641,KITALE
i. Memorandum of appearance and a copy
ii. Notice of appearance and a copy
iii. Two envelopes each sufficiently stamped; one addressed to the plaintiff or his advocate at the
address for service and the other addressed to yourself.
(2) If you admit the claim the total sum now due is;
Sum claimed in plaint…………………………………………..…..…Shs
Advocates costs ………………………………………………..….Shs
Court fees ………………………………..……….……………Shs PER PLAINT
Court collection fee ………………………………..………………….Shs.
TOTAL……………………………………………………………………..…SHS.
(3) If payment is made direct to the plaintiff no court collection fee is payable cheques cannot be
accepted.
Remittances must be by coin, bank notes or postal order.
(4) This summons is valid for 12 month from the date of issues.
[P. T.O]
I have received copies of the summons and the plaint of this
……………………………………..day of...........................at ………………………………o´clock

………………………………………………..
Signature of Recipient

AFFIDAVIT OF SERVICE
I,
……………………………………………………………………………………………………………
…..a process server of this court make oath/ affirm and say as follows:

The said
defendant……………………………………………………………………………………….was at
the time personally known to me , and I served summons on him, / her on the
………………………………..day of ………………………..20……………at about
………………….o’clock in the ……………………………noon at …………………………………
by tendering a copy therefore to him/ her and requiring his / her signature on the principal.

………………………………………….
Deponent

Sworn / affirmed by the said

………………………………………………………………………………………………at
……………………….this ……………………………….day of
………………………………………………………………, 2023

Before me

……………………………………………………………………………..
Magistrate

Note- if substituted service has been ordered state fully and exactly the manner in which the
Process was served with special reference to the terms of any order for substituted services.
-------------
GPK (L)

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KITALE
 CIVIL SUIT NO. OF 2023

LORNA N. SIMIYU….…………….……………..………………..……PLAINTIFF/APPLICANT

-VERSUS –

ROSE N.
MULATI………………..…….….…….…………………DEFENDANT/RESPONDENT

CERTIFICATE OF URGENCY

I, JOHN WALTER WANYONYI, ADVOCATE care of P.O BOX 707-30200, KITALE DO

hereby certify this application to be of utmost urgency reason that the Defendant is
planning bury the body of the Late Abraham Richard Eyauma forcefully on a portion of
land which the Defendant/Respondent has set aside for her own use and has refused to
bury on a portion that the Plaintiff/Applicant has given to them for the burial and
settlement

If the burial proceeds the Plaintiff/Applicant, who is a senior citizen shall, suffer irreparable
loss and damage.

DATED at KITALE this …………………….day of …………………………………………..2023.

M/SWALTER WANYONYI & CO.

ADVOCATES FOR THE PLAINTIFF/APPLICANT

DRAWN AND FILED BY:

WALTER WANYONYI & CO. ADVOCATES
VIEW PARK TOWERS, 1ST FLOOR, RM NO.1
OPPOSITE KITALE LAW COURTS
P O BOX 707-30200
KITALE
OUR REF: WW/PO/937/23(264)
Email:waltwanyonyi@yahoo.com
P. NO.LSK /2023/11412, Adm. NO:P105/2878/95
Tell: 0721438607/0734438607

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KITALE
CIVIL SUIT NO. OF 2023
LORNA N. SIMIYU….…………….….……………………………..……………………
PLAINTIFF
-VERSUS -

ROSE N. MULATI………………..…….….…….……………..............………………
DEFENDANT

NOTICE OF MOTION
(Pursuant to order 40 Rules 1, 2 and 3 and Order 51 Rule 1 of the Civil Procedure Rules
and Section 1A,2A ,3A and 63(e ) of the Civil Procedure Rules and all enabling
provisions of law)

TAKE NOTICE that this Honourable court shall be moved on the.………………. day of
……………………………2023 at 9:00 O’clock in the fore noon or soon thereafter as counsel
for applicant may be heard in an application for ORDERS THAT: -

1. This application be certified as of utmost urgency and service be dispensed with at the
first instance.

2. There be a temporary order of injunction against the Defendant/Respondent,

whether by herself, her servants, agents or otherwise from Presenting themselves at
St Judes Kiminini Cottage Hospital as the next of Kin, collecting the body of the
Deceased, transporting the body therefrom to any other place for burial, conducting a
burial or church Service or any other manner laying claim to or the burying of the
remains of the ABRAHAM RICHARD EYAUMA at Big Tree within Tran-Nzoia
County pending the hearing interparties and thereafter pending determination of
this application.

