INTERPLEADER

Question 1
You are a pupil at Prolific Advocates LLP which has received instructions from Philip Ole
Perio the managing director of Merlin Cargo Hauliers to file pleadings on their behalf to
enable them to avoid impending liability from a suit or suits which the client deems
imminent.
In the client interview, the client narrated the following as the reason for their suspicion of
the inevitability of court action against them.
On the 14/11/2016, the client was hired as a clearing agent by one Mwendwa Jose to import
goods contained in a container marked XCL3007189-K. The container of goods arrived on
the 28/12/2016 and has been stored in a go-down under the charge of the client, where after
the client notified Mwendwa Jose of its arrival. One Mwanaisha Boke arrived on the
30/12/2016 intending to receive the container of goods. The said Mwanaisha Boke did not
have any notice bearing authority from Mwendwa Jose to receive the container of goods on
Mwendwa Jose’s behalf. The client therefore declined to release the container of goods to
Mwanaisha Boke.
Mwanaisha Boke insisted on receiving the container of goods, presenting a Judgment in
HCCC No. 36 of 2016 in which she was a decree-holder in a judgment against Mwendwa
Jose, the judgment-debtor. Upon execution, she obtained an Order Absolute from a garnishee
proceeding granting her the property over the garnishment held by third parties on behalf of
Mwendwa Jose. The decree from the judgment and the garnishee order absolute did not
specifically list the container of goods as one of the properties to be delivered over to the
decree-holder. Incidentally, the container of goods arrived after the issuance of the garnishee
order absolute.
Mwendwa Jose has also demanded the release of the container of goods to him, insisting that
the Mwanaisha does not have a valid order that would license her possession over the
container of goods.
Both Mwendwa Jose and Mwanaisha Boke have served the client with separate demand
letters dated the 19/01/2017 and 20/01/2017, respectively, each giving the client 7 days in
which to comply and release the container to them, or else face legal suit. The client is
therefore apprehensive that they may be held liable to Mwendwa Jose should they release the
container to Mwanaisha Boke, and vice versa.
Your pupil master has requested you to draft the essential pleading that would protect the
client for the adversity of a law suit initiated by either of the parties intending to recover the
container of goods.
 THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
IN THE COMMERCIAL & TAX DIVISION
MISC. APP. NO. 5378 OF 2017
IN THE MATTER OF DELIVERY OF POSSESSION OF CONTAINER NUMBER
XCL3007189-K
MERLIN CARGO HAULIERS……………………………………………PLAINTIFF
ORIGINATING SUMMONS
(O.37, r. 14 of the Civil Procedure Rules)
LET MWENDWA JOSE and MWANAISHA BOKE of P. O. Box 57VC-00710 and P. O.
Box 789DM-00980, respectively, within 14 days after service of this summons on them,
inclusive of the day of such service, cause an appearance to be entered for them to this
summons, which is issued upon the application of MERLIN CARGO HAULIERS, the
Plaintiff herein of P. O. Box 11659-00210 for ORDERS THAT:
1. The Court to determine who amongst the two parties mentioned hereinabove is entitled
possession of the container, the subject matter in issue;
2. The Court to determine who amongst the two parties shall be liable to indemnify the
Plaintiff the costs and charges for the importation and demurrage charges of the said
container; and
3. The Court to determine the costs of this application and to determine whom amongst the
two parties shall bear the costs.
WHICH APPLICATION is further supported by the annexed affidavit of PHILIP OLE
PERIO, the nature of the case and other reasons to be adduced at the hearing hereof.
DATED at NAIROBI this 23rd day of January 2017
THIS SUMMONS was taken out by Prolific Advocates LLP for the above-named Plaintiff
Signed by DR & Sealed with the Official Court Seal
DEPUTY REGISTRAR
HIGH COURT OF KENYA
The Defendants may appear thereto by entering appearance either personally or by Advocate
at the High Court of Kenya, Commercial & Tax Division Court or Registry in which this
Summons is filed.
NOTE: If either of the Defendants does not enter appearance within the time and place
above mentioned, such Order will be made and proceedings taken as the Court may think just
and expedient.
DRAWN AND FILED BY:
Prolific Advocates LLP
Arboretum (Our Ref: PA/OS/07/03/17)
P. O. Box 567IOU-00860
NAIROBI

