REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
FAMILY (ORIGINATING SUMMONS) CASE NO. E001 OF 2025
LEVI MUYONGA AMUDALA............................................PLAINTIFF
VERSUS
KERSTIN AMUDALA NEE KERSTIN GEYER..................,.DEFENDANT
JUDGMENT
The Pleadings
1. The plaintiff filed the Originating Summons (OS) herein for division of matrimonial property following his divorce from the defendant. The OS is brought under Order 37 of the Civil Procedure Rules (CPR), section 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya and Articles 45(3) and 68(3) of the Constitution of Kenya and sections 2, 4, 6, 11, 12, 14 and 17 of the Matrimonial Property Act (Cap. 152) Laws of Kenya. The OS is dated 28 th April 2025. It is supported by the affidavit sworn on 28 th April 2025 by Levi Muyonga Amudala, the plaintiff.
2. The following documents were filed by the parties in the Case Tracking System (CTS):
a. Originating Summons dated 28 th April 2025 filed by Makowade Advocates for the Plaintiff. It is not signed by either the plaintiff or his advocate. This was a defect in the pleadings as Order 2 Rule 16 provides in mandatory terms that every pleading shall be signed by an advocate, or recognised agent or by the party if he sues or defends in person. I am however aware that there could be divided opinion on judicial determinations on the matter with some holding that the failure to sign a pleading is not fatal while others hold that it is.
b. Supporting affidavit sworn on 28 th April 2025 by Levi Muyonga Amudala, the plaintiff and filed alongside the OS. This was duly signed by the plaintiff and commissioned.
c. “Amended” supporting affidavit sworn on the same date of 28 th April 2025 by Levi Muyonga Amudala but filed in court on the 30 th April 2025. The content shows that it deposes to additional information not contained in the supporting affidavit. This ought to have been a supplementary affidavit and not an “amended affidavit.”
d. Memorandum of Appearance dated 12 th May 2025 and filed on 13 th May 2025.
e. Amended Originating Summons dated 13 th May 2025 and filed on 14 th May 2025. It is signed by Makowade Advocates for the Plaintiff. It could not amend a defective OS, the one dated 28 th April 2025.
f. “Amended” affidavit sworn on 14 th May 2025 by Levi Muyonga Amudala, the plaintiff and filed on the same day. The content shows that it deposes to additional information not contained in the previous affidavits. There are therefore indeed “amendments” to the affidavit.
3. I am well guided by the observation of Ouko, JA (as he then was) in Nicholas Salat v IEBC & 6 Others , CA (Application) No 228 of 2013, that the general trend, following the introduction of the overriding objective in various statutes as well as Article 159 of the Constitution , is that the courts strive to sustain rather than strike out pleadings on purely technical grounds. The learned judge explained:
“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”
4. Being guided by the above decision, and noting that the respondent has not raised any issue on the propriety of the pleadings, this court will consider the OS dated 13 th May 2025 as the one properly filed OS filed by the plaintiff and the accompanying “amended affidavit” shall be considered as the supporting affidavit to the OS dated 13 th May 2025 and therefore it will not be considered as amending the initial supporting affidavit. The unsigned OS dated 28 th April 2025 and its accompanying supporting affidavit are consequently struck off the record.
5. Since an affidavit cannot be amended and having struck out the initial OS dated 28 th April 2025 together with its supporting affidavit and considering the OS dated 13 th May 2025 to be the first one to be filed then its accompanying “amended” affidavit shall be considered as its supporting affidavit and the word “amended” in the heading shall be considered as surplusage.
6. Further to the foregoing, there is an amended Originating Summons dated 15 th May 2025 and filed on the same day. This then will be considered as the amendment to the now proper OS dated 13 th May 2025. This amended OS dated 15 th May 2025 was filed within the timelines for making an amendment once without leave and before close of pleadings as provided for under Order 8(1)(1) CPR since the defendant had not filed her replying affidavit.
7. However, the amendments were not done in line with Order 8 Rule 7(2) CPR which provides that all amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words. What the plaintiff did was to introduce new paragraphs printed in red and without retaining the old numbering but assigning new numbers to them depending on where the intended amendment was placed in the OS. Those intended amendments are quite extensive.
8. The other documents filed are:
g. The OS dated 15 th May 2025 is supported by the affidavit sworn on 15 th May 2025 by Levi Muyonga Amudala.
h. A Notice of Motion dated 15 th May 2025 was filed by the plaintiff and a supporting affidavit sworn on the same day 15 th May 2025 by Levi Muyonga Amudala and filed on the same day as the amended originating summons and the supporting affidavit. It is brought under section 1A,1B, 3A of the Civil Procedure Act and Article 45(3) and 68(3) of the Constitution of Kenya, sections 2, 4, 6, 11,12, 14, and 17 of the Matrimonial Property Act. It was filed without first withdrawing the earlier one dated 14 th May 2025. But parties subsequently agreed to abandon the notice of motion and prosecute the OS only instead.
i. An affidavit of service sworn on 19 th May 2025 by Ochieng Owade, Advocate deposing that on 19 th May 2025, he served the defendant herein with a notice of motion application and annexures together with amended Originating summons in this matter through her Advocate’s email luvunoadvo@gmail.com .
j. Replying affidavit sworn on 19 th May 2025 sworn by Kerstin Amudala Nee Kerstin Geyer, the defendant herein, an Austrian National and a resident of Diani, Kwale County in the Republic of Kenya. It was filed on 21 st May 2025. She mentions both the supporting affidavit and amended affidavit in her replying affidavit.
k. Unsigned witness statement of one Michael Daudi Gonga dated 26 th May 2025 and filed on 27 th May 2025 for the plaintiff by the firm of OG Makowade Advocates.
l. An affidavit of service sworn on 26 th May 2025 by Ochieng Owade, Advocate deposing that on 19 th May 2025, he served the defendant herein with a notice of motion application and a witness statement in this matter through her Advocate’s email luvunoadvo@gmail.com . This is in spite of the fact that the witness statement is dated 26 th May 2025.
m. A Replying affidavit sworn on 19 th May 2025 by Kerstin Amudala Nee Kerstin Geyer, the defendant herein and filed on 21 st May 2025 in response to the OS. The defendant did not raise any issue with the several Originating Summonses filed prior and I suppose that no prejudice was occasioned to her and that she was able to respondent to the amended OS dated 15 th May 2025.
