Affidavit

REPUBLIC OF KENYA

IN THE PRINCIPAL MAGISTRATES COURT AT NAIROBI

CIVIL CASE NUMBER EJ. XXX OF 1999

CLEARING &FORWARDING COMPANY LIMITED………………..PLAINTIFF

VERSUS

YYYYYY…….………………..1^ST DEFENDANT

 SAFARIS LTD………………………….2^ND DEFENDANT

PPPPP……………………3^RD DEFENDANT

SUPPORTING AFFIDAVIT

I, XXXX of Post Office Box Number XXXX, Nairobi in the Republic of Kenya do make oath and solemnly state as follows:-

1.          THAT I am the General Manager of  Safaris Ltd ("the Defendant"), which company is the 2^nd Defendant in this suit.

2.        THAT in my aforesaid capacity, I am duly authorised and competent to swear this Affidavit on the said company's behalf.

3.            THAT on the 28^th September 1999, the Plaintiff, through its Advocates, Messrs. B. M.  & Company Advocates instituted a suit against the Defendants by filing a Plaint on the 28^th September 1999. Pursuant thereto, the 2^nd Defendant entered appearance on 28^th April 2000 and filed its Defence on 8^th May 2000 through its advocates on record, WANJIKU & Company, Advocates.

4.         THAT in the said Defence, the 2^nd Defendant has averred that it is not liable for the damages and costs arising out of the alleged accident caused by Motor Vehicle Registration Number KAB 114B ("the said motor vehicle”) or any part thereof or at all.

5.     THAT in the said Defence, the 2^nd Defendant has further averred that it has been wrongfully sued and should not be party to this suit.

6.          THAT in the said Defence, the 2^nd Defendant has further averred in the alternative and without any prejudice whatsoever to any of the foregoing matters therein, that it sold the said Motor Vehicle to a third party on 21^st July, 1995, duly effected the Transfer thereof and that it is and was no longer the owner of the said Motor vehicle at all material times.

7.        THAT the 2^nd Defendant had transferred the said Motor vehicle to  & Company (K) Ltd. Annexed herewith and marked "LS1" are true copies of the credit note, the transfer of ownership forms, forwarding letter from  Safaris Ltd to the Registrar of Motor Vehicles sent through registered post and the post office receipt in respect of the said postage.

8.     THAT  in view of the foregoing, the 2^nd Defendant has wrongly been sued by the Plaintiff and that the proper Defendant in this suit would be D.T. Dobie & Company (K) Ltd.

9   THAT further to paragraph 8 hereinabove, the 2^nd Defendant properly claims indemnity and contribution from the proposed third party since the said  & Company (K) Ltd was at all material times, the rightful and lawful owner of the said Motor vehicle and especially at the time of the said accident.

10.   THAT I am advised by the Advocates on record for the 2^nd Defendant, Messrs. WANJIKU & Company, Advocates, whose advise I verily believe to be true that  & Company (K) Ltd is a proper party to be joined in this suit.

11.    THAT I swear this Affidavit in support of the Application herein for leave to issue and serve a Third Party Notice upon  & Company (K) Ltd.

12. THAT what is deponed to hereinabove is true to the best of my knowledge and belief.

SWORN  by the said XXXX   )

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at Nairobi this                   day of      2001           )

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BEFORE ME                                          )

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COMMISSIONER FOR OATHS            )                                                               

DRAWN AND FILED BY:-

 xxxxxxxxx and Company

Advocates

XXXX

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P O Box XXXXXX