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI
IN THE COMMERCIAL & TAX DIVISION
MISC. APP. NO. 5378 OF 2017
IN THE MATTER OF DELIVERY OF POSSESSION OF CONTAINER NUMBER
XCL3007189-K
MERLIN CARGO HAULIERS………………………………..PLAINTIFF
AFFIDAVIT
I, PHILIP OLE PERIO of Elgon Street, P.O Box 30437-00720, Nairobi make oath and state
as follows.
1. THAT I am the Manager Director of the Plaintiff herein.
2. THAT in my aforesaid capacity, I am duly authorised and competent to swear this
Affidavit on the Plaintiff’s behalf.
3. THAT the Plaintiff herein is a logistics company dealing with importation of goods for
clients.
4. THAT on the 14/11/2016 the Plaintiff herein received instructions from one
MWENDWA JOSE to import goods contained in a container marked XCL3007189-K.
(Annexed herewith and marked MCH-1 a certified copy of the bill of lading pertaining to
the said container)
5. THATthe container arrived on the 28/12/2016 and has been stored in a depot under the
charge of the Plaintiff herein.
6. THAT the Plaintiff herein informed MWENDWA JOSE immediately upon the arrival
of the container.
7. THAT one MWANAISHA BOKE arrived on the 30/12/2016 intending to receive the
container.
8. THAT MWANAISHA BOKE did not have any notice bearing authority from
MWENDWA JOSE to receive the container on MWENDWA JOSE’s behalf. The
Plaintiff therefore refused to release the goods.
9. THAT MWANAISHA BOKE insisted on receiving the container, presenting a
Judgment in HCCC No. 36 of 2016 in which MWANAISHA BOKE herein was a
 decree-holder against MWENDWA JOSE herein who was the judgment-debtor and an
Order Absolute from a garnishee proceeding granting MWANAISHA BOKE herein the
property over the garnishment held by third parties on behalf of MWENDWA
JOSEherein. (Annexed herewith and marked MCH-2 a certified copy of the said
Judgment and Garnishee Order Absolute)
10. THAT the decree from the judgment and the garnishee order absolute mentioned in
paragraph (9) did not specifically list the container as one of the properties to be delivered
over to MWANAISHA BOKE.
11. THAT further, the container mentioned in paragraph (4) arrived after the issuance of the
judgment and the garnishee order absolute mentioned in paragraph (9).
12. THATMWENDWA JOSE has also come to the premises of the Plaintiff’s place of
business to lay claim over the container, insisting that the MWANAISHA BOKE does
not have any color of right of claim over the container.
13. THATboth MWENDWA JOSE and MWANAISHA BOKE have now served the
Plaintiff herein with separate demand letters dated the 19/01/2017 and 20/01/2017,
respectively, each giving the Plaintiff 7 days in which to comply and release the container
to them, or else face a legal suit. (Annexed herewith and marked MCH-3 are certified
copies of the said demand letters)
14. THAT the Plaintiff herein is therefore apprehensive that they may be held liable to
MWENDWA JOSE should they release the container to MWANAISHA BOKE and
vice versa.
15. THAT the Plaintiff herein has got no interest in the container held under the parties
charge in the depot, save to the extent of the importations charges and the storage charges
accruing. (Annexed herewith and marked MCH-4 a certified copy of the Agreement for
Consignment between the 1st Respondent and the Applicant)
16. THAT the Plaintiff’s relationship with MWENDWA JOSE is one of an agent service
provider and a client and the Applicant herein is therefore not in collusion with
MWENDWA JOSE. (Annexed herewith and marked MCH-5 a certified copy of the
company invoice receipt and storage charges receipt)
17. THAT the Plaintiff herein is ready to deposit the original documents bill of lading
relating to the container as under paragraph (4) with the Court.
18. THAT I swear this affidavit in support of the application seeking to protect the Plaintiff
herein from any action that may be instituted by either party who would be prejudiced
should the Plaintiff herein release the container to the other.
19. THAT the Plaintiff herein therefore seeks the intervention of the Court, by this
application, to determine as to which of the parties between MWENDWA JOSE and
MWANAISHA BOKE is eligible to the possession of the container and therefore liable
for the charges arising from importation and storage.
20. THAT the Plaintiff herein also seeks a determination from the Court as to costs incurred
by the Plaintiff arising from this application.
21. THAT what is deponed to hereinabove is true to the best of my information, knowledge
and belief.
SWORN by the said PHILIP OLE PERIO ) _________________
at Nairobi on this 23rd day of January 2017 ) DEPONENT
BEFORE ME: )
)
COMMISSIONER FOR OATHS: )
DRAWN AND FILED BY:
Prolific Advocates LLP
Arboretum (Our Ref: PA/OS/07/03/17)
P. O. Box 567IOU-00860
NAIROBI
TO BE SERVED UPON:
1. Mwendwa Jose
P. O. Box 57VC-00710
NAIROBI
2. Mwanaisha Boke
P. O. Box 789DM-00980
NAIROBI (Service through the Plaintiff’s advocates)