n. Another replying affidavit sworn on 1 st July 2025 by Kerstin Amudala (nee Kerstin Geyer) and filed on 10 th July 2025 in opposition to the Supporting Affidavit sworn on 15 th May 2025 by the Plaintiff/Applicant in support of the Notice of Motion application. Since the parties agreed not to proceed with the notice of motion this affidavit is not useful in the proceedings.
o. A witness statement dated 22 nd July 2025 of one Shaban Juma for the defendant was filed in court on 23 rd July 2025. This statement is not useful in considering the OS because it is not a deposition under the Oaths and Statutory Declarations Act and it was not adopted under oath as evidence.
p. A further affidavit of Levi Muyonga Amudala dated 16 th July 2025 and which is not commissioned was filed on 28 th July 2025. It is deposed to be in response to the defendant’s replying affidavit sworn by Kerstin Amudala Nee Kerstin Geyer on the 19 th of May 2025. It was filed without leave of court which was against Order 2 Rule 13 of the CPR since pleadings closed 14 days after the defendant filed its replying affidavit. The plaintiff did not seek leave of court to have the further affidavit deemed as duly filed and properly on record.
q. An “amended” further affidavit sworn on 16 th July 2025 by Levi Muyonga Amudala filed on 29 th July 2025. It contains amendments, some crossed out and others written in red ink. The same was also not commissioned and was filed without the court’s leave.
r. These two affidavits therefore have two defects. First for not being commissioned before a Commissioner for Oaths appointed as provided under the Oaths and Statutory Declarations Act. Second, they were filed without leave of court because they came in after close of pleadings. The effect thereof is that they cannot be considered as affidavits but statements of the plaintiff as a witness. Unfortunately, even such a statements cannot be relied upon as evidence since the maker, the plaintiff, did not attend court to take oath and adopt the same as his evidence.
9. The parties, through their learned counsels first appeared before court on 30 th July 2025. Learned counsels informed the court that the parties wished to have the application dated 28 th May 2025 compromised and to proceed to the main hearing.
10. Learned counsel for the defendant informed the court that he wished to “amend” the replying affidavit to the Originating Summons. The court granted the defendant leave to file a further (not amended) affidavit with leave to the plaintiff to file a 2 nd supplementary affidavit.
11. The defendant indeed filed a further affidavit sworn on 19 th August 2025 and filed in court on the same day.
12. The plaintiff on his part filed a further supplementary affidavit sworn on 20 th August 2025 and filed in court on 25 th August 2025. This affidavit is shown to be commissioned by Ochieng Owade, Advocate of P. O. Box 0726092121, the same address that appears as the one for the plaintiff’s advocates through all the documents filed in court. Again, the name of the advocate, Ochieng Owade is the same that appears in the affidavits of service herein as the advocate appearing for the plaintiff. This is in violation of the proviso to section 4(1) of the Oaths and Statutory Declarations Act which states that an advocate cannot commission an affidavit for the same party for whom he is appearing as follows:
“Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding or concerned in the matter, or clerk to any such advocate, or in which he is interested.”
13. It follows that this affidavit is also defective and cannot be considered as an affidavit but a mere statement by the plaintiff. Again, it suffers the same fate that it is not admissible as evidence to be considered because the maker of the statement never attended court to adopt the statement under oath as his evidence.
14. The plaintiff’s prayers in the OS are for:
a. A declaration that the Plaintiff and Defendant jointly own the following properties, despite being registered in one or both of their names;
i. The company known as African Bush and Beach Adventures Limited in the ratio 20:80 (Plaintiff: Defendant)
ii. The entirety of property reference land parcel No. Kwale/Diani Beach Block/596, being an apartment situated at Kwale County, together with any/all developments therein. (Registered in the name of Amudala Kerstin)
iii. The entirety of property reference Kwale/Diani S.S/4692, containing by measurement Hectares (0.10 Ha) or thereabout, situated at Kwale County, together with any/all developments therein, comprising, inter alia a Permanent Bedroom Maisonette. (Registered in the name of the company known as African Bush and Beach Adventures Limited)
iv. Motor Vehicles: -
- KAN 415X Toyota Land Cruiser DO Reg/Lease- 19/07/2017; 20/07/2017 (Registered in the name of the plaintiff).
- KBP 446R Toyota Land Cruiser DO Reg/Lease- 4/04/2019; 5/04/2019 (Registered in the name of the plaintiff).
- KDG 922P Honda StepWagon DO Reg/Lease- 22/02/2022; 23/02/2022 (Registered in the name of the plaintiff).
- KDL 677G Subaru Forester DO Reg/Lease- 22/03/2023; 23/03/2023 (Registered in the name of the plaintiff).
b. An order for the sale, division and apportionment of the suit properties between the plaintiff and the defendant equally and/or equitably.
c. An order that the defendant does render a true account for the rents and profits obtained from the entirety of the stated properties, and the same be shared/divided between the plaintiff and the defendant equally and/or equitably.
d. If any of the properties have already been sold or transferred to a third party, the defendant accounts for all proceeds and that they be divided equally between the plaintiff and defendant equally and/or equitably.
e. An order that the defendant do perform all acts and/or execute all documents where necessary to transfer the plaintiff’s determined share/portion in the suit properties or in default thereof, the court orders the properties to be valued and sold under its supervision and the proceeds therefrom be shared/divided between the plaintiff and the defendant equally and/or equitably.
f. All costs of the suit to be awarded to the plaintiff.
15. The grounds in support of the OS as expounded in the affidavits of Levi Muyonga Amudala, the plaintiff are that he was married to the defendant between October 2016 and 2023 when their marriage was dissolved through divorce in Divorce Cause No. E003 of 2024. It is the plaintiff’s case that the properties listed in the grounds in support of the OS above were acquired during the pendency of their said marriage and that he contributed to their acquisition.
16. The plaintiff and the defendant are the directors/shareholders of the Company, African Bush and Beach Adventures Limited in the ratio 20: 80 respectively.
