REPUBLIC OF KENYA
IN THE SMALL CLAIMS COURT OF KENYA AT NAIROBI CITY
COURT NAME: MILIMANI COMMERCIAL
CASE NUMBER: SCCC/E2788/2024
CITATION: GEORGE PETER OMWERI VS BENJAMIN MAINGI MAKAU
ORDERS(COURT DOCUMENT)
THIS MATTER coming up on the 20th day of August 2024 before Hon. Kiongo Kagenyo (Mr.) (RM)
(Adjudicator) for directions on the Respondent's/ Judgment Debtor's/ Applicant's Notice of Motion
application dated 12th day of August 2024, and upon reading the Notice of Motion application, the
Supporting Affidavit of Benjamin Maingi Makau of even date and the annexures therein,
IT IS HEREBY ORDERED:
1. THAT the Applicant do serve the application and these Orders upon the Claimant Before Close of
Business 22nd August 2024;
2. THAT upon such service, the Claimant is at liberty to file his reaction to the application but in any
case, Before Close of Business 30th August 2024; and
3. THAT parties do appear before Hon. Manuela W. Kinyanjui (SPM)(Adjudicator) on the 3rd day of
September for further directions.
Given under my Hand and the Seal of this Court on this 20th day of August 2024.
SIGNED BY: HON. KIONGO KAGENYO (MR) (RM)
THE JUDICIARY OF KENYA.
MILIMANI SMALL CLAIMS COURT
SMALL CLAIMS COURT
DATE: 2024-08-20 22:10:16+03
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Number: OOGA2M2024
REPUBLIC OF KENYA
IN THE SMALL CLAIMS COURT AT MILIMANI
MILIMANI COMMERCIAL COURTS
SCCC NO. E2788 OF 2024
GEORGE PETER OMWERI ………………………..………….…………………….CLAIMANT
VERSUS
BENJAMIN MAINGI MAKAU ………………………..…………………….1ST RESPONDENT
GEOFREY NZAKU OF MWEU……………………..………………..……..2ND RESPONDENT
CERTIFICATE OF URGENCY
I,P.O. Malanga, an advocate of the High Court of Kenya having the conduct of
this matter on behalf of the respondents do hereby certify this application as
extremely urgent deserving to be dealt with on a priority basis on the following
grounds:-
1. THAT there is in place an ex parte default judgment passed herein on
23.7.7.2024 from which a decree has since been extracted and the
claimant is actively pursuing the issuance of processes of
execution from the Honourable Court.
2. THAT unless the present application is timeously dealt with and the stay
orders sought granted, the present application will be rendered a mere
academic exercise.
3. THAT it is, therefore, necessary that the current application be certified
urgent.
I certify
Dated at Nakuru this…12th ………… day of ……August……………..2024
BORE, MALANGA & CO
ADVOCATES FOR THE RESPONDENTS
DRAWN & FILED BY:
BORE, MALANGA & CO ADVOCATES,
VICMARK PLAZA,3RD FLOOR,ROOM C4,
GOVERNMENT ROAD,
P.O BOX 1477-20100,
NAKURU.
Email:
[email protected] REPUBLIC OF KENYA
IN THE SMALL CLAIMS COURT AT MILIMANI
MILIMANI COMMERCIAL COURTS
SCCC NO. E2788 OF 2024
GEORGE PETER OMWERI ………………………..………….…………………….CLAIMANT
VERSUS
BENJAMIN MAINGI MAKAU ………………………..…………………….1ST RESPONDENT
GEOFREY NZAKU OF MWEU……………………..………………..……..2ND RESPONDENT
NOTICE OF MOTION
(Under Articles 1(3)(c),2,3(1),10,19,20,25(c), 48,50(1),159,161(1),162(4),169(1)(d)
& 169(2) of the Constitution of Kenya 2010, Sections 3(1) & 3(2) of the Judicature
Act(Cap 8 Laws of Kenya), Sections 3(1) & 3(2),4(2),11(1),15(1) & 15(2) , 17, 27,
41(1)(a) & 41(1)(b), 43 and 50 of the Small Claims Court Act(Cap 10A Laws of
Kenya), Rules 5(1),7(1),11(4),28 and 35 of the Small Claims Courts Rules,2020 and
all other enabling provisions of the law).