Question 2
You are a pupil at Prolific Advocates LLP which has received instructions from Philip Ole
Perio the managing director of Merlin Cargo Hauliers to file pleadings on their behalf to
enable them to avoid impending liability from a suit instituted by their client, Mwendwa
Jose,under whose instructions they cleared cargo for.
In the client interview, the client narrated the following.
On the 14/11/2016, the client was hired as a clearing agent by one Mwendwa Jose to import
goods contained in a container marked XCL3007189-K. The container of goods arrived on
the 28/12/2016 and was stored in a go-down under the charge of the client, where after the
client notified Mwendwa Jose of its arrival. One Mwanaisha Boke arrived on the 30/12/2016
intending to receive the container of goods. The said Mwanaisha Boke did not have any
notice bearing authority from Mwendwa Jose to receive the container of goods on Mwendwa
Jose’s behalf. The client therefore declined to release the container of goods to Mwanaisha
Boke.
Mwanaisha Boke insisted on receiving the container of goods, presenting a Judgment in
HCCC No. 36 of 2016 in which she was a decree-holder in the judgment against Mwendwa
Jose,the judgment-debtor. Upon execution she obtained an Order Absolute from a garnishee
proceeding granting her the property over the garnishment held by third parties on behalf of
Mwendwa Jose. The decree from the judgment and the garnishee order absolute did not
specifically list the container of goods as one of the properties to be delivered over to the
decree-holder. Incidentally, the container of goods arrived after the issuance of the garnishee
order absolute.
Mwendwa Jose has also demanded the release of the container of goods to him, insisting that
the Mwanaisha does not have a valid order that would license her possession over the
container of goods.
Mwendwa Jose has filed a Plaint on 19/01/2017and served the client and Mwanaisha with
summons to enter appearance within 10 days. The client is therefore apprehensive that they
may be held liable to Mwendwa Jose should the suit proceed with them as a party being sued.
Your pupil master has requested you to draft the essential pleading that would protect the
client for the adversity of the law suit initiated by Mwendwa Jose intending to recover the
container of goods.

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI
IN THE COMMERCIAL & TAX DIVISION
CIVIL CASE NO. 5378 OF 2017
MERLIN CARGO HAULIERS……………………1st DEFENDANT/APPLICANT
VERSUS
MWENDWA JOSE………………………………………PLAINTIFF/1st RESPONDENT

MWANAISHA BOKE……………………………2nd DEFENDANT/2nd RESPONDENT

CHAMBER SUMMONS
(Section 3A Civil Procedure Act Cap 21 Law of Kenya, Order 34 rule1 of the Civil
Procedure Rules, 2010)
LET ALL PARTIES concerned attend before the Honourable Judge in Chambers on the 21st
day of February 2017 at 9.00 O'clock in the forenoon or soon thereafter so as Counsel for the
1st Defendant/Applicant may be heard on an Application for ORDERS THAT:
1. The Honorable Court discharges the Applicant from Civil Suit herein filed by the 1st
Respondent.
2. The Honorable Court provides for the expenses of the Applicant expended towards
import and storage charges.
3. The Honorable Court provide for the costs of this application.
WHICH APPLICATION is based on the following GROUNDS THAT:
a) The Applicant is a clearing and forwarding agent engaged by the 1st Respondent to import
a container of goods on their behalf.
b) The Applicant incurred expenses for importation and storage charges.
c) The Applicant is in possession of the container of goods and holds it in lieu of the monies
expended towards undertaking the instructions of the 1st Respondent.
WHICH APPLICATION is supported by the annexed affidavit of PHILIP OLE PERIO, the
nature of the case and other reasons to be adduced at the hearing.
DATED at NAIROBI this 30th day of January 2017
Signed
PROLIFIC ADVOCATES LLP
ADVOCATES FOR THE APPLICANT
DRAWN AND FILED BY:
Prolific Advocates LLP
Arboretum (Our Ref: PA/OS/07/03/17)
P. O. Box 567IOU-00860
NAIROBI
TO BE SERVED UPON:
1. Mwendwa Jose
NAIROBI (through the Applicant’s Advocates)
2. Mwanaisha Boke
NAIROBI (through the Applicant’s Advocates)
If either of the Respondents does not enter appearance within the time and place above
mentioned, such Order will be made and proceedings taken as the Court may think just and
expedient.