17. Among the properties jointly acquired by the plaintiff and defendant through contribution right from purchase through construction to completion is their matrimonial home, a three-bedroom house, situate on property known as reference No. Kwale/Diani S.S/4692, containing by measurement Hectares (0.10 Ha) or thereabout within Kwale County, and registered in the name of African Bush and Beach Adventures Limited. That the registration of the property in the company’s name was to protect the interests of the defendant, a foreign national, due to restrictions on holding a freehold title.
18. That notwithstanding the registration of the property in the name of African Bush and Beach Adventures Limited, the plaintiff and defendant retain beneficial ownership of the property as their matrimonial home, given their joint ownership and control of the company as directors and shareholders wherein the plaintiff and defendant hold shares in a 20:80 ratio.
19. Further that African Bush and Beach Adventures Limited constitutes matrimonial property, given its ownership structure, wherein the plaintiff and defendant hold shares in a 20:80 ratio, respectively, and all company proceeds were utilized for the benefit of the parties during the subsistence of the marriage.
20. That the plaintiff continuously contributed to the growth and development of the company by providing the motor vehicles registration numbers, Toyota Land Cruiser KAN 415X, Toyota Land Cruiser KBP 446R, Honda Step Wagon KDG 922P and Subaru Forester KDL 677G) registered in his name for the business and further performing acts of picking clients from the airport, dropping them in their accommodation venues, driving them to the parks and holiday destinations, and doing maintenance of cars.
21. That the said vehicles were and remain registered in the plaintiff’s name, having been purchased and maintained through joint contributions from both the plaintiff and defendant, with proceeds thereof utilized for the benefit of the parties during the subsistence of the marriage.
22. That the plaintiff’s financial contributions, including repeated cash deposits reflected in his bank account directly supported the Defendant and the family's joint affairs, including the business operations and acquisition of property.
23. Further that in addition to operating the business, the plaintiff also worked with a charity organization in Shimba Hills from 2016 to 2023, contributing to community development while continuing to provide for the family.
24. The plaintiff deposes that prior to his marriage to the defendant, he served as a logistical contractor for the US military in Afghanistan from 2010 to 2014, saving substantially from his employment and returning to Kenya to invest those earnings. He has annexed to the affidavit certificates of service in the US military.
25. That upon his return he initially set up a bar, restaurant, and butchery business in Donholm, Nairobi, before relocating to Diani in 2016 to build a life with the defendant. Thereafter, he established Buddy’s Bar and Restaurant in Diani and concurrently worked with a charitable organization in Shimba Hills from 2016 to 2023, investing in and supporting their family and business interests.
26. It is the plaintiff’s case that during the marriage, they jointly acquired and developed various properties now forming the subject of these proceedings and named in paragraph 14 above.
27. Although the plaintiff indicates that he has attached copies of the title deeds for the parcels of land and motor vehicle registration certificates, the only copy of title deed to land annexed is for land parcel No. Kwale/Diani S.S/4692.
28. It is the plaintiff’s position that he directly and substantially contributed financially and logistically to the acquisition and development of the above properties, and they were all treated as matrimonial assets during their marriage.
29. The plaintiff has provided as exhibits copies of bank statements in the name of Levi Muyonga Amudala/Kerstin Geyer Cur from Diamond Trust Bank A/C No. 0188408001 for the periods below:
a. 1 st June 2018 to 18 th March 2019. The total credits for this account was KShs 4,078,816/= and debits were KShs 3,359,229.15 with a balance of KShs 728,020.44/=;
b. 1 st January 2019 to 2 nd November 2023 with the opening balance as KShs 253,255.94 with credits of 3,321,928/= and debits of 3,575,203.91 and a balance of KShs – 19. 97
30. The second set of exhibits annexed to the affidavit were reviews, both positive and negative for African Bush and Beach Adventure Company for the period March 2016 to January 2020 with most of them being for 2017 and none for 2018 and one for 2019.
31. The third set of exhibits is Serena Hotels Contract rates addressed to the company with attention to Levi, the plaintiff, for the period 31 st January 2017 to July 2019.
32. He also produced receipts and e-mail correspondences for the company for the period 17 th October 2016 to 17 th January 2019.
33. There is also an unsigned general letter dated 15 th January 2019 from Kerstin Geyer as director of the company introducing Levi Muyonga Amudala as managing director since February 2015.
34. Exhibit 7 is a proforma invoice from Lota Car Sales Lt dated 17 th March 2023 in the name of Levi Muyonga Amudala for purchase of Subaru Forester Station Wagon Registration: KDL 677G.
35. He has also annexed as exhibits correspondences between the company and the Kenya Revenue Authority on the company’s tax obligations.
36. The plaintiff deposes that despite the dissolution of the marriage via Divorce Cause No. E003 of 2024, the defendant continues to have exclusive control, possession and to utilize the matrimonial properties and vehicles, including those registered solely in the plaintiff’s name, to the exclusion of the plaintiff and to unilaterally run the business without rendering any form of accounting or profit-sharing.
37. Further that the defendant, while having retained a larger shareholding in African Bush and Beach Adventures Ltd (80%), benefited from the plaintiff’s labour, investment, and sacrifice, all of which contributed to the growth and profitability of the matrimonial enterprise.
38. The plaintiff deposes that he has lived a life of sacrifice, having invested his youth, savings, and military earnings into the defendant and their matrimonial estate, only for the defendant to now unilaterally attempt to deny him a fair and equitable share in properties that were jointly acquired and developed.
39. In response to the plaintiff’s depositions, the defendant deposes that she single-handedly acquired all the properties enumerated by the plaintiff in his supporting affidavit and there was no contribution by the plaintiff to their acquisition whatsoever.
40. The defendant extensively deposes in the replying affidavit how she acquired each of the properties as outlined below.
41. To begin with, prior to 2019 when the plaintiff was offered shareholding of 20% in the company, her mother, Inger Geyer and herself were the shareholders in the company. She has provided a copy of the CR-12 dated 3 rd April 2019 showing that the company African Bush and Beach Adventures Limited was registered on 12 th January 2012 with 1000 ordinary shares of which 100 shares were held by Inger Geyer and 900 shares by Kerstin Geyer, the defendant. The two were also the directors of the company. Therefore, that the company was already in operation and developed when the plaintiff became a shareholder.