TAKE NOTICE that this Honourable Court will be moved on the day of
2024 at 9:00 o’clock in the forenoon or so soon thereafter as counsel for the
Respondents may be heard on an application for ORDERS:-
1. THAT this application be certified urgent and service of the same be
dispensed with in the first instance and heard on a priority basis.
2. THAT pending the hearing and determination of this application inter
partes, the Honourable Court be pleased to stay the execution of its
judgment and/or decree passed herein on 23.7.2024.
3. THAT pending the consideration of prayers (4) and (5) of this application,
the Honourable Court be pleased to summon one Francis Musyoka
Nguthu to appear before this Honourable Court for purposes of being
examined and/or cross-examined as to the contents of his two (2)
diametrically opposed Certificates of Service both dated and/or sworn on
17.7.2024 and filed before this Honourable Court court.
4. THAT the Honourable Court be pleased to set aside its judgment and/or
decree passed herein on 23.7.2024.
5. THAT the costs of this application be provided for.
WHICH APPLICATION is grounded on the supporting affidavit of Benjamin
Maingi Makau annexed herein, further grounds to be adduced at the
hearing hereof and the following general grounds:-
1. THAT this Honourable Court entered and/or passed a final default
judgment and/or decree herein on 23.7.2024 in favour of the Claimant
herein as against the Respondents herein.
2. THAT the Claimant has already applied for warrants of attachment and
/or sale to enable him execute the said judgment and/or decree.
3. THAT it is, therefore, necessary for the stay orders sought herein to be
granted to preserve the substratum of this application.
4. THAT the judgment and/or decree of the Honourable Court is null and
void ab initio as the Small Claims Court at Milimani has no territorial
jurisdiction to entertain the claim by the Claimant.
5. THAT the Judgment and/or the decree of the Honourable Court was
passed without any and/or proper service of the statement of claim
and/or notices upon the respondents herein.
6. THAT the judgment and/or decree of the Honourable Court is in any event
completely irregular for entering a final default judgment without
subjecting the claimants’ claim to formal proof hearing.
7. THAT the respondents are in any event possessed of a good defence to
the claimants’ claim.
8. THAT it is, therefore, in the interest of justice that the orders sought in the
application be allowed.
Dated at Nakuru this…12th ………… day of ……August……………..2024
BORE, MALANGA & CO
ADVOCATES FOR THE RESPONDENTS
DRAWN & FILED BY:
BORE, MALANGA & CO ADVOCATES,
VICMARK PLAZA,3RD FLOOR,ROOM C4,
GOVERNMENT ROAD,
P.O BOX 1477-20100,
NAKURU.
Email:
[email protected]TO BE SERVED UPON
MAINGI MUSYIMI & ASSOCIATES
ADVOCATES,
TOWN PLAZA,3RD FLOOR, RM F3-6,
NGEI ROAD,
P.O BOX 2292-90100,
MACHAKOS
Email:- [email protected]
NAIROBI.
(If any party served does not appear at the time and place above mentioned
such orders will be made and proceedings taken as the court may think just and
expedient)
REPUBLIC OF KENYA
IN THE SMALL CLAIMS COURT AT MILIMANI
MILIMANI COMMERCIAL COURTS
SCCC NO. E2788 OF 2024
GEORGE PETER OMWERI ………………………..………….…………………….CLAIMANT
VERSUS
BENJAMIN MAINGI MAKAU ………………………..…………………….1ST RESPONDENT
GEOFREY NZAKU OF MWEU……………………..………………..……..2ND RESPONDENT
SUPPORTING AFFIDAVIT
I, BENJAMIN MAINGI MAKAU, of Post Office Box 1791-90100 Machakos in the
Republic of Kenya do hereby make oath and state as follows:-
1. That I am the 1st Respondent herein, fully conversant with all the relevant
facts of the matter and having the authority of the 2 nd respondent, therefore,
competent to make and swear this affidavit.
2. That this Honourable entered and/or passed a final default judgment
against myself and the 2nd respondent on 23.7.2023.(Attached herein and
marked ‘‘BMM1’’ is a copy of the decree evidencing the same).