3. There be a temporary order of injunction against the Defendant/Respondent,

whether by herself, her servants, agents or otherwise from Presenting themselves at
St Judes Kiminini Cottage Hospital as the next of Kin, collecting the body of the
Deceased, transporting the body therefrom to any other place for burial, conducting a
burial or church Service or any other manner laying claim to or the burying of the
remains of the ABRAHAM RICHARD EYAUMA at Big Tree within Tran-Nzoia
County pending the hearing and determination of the suit herein.

4. The OCS Kiminini Police Station do ensure compliance with above orders.

5. Costs of the application be awarded to the Plaintiff.

ON THE GROUNDS THAT; -

i. The Plaintiff is the 1st wife to the Deceased while the Defendant is the 2nd wife.
ii. The Deceased passed away on 17/11/2023 while at Mombasa and the body was
brought to Kiminini for preservation.
b) The family have sat and agreed on place of burial.
c) The Defendant is now acting to the contrary.
d) This Honourable court is seized with unfettered discretion to grant the orders
sought based on the disclosure made.

WHICH APPLICATION is supported by the annexed affidavit of LORNA N. SIMIYU and

any other further grounds to be adduced at the hearing hereof.
DATED at KITALE this …………………. day of
……………………………………………...2023.

M/S WALTER WANYONYI & CO.

ADVOCATES FOR THE PLAINTIFF/APPLICANT

DRAWN AND FILED BY:

WALTER WANYONYI & CO. ADVOCATES
VIEW PARK TOWERS, 1ST FLOOR, RM NO.1
OPPOSITE KITALE LAW COURTS
P O BOX 707-30200
KITALE
OUR REF: WW/PO/937/23(264)
Email:waltwanyonyi@yahoo.com
P. NO.LSK /2023/11412, Adm. NO:P105/2878/95
Tell: 0721438607/0734438607

TO BE SERVED UPON;-
DAVID GEOFFREY MALEMA
KIMININI SCHEME

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KITALE
 CIVIL SUIT NO. OF 2023

LORNA N. SIMIYU….…………….….……………………………..……………………
PLAINTIFF
-VERSUS -

ROSE N. MULATI………………..…….….…….……………..............………………
DEFENDANT

SUPPORTING AFFIDAVIT

I, LORNA N. SIMIYU of care of Tawai Farm, Kiungani, Telephone number 0712 213 647
do hereby solemnly make oath and state as follow: -

1. THAT I am an adult female of sound mind and the Plaintiff/Applicant herein and
competent to swear this affidavit.

2. THAT I am the 1st wife to the Deceased, one Abraham Richard Eyauma.

3. THAT the Defendant is my Co-Wife and resides at Big Tree.

4. THAT the Deceased died mysteriously in the hands of the Defendant after she had
secretly taken him to Mavueni, Kilifi for divine prayers.

5. THAT the body was transferred to St. Jude Kiminini Cottage for preservation.

6. THAT on 19/11/2023, the family and the Clan met and agreed that I being the elder wife
be allowed to bury the Deceased at Tawai in accordance with Abanyore Customs.
(Annexed is a copy of the minutes marked ‘LNS 1’).

7. THAT later the Defendant changed her position and decided to hold a parallel meeting
whether she resolved to go alone and bury the Deceased on 28/11/2023 at her home –
Big Tree, Ex-Wabuge farm. (Annexed herewith is the Chief’s letter marked ‘LNS 2’).

8. THAT unless restrained, the Defendant is likely to remove the body for burial to my
detriment and that of my children.

9. THAT I swear this affidavit in support of the application herein.

10. THAT I pray that the Defendant be restrained accordingly.

11. THAT the facts deponed to hereinabove are true and correct to the best of my
knowledge, information and belief.