42. The defendant denies the plaintiff’s assertion that the company had its bank account in Germany, Austria or any other foreign country. She deposes that her immigration status in Kenya is on dependence pass and she had a work permit before marrying the plaintiff and she had accumulated some money in Kenya and Austria. That the little proceeds of the company were used in catering for their daily needs and it was not enough to start and run any project.
43. The defendant deposes that she offered the plaintiff, then her husband, shares of the company solely based on their relationship. That, he did not contribute anything towards the operation of the company and neither did he serve as an employee of the company. She has produced a copy of a judgment in the Mombasa ELRC E007 OF 2024, Levi Mugoya Amudala vs Kerstin Amudala Nee Kerstin Geye & another , an employment dispute where the plaintiff sued the defendant and the company, claiming his terminal dues as an employee of the company as managing director.
44. Further that none of the properties sought by the plaintiff was acquired from the proceeds of the company subsequent to when he became a shareholder in 2019. That the company ceased making profit due to the Covid-19 pandemic from 2019 when the plaintiff became a shareholder and the little profit the company made in 2019 was facilitated by other employees but not the plaintiff who was busy operating his business, Buddy's Bar & Restaurant.
45. She deposes further that she purchased land parcel Nos. Kwale/Diani/S.S/ 4693 and Kwale/Diani/S. S 4692 at a consideration of KShs. 4,000,000/= vide sale agreement dated 17 th January 2022. She has provided a copy of the sale agreement in the name of Amudala Kerstin as purchaser and Mockingbird Limited as the vendor. She deposes that being a foreigner and the titles to the properties being absolute, they could not have them registered exclusively in her name and therefore the same had to be registered in the name of the company. It is the defendant’s position that she paid for both parcels of land using funds from her own personal account. She has produced copies of bank statements from her personal bank account with Diamond Trust Bank in the name of Kerstin Geyer A/C No. 0160253001 showing the transaction dated 10 th February 2022 to her advocate, Muthee Soni Advocates and settlement of Fee Note dated 3 rd August 2022. She has also produced copies of the title deeds for land parcels Title Numbers Kwale/Diani S.S/4692 Kwale/Diani S.S/4693 each measuring approximate area 0.10 На in the name of African Bush and Beach Adventures Limited registered on 5 th August 2022.
46. The defendant deposes further that at the time of purchasing the said properties, the company was not making any profit due to the effects of the Covid-19 pandemic the world over from the year 2019, the very year the plaintiff herein became a shareholder of the company.
47. She deposed further that she solely contributed to the development of the parcels of land, and not with proceeds from the company, by constructing a 4-bedroom house and a swimming pool and not a 3-bedroom house as alleged by the plaintiff in his affidavit. She has provided copies of the plan for the house & the handing over summary both showing that the house is 4-bedroom. She deposes further that the construction progressed when we had already separated in June, 2023.
48. For that reason, the defendant disputes the plaintiff’s assertion that he is a beneficial owner of the home where she stays with their children for reasons that the same was not built with the revenue from the company. Furthermore, she holds the house as a trustee of their children, who are minors.
49. With respect to the motor vehicles, the defendant deposes that she is in physical possession of the same and she has provided an account of how she acquired them as set out below:
a. KAN 415X, Toyota Land Cruiser. She purchased it vide a sale agreement dated 4 th November 2015 prior to her marriage to the plaintiff. It was initially registered in her name. However, she had it transferred in the name of the plaintiff in 2019 due to the establishment of NTSA which could not allow foreigners to have motor vehicles registered in their names. The defendant provided a copy of the agreement for purchase of the said vehicle dated 4 th November 2015 showing the seller as Timothy Kukuo Nyoonyo and the purchaser as Kerstin Osterreich holder of Passport Number 8062732.
b. KBP 446R, Toyota Land Cruiser: She states that she purchased this motor vehicle for EUR 23,000 vide sale agreement dated 1 st February 2019 using her resources in her Austrian account. She has produced a copy of the sale agreement dated 1 st February 2019 and a document in a language that is not English or Kiswahili and so not understood by the court and is not translated. This vehicle is however not registered in the name of the company or either the plaintiff or the defendant. No explanation has been made of why that is the position.
c. KDG 922P, Honda Step Wagon: The defendant deposes that she initially purchased motor vehicle registration number KBV 224K for KShs. 680,000/= on 22 nd September 2016 before her marriage to the plaintiff. She has annexed to her affidavit a copy of a bank statement from Diamond Trust Bank for a Euro account in the name of Kerstin Geyer dated 22 nd March 2023 and showing a transaction of the same date. Further that on 12 th November 2018, she purchased Motor Vehicle Registration No. KCS Toyota Noah at Kshs. 1,450,000 by surrendering the motor vehicle registration number KBV 224K in (a) above which was valued at KShs. 475,000 and paid the balance, KShs. 975, 000 which she deposited from her account to their joint account with the plaintiff. She has produced copies of the sale agreement and the bank statements. The deposes that she then exchanged Motor Vehicle Reg. No. KCS Toyota the valued at KShs. 950,000 PLUSS Ksh. 930,000 and acquired the M/V KDG 922P STEP WAGON. (This is matrimonial property)
d. KDL 677G, Subaru Forester: She deposes that the plaintiff entered into sale agreement over motor vehicle registration number KDL 677G Subaru Forester on behalf of a Charitable Organization of which she is a member. That she funded the purchase of the said motor vehicle at EUR 28,000/= equivalent to KShs. 3,500,000/= from her personal account. She gave the plaintiff KShs. 600,000/= on 13 th March 2023 and deposited KShs. 2,900,000 into their joint account on the 17 th March 2023 which he withdrew. She was subsequently refunded by the said organization on 22 nd March 2023. She has annexed to the affidavit a copy of the bank statement showing the transactions. She deposes further that subsequent to the acquisition of the said motor vehicle the same was given to the plaintiff as a tool to serve the said charitable organization. However, he used the same for his personal gain which prompted the organization's directorship to issue a demand letter against the plaintiff. She has annexed a copy of the warning letter from Rhein Valley Hospital Association c/o Rhein Valley Clinic.