3. That the Claimants have already applied for warrants of attachment and
/or sale to enable them execute the said judgment and/or
decree.(Attached herein and marked ‘‘BMM2’’ is an extract from the
judiciary online filing platform evidencing the participation of one Robert
Waweru Maina t/a Antique Auctions).
4. That it is, therefore, necessary for the stay orders sought herein to be
granted to preserve the substratum of this application.
5. That neither myself nor the 2nd respondents herein are residents of and/or
people who carry out business in Nairobi County as both of us are residents
of Machakos County where both of us also happen to carry out our
businesses.
6. That the claimant is himself a resident of Malaa which is within Matungulu
Sub-County within Machakos County. (Attached herein and marked ‘‘BMM3’’
is a copy of the witness statement filed by the claimant in this matter.).
7. That the cause of action in this matter is alleged to have arisen in Matungulu
Sub-County within Machakos County. (Attached herein and marked ‘‘BMM4’’
is a copy of the statement of claim and the police abstract filed by the
claimant when instituting this claim).
8. That the Small Claims Court at Milimani Commercial Courts was
established through Gazette Notice No.3791 of 23.4.2021 limiting its
territorial jurisdiction to Nairobi County. (Attached herein and marked
‘‘BMM5’’ is a copy of the said Gazette Notice No.3791).
9. That it is, therefore, obvious that the judgment and/or decree passed herein
on 23.7.2024 is null and void ab initio for being passed without jurisdiction.
10. That neither myself nor the 2nd respondent were ever served with any process
in this matter prior to the entry of the default judgment entered herein on
23.7.2024 as we only got to know about the case much later when one David
Makau Mutua who is a distant relative shared a whatsapp message of the
decree sent to him on phone on a 4.8.2024 which was a Sundany.
11. That a cursory look at the various certificates of service filed herein prior to
the entry of the final default judgment on 23.7.2023 clearly reveal that
Francis Musyoka Nguthu, the process server concerned, concocted and/or
peddled pure lies that are prima facie evident when one looks at the
affidavits. (Attached herein and marked ‘‘BMM6 (a)’’ and ‘‘BMM6 (b)’’ are
copies of the two diametrically opposed certificates of service evidencing the
same).
12. That it is clear at paragraph 3 of each of the two (2) certificates of service
possibly relied on by the Honourable Court to enter default judgment in
favour of the claimant that the said Francis Musyoka Nguthu allegedly
served a one Geofrey Nzaku Mweu identified by the same process server as
the driver to motor vehicle KCJ 925M which vehicle has completely no
relation to the allegations in the statement of claim.
13. That service of processes on the driver of motor vehicle KCJ 925M as alleged
by Francis Musyoka Nguthu in both his certificates of service can only be
service of processes upon himself as the said vehicle is clearly pleaded at
paragraph 3(a) of the statement of claim to be a vehicle owned by the
claimant himself.
14. That in any event, I have not set foot in Nairobi County since April 2024 so
that the alleged meetings to receive service from Francis Musyoka Nguthu on
the alleged dates of 23.6.2024 and 25.6.2024 is unashamed fabrication by a
process server purporting to carry a license given to him by the court.
15. That neither myself nor the 2nd respondent have any knowledge of the mobile
phone number 0706733160 which Francis Musyoka Nguthu alleges to have
called on the respective dates of 23.6.2024 and 25.6.2024 as evident in his two
different conflicting certificates of service filed before the Honourable Court.
16. That it is logically untenable that Francis Musyoka Nguthu was able to serve
both of us in exactly the same manner as appears in his two diametrically
opposed certificates of service both of which he was able to swear on
17.7.2024.
17. That we have a watertight defence to the claim by the claimant in the sense
that:-
a) The police abstract filed by the claimant himself shows that the motor
vehicle allegedly blamed for the accident was at the time of the
accident owned by one David Wambua Makau whose identity can only
be unearthed in a trial.
b) The Honourable Court has no territorial jurisdiction to entertain this
suit.
c) None of the particulars of negligence listed by the claimant in his
statement of claim are truthful.
d) That we also seriously dispute the damages and the quantum
specified by the claimant in his statement of claim.
18. It is, therefore, in the interest of justice that the orders sought in the
application be allowed.
19. That the claimant will not suffer any prejudice if the orders sought are
granted.