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI
IN THE COMMERCIAL & TAX DIVISION
CIVIL CASE NO. 5378 OF 2017
MERLIN CARGO HAULIERS……………………1st DEFENDANT/APPLICANT
VERSUS
 MWENDWA JOSE……………………………………PLAINTIFF/1st RESPONDENT
MWANAISHA BOKE………………………2nd DEFENDANT/2nd RESPONDENT
AFFIDAVIT
I, PHILIP OLE PERIO of Elgon Street, P.O Box 30437-00720, Nairobi make oath and
state as follows.
1. THAT I am the Manager Director of the Applicant herein.
2. THAT in my aforesaid capacity, I am duly authorised and competent to swear this
Affidavit on the Applicant’s behalf.
3. THAT the Applicant is a logistics company dealing with importation of goods for
clients.
4. THAT on the 14/11/2016 the Applicant received instructions from the 1st Respondent
to import goods contained in a container marked XCL3007189-K. (Annexed
herewith and marked MCH-1 a certified copy of the bill of lading pertaining to the
said container)
5. THAT the container arrived on the 28/12/2016 and has been stored in a depot under
the charge of the Applicant
6. THAT the Applicant informed the1stRespondent immediately upon the arrival of the
container.
7. THAT the 2nd Respondent arrived on the 30/12/2016 intending to receive the
container.
8. THAT the 2nd Respondent did not have any notice bearing authority from the 1st
Respondent to receive the container on the 1st Respondent’s behalf. The Applicant
therefore refused to release the goods.
9. THAT the 2nd Respondent insisted on receiving the container, presenting a Judgment
in HCCC No. 366 of 2016 in which the 2nd Respondent herein was a decree-holder
against the 1st Respondent herein who was the judgment-debtor and an Order
Absolute from a garnishee proceeding granting the 2nd Respondent the propriety over
the garnishment held by third parties on behalf of the 1st Respondent. (Annexed
herewith and marked MCH-2 a certified copy of the said Judgment and Garnishee
Order Absolute)
10. THAT the decree from the judgment and the garnishee order absolute mentioned in
paragraph (9) did not specifically list the container as one of the properties to be
delivered over to the 2nd Respondent.
11. THAT further, the container mentioned in paragraph (4) arrived after the issuance of
the judgment and the garnishee order absolute mentioned in paragraph (9).
12. THAT the 1st Respondent has also come to the premises of the Applicant’s place of
business to lay claim over the container, insisting that the 2nd Respondent does not
have any color of right of claim over the container.
13. THAT the 1st Respondent filed a Plaint on the 19/01/2017 and served both the
Applicant and the 2nd Respondent with summons, to which my advocates on record
filed a memorandum of appearance on 29/01/2017 pending the filing of a written
statement of defence. (Annexed herewith and marked MCH-3 a certified copy of the
Plaint and the applicant’s Written Statement of Defence)
14. THAT the Applicant does not have interest in the subject matter and therefore feel
they do not have to file a defence.
15. THAT the Applicant is therefore apprehensive that they may be held liable to the 1st
Respondent in their suit against the Applicant.
16. THAT the Applicant herein has got no interest in the container held under their
charge in the depot, save to the extent of the importations charges and the storage
charges accruing. (Annexed herewith and marked MCH-4 a certified copy of the
company invoice receipt and storage charges receipt)
17. THAT the Applicant’s relationship with the 1st Respondent is one of a service
provider and a client and the Applicant is therefore not in collusion with the 1st
Respondent. (Annexed herewith and marked MCH-5 a certified copy of the
Agreement for Consignment between the 1st Respondent and the Applicant)
18. THAT the Applicant is ready to deposit the original documents of the bill of lading
relating to the container as under paragraph (4) with the Court.
19. THAT I swear this affidavit in support of the application seeking to protect the
Applicant from any action that may be instituted by either of the parties who would be
prejudiced should I release the container to the other.
20. THAT the Applicant therefore seeks the intervention of the Court, by this application,
to determine as to which of the parties between the 1st Respondent and the 2nd
Respondent is eligible to the possession of the container and therefore liable for the
charges arising from importation and storage.
21. THAT the Honorable Court discharges the Applicant form any liability and removes
them as a party in the 1st Respondent’s suits.
22. THAT the Applicant also seeks a determination from the Court as to costs incurred
by the Applicant arising from this application.
23. THAT what is deponed to hereinabove is true to the best of my information,
knowledge and belief.

SWORN by the said PHILIP OLE PERIO ) _________________

at Nairobi on this 30th day of January 2017 ) DEPONENT
BEFORE ME: )
)
COMMISSIONER FOR OATHS )
DRAWN AND FILED BY:
Prolific Advocates LLP
Arboretum (Our Ref: PA/OS/07/03/17)
P. O. Box 567IOU-00860
NAIROBI
TO BE SERVED UPON:
1. Mwendwa Jose
P. O. Box 57VC-00710
NAIROBI
2. Mwanaisha Boke
P. O. Box 789DM-00980
NAIROBI (Service through the Plaintiff’s advocates)