50. The defendant deposes further that the defendant
[...truncated]
IN THE HIGH COURT OF KENYA AT KWALE
FAMILY (ORIGINATING SUMMONS) CASE NO. E001 OF 2025
LEVI MUYONGA AMUDALA............................................PLAINTIFF
VERSUS
KERSTIN AMUDALA NEE KERSTIN GEYER..................,.DEFENDANT
JUDGMENT
The Pleadings
1. The plaintiff filed the Originating Summons (OS) herein for division of matrimonial property following his divorce from the defendant. The OS is brought under Order 37 of the Civil Procedure Rules (CPR), section 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya and Articles 45(3) and 68(3) of the Constitution of Kenya and sections 2, 4, 6, 11, 12, 14 and 17 of the Matrimonial Property Act (Cap. 152) Laws of Kenya. The OS is dated 28 th April 2025. It is supported by the affidavit sworn on 28 th April 2025 by Levi Muyonga Amudala, the plaintiff.
2. The following documents were filed by the parties in the Case Tracking System (CTS):
a. Originating Summons dated 28 th April 2025 filed by Makowade Advocates for the Plaintiff. It is not signed by either the plaintiff or his advocate. This was a defect in the pleadings as Order 2 Rule 16 provides in mandatory terms that every pleading shall be signed by an advocate, or recognised agent or by the party if he sues or defends in person. I am however aware that there could be divided opinion on judicial determinations on the matter with some holding that the failure to sign a pleading is not fatal while others hold that it is.
b. Supporting affidavit sworn on 28 th April 2025 by Levi Muyonga Amudala, the plaintiff and filed alongside the OS. This was duly signed by the plaintiff and commissioned.
c. “Amended” supporting affidavit sworn on the same date of 28 th April 2025 by Levi Muyonga Amudala but filed in court on the 30 th April 2025. The content shows that it deposes to additional information not contained in the supporting affidavit. This ought to have been a supplementary affidavit and not an “amended affidavit.”
d. Memorandum of Appearance dated 12 th May 2025 and filed on 13 th May 2025.
e. Amended Originating Summons dated 13 th May 2025 and filed on 14 th May 2025. It is signed by Makowade Advocates for the Plaintiff. It could not amend a defective OS, the one dated 28 th April 2025.
f. “Amended” affidavit sworn on 14 th May 2025 by Levi Muyonga Amudala, the plaintiff and filed on the same day. The content shows that it deposes to additional information not contained in the previous affidavits. There are therefore indeed “amendments” to the affidavit.
3. I am well guided by the observation of Ouko, JA (as he then was) in Nicholas Salat v IEBC & 6 Others , CA (Application) No 228 of 2013, that the general trend, following the introduction of the overriding objective in various statutes as well as Article 159 of the Constitution , is that the courts strive to sustain rather than strike out pleadings on purely technical grounds. The learned judge explained:
“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”
4. Being guided by the above decision, and noting that the respondent has not raised any issue on the propriety of the pleadings, this court will consider the OS dated 13 th May 2025 as the one properly filed OS filed by the plaintiff and the accompanying “amended affidavit” shall be considered as the supporting affidavit to the OS dated 13 th May 2025 and therefore it will not be considered as amending the initial supporting affidavit. The unsigned OS dated 28 th April 2025 and its accompanying supporting affidavit are consequently struck off the record.
5. Since an affidavit cannot be amended and having struck out the initial OS dated 28 th April 2025 together with its supporting affidavit and considering the OS dated 13 th May 2025 to be the first one to be filed then its accompanying “amended” affidavit shall be considered as its supporting affidavit and the word “amended” in the heading shall be considered as surplusage.
6. Further to the foregoing, there is an amended Originating Summons dated 15 th May 2025 and filed on the same day. This then will be considered as the amendment to the now proper OS dated 13 th May 2025. This amended OS dated 15 th May 2025 was filed within the timelines for making an amendment once without leave and before close of pleadings as provided for under Order 8(1)(1) CPR since the defendant had not filed her replying affidavit.
7. However, the amendments were not done in line with Order 8 Rule 7(2) CPR which provides that all amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words. What the plaintiff did was to introduce new paragraphs printed in red and without retaining the old numbering but assigning new numbers to them depending on where the intended amendment was placed in the OS. Those intended amendments are quite extensive.
8. The other documents filed are:
g. The OS dated 15 th May 2025 is supported by the affidavit sworn on 15 th May 2025 by Levi Muyonga Amudala.
h. A Notice of Motion dated 15 th May 2025 was filed by the plaintiff and a supporting affidavit sworn on the same day 15 th May 2025 by Levi Muyonga Amudala and filed on the same day as the amended originating summons and the supporting affidavit. It is brought under section 1A,1B, 3A of the Civil Procedure Act and Article 45(3) and 68(3) of the Constitution of Kenya, sections 2, 4, 6, 11,12, 14, and 17 of the Matrimonial Property Act. It was filed without first withdrawing the earlier one dated 14 th May 2025. But parties subsequently agreed to abandon the notice of motion and prosecute the OS only instead.
i. An affidavit of service sworn on 19 th May 2025 by Ochieng Owade, Advocate deposing that on 19 th May 2025, he served the defendant herein with a notice of motion application and annexures together with amended Originating summons in this matter through her Advocate’s email luvunoadvo@gmail.com .
j. Replying affidavit sworn on 19 th May 2025 sworn by Kerstin Amudala Nee Kerstin Geyer, the defendant herein, an Austrian National and a resident of Diani, Kwale County in the Republic of Kenya. It was filed on 21 st May 2025. She mentions both the supporting affidavit and amended affidavit in her replying affidavit.
k. Unsigned witness statement of one Michael Daudi Gonga dated 26 th May 2025 and filed on 27 th May 2025 for the plaintiff by the firm of OG Makowade Advocates.
l. An affidavit of service sworn on 26 th May 2025 by Ochieng Owade, Advocate deposing that on 19 th May 2025, he served the defendant herein with a notice of motion application and a witness statement in this matter through her Advocate’s email luvunoadvo@gmail.com . This is in spite of the fact that the witness statement is dated 26 th May 2025.