20. That I swear this affidavit in support of the application to which it is
attached.
Warrant of Attachment of Movable
Property in Execution Of Decree for CIVIL 7D
Money
REPUBLIC OF KENYA
IN THE MILIMANI SMALL CLAIMS COURT AT MILIMANI
SCCC/E2788 OF 2024
GEORGE PETER OMWERI .................................................................................... CLAIMANT
(Advocate:MAINGI MUSYIMI & ASSOCIATES)
-Against-
BENJAMIN MAINGI MAKAU,GEOFREY NZAKU MWEU
.................................................................................... RESPONDENT
To: WILSON MURIITHI KARIUKI T/A WISKAM AUCTIONEERS
WHEREAS BENJAMIN MAINGI MAKAU,GEOFREY NZAKU MWEU was ordered by decree of this court
passed on the 31st day of July 2024 in the above-mentioned suit to pay to the plaintiff the sum of Kshs.
230,088.96/= as noted in the margin and whereas the sum now due and payable in respect
Description Shs
Decretal Amount ............. 230,088.96 of the said decree is shillings
231,299.29/= these are to command
Less paid on account ........... 0.00 you to attach the movable property of
Balance ................................ 230,088.96 the said J/D as set forth in the
Schedule hereunto annexed or which
Taxed costs ........................... - shall be pointed out to you by the said
D/H and unless the said judgment
Interest on Decretal Amount 1,210.33
debtor shall pay to you the said sum of
Further costs ...................... - shillings 231,299.29/= together with
your costs of attachment, to hold the
Court Collection Fee ........ Nil same until further orders from court
TOTAL 231,299.29
You are further commanded to return this warrant on or before the 14th day of October 2024 with an
endorsement certifying the day on which and manner in which it has been executed, or why it has not been
executed.
SCHEDULE
GIVEN UNDER my hand and the Seal of the Court this 15th day of August, 2024
SIGNED BY: HON. MANUELA W. KINYANJUI
HON. MANUELA W. KINYANJUI
ADJUDICATOR / MAGISTRATE
MILIMANI SMALL CLAIMS COURT
DATE OF ISSUE: 2024-08-15 14:52:21
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VERY IMPORTANT
If the property, the subject of this order, is under attachment in execution of decrees of more courts or more
decrees of this court that one, the court broker executing this order being levied against the same property.
Attention is invited to section 44 of the Civil Procedure Act (Cap. 21) which lays down what property is
exempted from attachment and sale in execution of decrees.
Attention is also drawn to the Rules of Court (Attachment and sale of property), volume V. Laws of Kenya,
1948.
JKF -12/00
Warrant of sale of Movable Property in
CIVIL 26D
Execution Of Decree for Money
REPUBLIC OF KENYA
IN THE MILIMANI SMALL CLAIMS COURT AT MILIMANI
SCCC/E2788 OF 2024
GEORGE PETER OMWERI .................................................................................... CLAIMANT
(Advocate:MAINGI MUSYIMI & ASSOCIATES)
-Against-
BENJAMIN MAINGI MAKAU,GEOFREY NZAKU MWEU
.................................................................................... RESPONDENT
To: WILSON MURIITHI KARIUKI T/A WISKAM AUCTIONEERS
These are to command you to sell by auction, after giving 15 days previous notice, by fixing the same in this
Court-house, and after making due proclamation, the Judgment-debtor property attached under a warrant
from this Court, dated the 15th day of August 2024 in execution of a decree in favor of Decree-holder in
SCCC CASE E2788 of 2024 or so much of the said property as shall realize the sum of Shillings
231,299.29/= being the amount/balance of the said decree and costs remaining unsatisfied. You are further
commanded to return this warrant on or before the 14th day of October 2024.with an endorsement certifying
the manner in which it has been executed, or the reason why it has not been executed.
GIVEN UNDER my hand and the Seal of the Court this 15th day of August, 2024
SIGNED BY: HON. MANUELA W. KINYANJUI
HON. MANUELA W. KINYANJUI
ADJUDICATOR / MAGISTRATE
MILIMANI SMALL CLAIMS COURT
DATE OF ISSUE: 2024-08-15 14:52:21
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JKF -12/00
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