m. A Replying affidavit sworn on 19 th May 2025 by Kerstin Amudala Nee Kerstin Geyer, the defendant herein and filed on 21 st May 2025 in response to the OS. The defendant did not raise any issue with the several Originating Summonses filed prior and I suppose that no prejudice was occasioned to her and that she was able to respondent to the amended OS dated 15 th May 2025.
n. Another replying affidavit sworn on 1 st July 2025 by Kerstin Amudala (nee Kerstin Geyer) and filed on 10 th July 2025 in opposition to the Supporting Affidavit sworn on 15 th May 2025 by the Plaintiff/Applicant in support of the Notice of Motion application. Since the parties agreed not to proceed with the notice of motion this affidavit is not useful in the proceedings.
o. A witness statement dated 22 nd July 2025 of one Shaban Juma for the defendant was filed in court on 23 rd July 2025. This statement is not useful in considering the OS because it is not a deposition under the Oaths and Statutory Declarations Act and it was not adopted under oath as evidence.
p. A further affidavit of Levi Muyonga Amudala dated 16 th July 2025 and which is not commissioned was filed on 28 th July 2025. It is deposed to be in response to the defendant’s replying affidavit sworn by Kerstin Amudala Nee Kerstin Geyer on the 19 th of May 2025. It was filed without leave of court which was against Order 2 Rule 13 of the CPR since pleadings closed 14 days after the defendant filed its replying affidavit. The plaintiff did not seek leave of court to have the further affidavit deemed as duly filed and properly on record.
q. An “amended” further affidavit sworn on 16 th July 2025 by Levi Muyonga Amudala filed on 29 th July 2025. It contains amendments, some crossed out and others written in red ink. The same was also not commissioned and was filed without the court’s leave.
r. These two affidavits therefore have two defects. First for not being commissioned before a Commissioner for Oaths appointed as provided under the Oaths and Statutory Declarations Act. Second, they were filed without leave of court because they came in after close of pleadings. The effect thereof is that they cannot be considered as affidavits but statements of the plaintiff as a witness. Unfortunately, even such a statements cannot be relied upon as evidence since the maker, the plaintiff, did not attend court to take oath and adopt the same as his evidence.
9. The parties, through their learned counsels first appeared before court on 30 th July 2025. Learned counsels informed the court that the parties wished to have the application dated 28 th May 2025 compromised and to proceed to the main hearing.
10. Learned counsel for the defendant informed the court that he wished to “amend” the replying affidavit to the Originating Summons. The court granted the defendant leave to file a further (not amended) affidavit with leave to the plaintiff to file a 2 nd supplementary affidavit.
11. The defendant indeed filed a further affidavit sworn on 19 th August 2025 and filed in court on the same day.
12. The plaintiff on his part filed a further supplementary affidavit sworn on 20 th August 2025 and filed in court on 25 th August 2025. This affidavit is shown to be commissioned by Ochieng Owade, Advocate of P. O. Box 0726092121, the same address that appears as the one for the plaintiff’s advocates through all the documents filed in court. Again, the name of the advocate, Ochieng Owade is the same that appears in the affidavits of service herein as the advocate appearing for the plaintiff. This is in violation of the proviso to section 4(1) of the Oaths and Statutory Declarations Act which states that an advocate cannot commission an affidavit for the same party for whom he is appearing as follows:
“Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding or concerned in the matter, or clerk to any such advocate, or in which he is interested.”
13. It follows that this affidavit is also defective and cannot be considered as an affidavit but a mere statement by the plaintiff. Again, it suffers the same fate that it is not admissible as evidence to be considered because the maker of the statement never attended court to adopt the statement under oath as his evidence.
14. The plaintiff’s prayers in the OS are for:
a. A declaration that the Plaintiff and Defendant jointly own the following properties, despite being registered in one or both of their names;
i. The company known as African Bush and Beach Adventures Limited in the ratio 20:80 (Plaintiff: Defendant)
ii. The entirety of property reference land parcel No. Kwale/Diani Beach Block/596, being an apartment situated at Kwale County, together with any/all developments therein. (Registered in the name of Amudala Kerstin)
iii. The entirety of property reference Kwale/Diani S.S/4692, containing by measurement Hectares (0.10 Ha) or thereabout, situated at Kwale County, together with any/all developments therein, comprising, inter alia a Permanent Bedroom Maisonette. (Registered in the name of the company known as African Bush and Beach Adventures Limited)
iv. Motor Vehicles: -
- KAN 415X Toyota Land Cruiser DO Reg/Lease- 19/07/2017; 20/07/2017 (Registered in the name of the plaintiff).
- KBP 446R Toyota Land Cruiser DO Reg/Lease- 4/04/2019; 5/04/2019 (Registered in the name of the plaintiff).
- KDG 922P Honda StepWagon DO Reg/Lease- 22/02/2022; 23/02/2022 (Registered in the name of the plaintiff).
- KDL 677G Subaru Forester DO Reg/Lease- 22/03/2023; 23/03/2023 (Registered in the name of the plaintiff).
b. An order for the sale, division and apportionment of the suit properties between the plaintiff and the defendant equally and/or equitably.
c. An order that the defendant does render a true account for the rents and profits obtained from the entirety of the stated properties, and the same be shared/divided between the plaintiff and the defendant equally and/or equitably.
d. If any of the properties have already been sold or transferred to a third party, the defendant accounts for all proceeds and that they be divided equally between the plaintiff and defendant equally and/or equitably.
e. An order that the defendant do perform all acts and/or execute all documents where necessary to transfer the plaintiff’s determined share/portion in the suit properties or in default thereof, the court orders the properties to be valued and sold under its supervision and the proceeds therefrom be shared/divided between the plaintiff and the defendant equally and/or equitably.
f. All costs of the suit to be awarded to the plaintiff.
15. The grounds in support of the OS as expounded in the affidavits of Levi Muyonga Amudala, the plaintiff are that he was married to the defendant between October 2016 and 2023 when their marriage was dissolved through divorce in Divorce Cause No. E003 of 2024. It is the plaintiff’s case that the properties listed in the grounds in support of the OS above were acquired during the pendency of their said marriage and that he contributed to their acquisition.
16. The plaintiff and the defendant are the directors/shareholders of the Company, African Bush and Beach Adventures Limited in the ratio 20: 80 respectively.
17. Among the properties jointly acquired by the plaintiff and defendant through contribution right from purchase through construction to completion is their matrimonial home, a three-bedroom house, situate on property known as reference No. Kwale/Diani S.S/4692, containing by measurement Hectares (0.10 Ha) or thereabout within Kwale County, and registered in the name of African Bush and Beach Adventures Limited. That the registration of the property in the company’s name was to protect the interests of the defendant, a foreign national, due to restrictions on holding a freehold title.
18. That notwithstanding the registration of the property in the name of African Bush and Beach Adventures Limited, the plaintiff and defendant retain beneficial ownership of the property as their matrimonial home, given their joint ownership and control of the company as directors and shareholders wherein the plaintiff and defendant hold shares in a 20:80 ratio.
19. Further that African Bush and Beach Adventures Limited constitutes matrimonial property, given its ownership structure, wherein the plaintiff and defendant hold shares in a 20:80 ratio, respectively, and all company proceeds were utilized for the benefit of the parties during the subsistence of the marriage.
20. That the plaintiff continuously contributed to the growth and development of the company by providing the motor vehicles registration numbers, Toyota Land Cruiser KAN 415X, Toyota Land Cruiser KBP 446R, Honda Step Wagon KDG 922P and Subaru Forester KDL 677G) registered in his name for the business and further performing acts of picking clients from the airport, dropping them in their accommodation venues, driving them to the parks and holiday destinations, and doing maintenance of cars.
21. That the said vehicles were and remain registered in the plaintiff’s name, having been purchased and maintained through joint contributions from both the plaintiff and defendant, with proceeds thereof utilized for the benefit of the parties during the subsistence of the marriage.
22. That the plaintiff’s financial contributions, including repeated cash deposits reflected in his bank account directly supported the Defendant and the family's joint affairs, including the business operations and acquisition of property.
23. Further that in addition to operating the business, the plaintiff also worked with a charity organization in Shimba Hills from 2016 to 2023, contributing to community development while continuing to provide for the family.
24. The plaintiff deposes that prior to his marriage to the defendant, he served as a logistical contractor for the US military in Afghanistan from 2010 to 2014, saving substantially from his employment and returning to Kenya to invest those earnings. He has annexed to the affidavit certificates of service in the US military.
25. That upon his return he initially set up a bar, restaurant, and butchery business in Donholm, Nairobi, before relocating to Diani in 2016 to build a life with the defendant. Thereafter, he established Buddy’s Bar and Restaurant in Diani and concurrently worked with a charitable organization in Shimba Hills from 2016 to 2023, investing in and supporting their family and business interests.
26. It is the plaintiff’s case that during the marriage, they jointly acquired and developed various properties now forming the subject of these proceedings and named in paragraph 14 above.
27. Although the plaintiff indicates that he has attached copies of the title deeds for the parcels of land and motor vehicle registration certificates, the only copy of title deed to land annexed is for land parcel No. Kwale/Diani S.S/4692.
28. It is the plaintiff’s position that he directly and substantially contributed financially and logistically to the acquisition and development of the above properties, and they were all treated as matrimonial assets during their marriage.
29. The plaintiff has provided as exhibits copies of bank statements in the name of Levi Muyonga Amudala/Kerstin Geyer Cur from Diamond Trust Bank A/C No. 0188408001 for the periods below:
a. 1 st June 2018 to 18 th March 2019. The total credits for this account was KShs 4,078,816/= and debits were KShs 3,359,229.15 with a balance of KShs 728,020.44/=;
b. 1 st January 2019 to 2 nd November 2023 with the opening balance as KShs 253,255.94 with credits of 3,321,928/= and debits of 3,575,203.91 and a balance of KShs – 19. 97
30. The second set of exhibits annexed to the affidavit were reviews, both positive and negative for African Bush and Beach Adventure Company for the period March 2016 to January 2020 with most of them being for 2017 and none for 2018 and one for 2019.
31. The third set of exhibits is Serena Hotels Contract rates addressed to the company with attention to Levi, the plaintiff, for the period 31 st January 2017 to July 2019.
32. He also produced receipts and e-mail correspondences for the company for the period 17 th October 2016 to 17 th January 2019.
33. There is also an unsigned general letter dated 15 th January 2019 from Kerstin Geyer as director of the company introducing Levi Muyonga Amudala as managing director since February 2015.
34. Exhibit 7 is a proforma invoice from Lota Car Sales Lt dated 17 th March 2023 in the name of Levi Muyonga Amudala for purchase of Subaru Forester Station Wagon Registration: KDL 677G.
35. He has also annexed as exhibits correspondences between the company and the Kenya Revenue Authority on the company’s tax obligations.
36. The plaintiff deposes that despite the dissolution of the marriage via Divorce Cause No. E003 of 2024, the defendant continues to have exclusive control, possession and to utilize the matrimonial properties and vehicles, including those registered solely in the plaintiff’s name, to the exclusion of the plaintiff and to unilaterally run the business without rendering any form of accounting or profit-sharing.
37. Further that the defendant, while having retained a larger shareholding in African Bush and Beach Adventures Ltd (80%), benefited from the plaintiff’s labour, investment, and sacrifice, all of which contributed to the growth and profitability of the matrimonial enterprise.
38. The plaintiff deposes that he has lived a life of sacrifice, having invested his youth, savings, and military earnings into the defendant and their matrimonial estate, only for the defendant to now unilaterally attempt to deny him a fair and equitable share in properties that were jointly acquired and developed.
39. In response to the plaintiff’s depositions, the defendant deposes that she single-handedly acquired all the properties enumerated by the plaintiff in his supporting affidavit and there was no contribution by the plaintiff to their acquisition whatsoever.
40. The defendant extensively deposes in the replying affidavit how she acquired each of the properties as outlined below.
41. To begin with, prior to 2019 when the plaintiff was offered shareholding of 20% in the company, her mother, Inger Geyer and herself were the shareholders in the company. She has provided a copy of the CR-12 dated 3 rd April 2019 showing that the company African Bush and Beach Adventures Limited was registered on 12 th January 2012 with 1000 ordinary shares of which 100 shares were held by Inger Geyer and 900 shares by Kerstin Geyer, the defendant. The two were also the directors of the company. Therefore, that the company was already in operation and developed when the plaintiff became a shareholder.
42. The defendant denies the plaintiff’s assertion that the company had its bank account in Germany, Austria or any other foreign country. She deposes that her immigration status in Kenya is on dependence pass and she had a work permit before marrying the plaintiff and she had accumulated some money in Kenya and Austria. That the little proceeds of the company were used in catering for their daily needs and it was not enough to start and run any project.
43. The defendant deposes that she offered the plaintiff, then her husband, shares of the company solely based on their relationship. That, he did not contribute anything towards the operation of the company and neither did he serve as an employee of the company. She has produced a copy of a judgment in the Mombasa ELRC E007 OF 2024, Levi Mugoya Amudala vs Kerstin Amudala Nee Kerstin Geye & another , an employment dispute where the plaintiff sued the defendant and the company, claiming his terminal dues as an employee of the company as managing director.
44. Further that none of the properties sought by the plaintiff was acquired from the proceeds of the company subsequent to when he became a shareholder in 2019. That the company ceased making profit due to the Covid-19 pandemic from 2019 when the plaintiff became a shareholder and the little profit the company made in 2019 was facilitated by other employees but not the plaintiff who was busy operating his business, Buddy's Bar & Restaurant.
45. She deposes further that she purchased land parcel Nos. Kwale/Diani/S.S/ 4693 and Kwale/Diani/S. S 4692 at a consideration of KShs. 4,000,000/= vide sale agreement dated 17 th January 2022. She has provided a copy of the sale agreement in the name of Amudala Kerstin as purchaser and Mockingbird Limited as the vendor. She deposes that being a foreigner and the titles to the properties being absolute, they could not have them registered exclusively in her name and therefore the same had to be registered in the name of the company. It is the defendant’s position that she paid for both parcels of land using funds from her own personal account. She has produced copies of bank statements from her personal bank account with Diamond Trust Bank in the name of Kerstin Geyer A/C No. 0160253001 showing the transaction dated 10 th February 2022 to her advocate, Muthee Soni Advocates and settlement of Fee Note dated 3 rd August 2022. She has also produced copies of the title deeds for land parcels Title Numbers Kwale/Diani S.S/4692 Kwale/Diani S.S/4693 each measuring approximate area 0.10 На in the name of African Bush and Beach Adventures Limited registered on 5 th August 2022.
46. The defendant deposes further that at the time of purchasing the said properties, the company was not making any profit due to the effects of the Covid-19 pandemic the world over from the year 2019, the very year the plaintiff herein became a shareholder of the company.
47. She deposed further that she solely contributed to the development of the parcels of land, and not with proceeds from the company, by constructing a 4-bedroom house and a swimming pool and not a 3-bedroom house as alleged by the plaintiff in his affidavit. She has provided copies of the plan for the house & the handing over summary both showing that the house is 4-bedroom. She deposes further that the construction progressed when we had already separated in June, 2023.
48. For that reason, the defendant disputes the plaintiff’s assertion that he is a beneficial owner of the home where she stays with their children for reasons that the same was not built with the revenue from the company. Furthermore, she holds the house as a trustee of their children, who are minors.
49. With respect to the motor vehicles, the defendant deposes that she is in physical possession of the same and she has provided an account of how she acquired them as set out below:
a. KAN 415X, Toyota Land Cruiser. She purchased it vide a sale agreement dated 4 th November 2015 prior to her marriage to the plaintiff. It was initially registered in her name. However, she had it transferred in the name of the plaintiff in 2019 due to the establishment of NTSA which could not allow foreigners to have motor vehicles registered in their names. The defendant provided a copy of the agreement for purchase of the said vehicle dated 4 th November 2015 showing the seller as Timothy Kukuo Nyoonyo and the purchaser as Kerstin Osterreich holder of Passport Number 8062732.
b. KBP 446R, Toyota Land Cruiser: She states that she purchased this motor vehicle for EUR 23,000 vide sale agreement dated 1 st February 2019 using her resources in her Austrian account. She has produced a copy of the sale agreement dated 1 st February 2019 and a document in a language that is not English or Kiswahili and so not understood by the court and is not translated. This vehicle is however not registered in the name of the company or either the plaintiff or the defendant. No explanation has been made of why that is the position.
c. KDG 922P, Honda Step Wagon: The defendant deposes that she initially purchased motor vehicle registration number KBV 224K for KShs. 680,000/= on 22 nd September 2016 before her marriage to the plaintiff. She has annexed to her affidavit a copy of a bank statement from Diamond Trust Bank for a Euro account in the name of Kerstin Geyer dated 22 nd March 2023 and showing a transaction of the same date. Further that on 12 th November 2018, she purchased Motor Vehicle Registration No. KCS Toyota Noah at Kshs. 1,450,000 by surrendering the motor vehicle registration number KBV 224K in (a) above which was valued at KShs. 475,000 and paid the balance, KShs. 975, 000 which she deposited from her account to their joint account with the plaintiff. She has produced copies of the sale agreement and the bank statements. The deposes that she then exchanged Motor Vehicle Reg. No. KCS Toyota the valued at KShs. 950,000 PLUSS Ksh. 930,000 and acquired the M/V KDG 922P STEP WAGON. (This is matrimonial property)
d. KDL 677G, Subaru Forester: She deposes that the plaintiff entered into sale agreement over motor vehicle registration number KDL 677G Subaru Forester on behalf of a Charitable Organization of which she is a member. That she funded the purchase of the said motor vehicle at EUR 28,000/= equivalent to KShs. 3,500,000/= from her personal account. She gave the plaintiff KShs. 600,000/= on 13 th March 2023 and deposited KShs. 2,900,000 into their joint account on the 17 th March 2023 which he withdrew. She was subsequently refunded by the said organization on 22 nd March 2023. She has annexed to the affidavit a copy of the bank statement showing the transactions. She deposes further that subsequent to the acquisition of the said motor vehicle the same was given to the plaintiff as a tool to serve the said charitable organization. However, he used the same for his personal gain which prompted the organization's directorship to issue a demand letter against the plaintiff. She has annexed a copy of the warning letter from Rhein Valley Hospital Association c/o Rhein Valley Clinic.
50. The defendant deposes further that the defendant
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