Submiss 920 of 2019

THE REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT AT KISII

CIVIL CASE NO. 920 OF 2019
COLLINS MOKAYA OBWONGE (Minor suing through father and next friend EDWIN
MOKAYA OCHIENG………………………………………………….………. PLAINTIFF
ENOCK NDEMO ARORI………………………………………….………. DEFENDANT
PLAINTIFF’S WRITTEN SUBMISSIONS

YOUR HONOUR,
The plaintiff, Collins Mokaya Obwonge filed this suit against the defendant herein vide a
plaint dated 21st November,2019 seeking inter alia General and special damages arising from
a road traffic accident that occurred on or about 31st July, 2019 wherein the plaintiff was a
fare paying passenger aboard motor vehicle registration No. KAR 443 U TOYOTA
MATATU travelling along KISII-NYAMIRA road when the driver of motor vehicle
registration No. S 646 L TOYOTA PREMIO drove negligently and recklessly and hit
motor vehicle registration No. KAR 443 U TOYOTA MATATU causing a collusion which
occasioned serious bodily injuries to the plaintiff.
The plaintiff sustained the following injuries;
 Bruises on the left forearm
 Epistatis
 Blunt trauma to the frontal region
 Blunt trauma to the right knee
 Blunt trauma to the left knee
EVIDENCE
It is trite law in civil cases that whoever alleges has to prove. It is the plaintiff to prove her
case on a balance of probability as held in the case of Susan Mumbi vs Kefala Grebedhin
(Nairobi HCCC NO. 3321 of 1993. The plaintiff adduced evidence before the court during
hearing through the testimony of two witnesses, the plaintiff and Dr. Morebu. The plaintiff
stated that he was a fare paying passenger aboard motor vehicle registration No. KAR 443 U
TOYOTA MATATU travelling along KISII-NYAMIRA road when the driver of motor
vehicle registration No. S 646 L TOYOTA PREMIO drove negligently and recklessly and
hit motor vehicle registration No. KAR 443 U TOYOTA MATATU causing a collusion. He
said that the driver of motor vehicle registration No. KAR 443 U TOYOTA MATATU tried
to swerve to avoid being hit but he could not escape the effect of motor vehicle registration
No. S 646 L TOYOTA PREMIO which was driven recklessly and negligently.
The plaintiff further stated that he had blunt injuries on his knees and he was also hit by a
“chuma” on his face. He was rushed to Kisii Teaching and Referral Hospital where he was
treated and discharged. He later went to Kisii Traffick Base with a P3 form and was issued
with a duly filled Police Abstract. He said that he was still feeling pain on his knees.
The plaintiff further produced the following documents in support of his testimony;
 Treatment notes…………………PEXB I
 P3 form……………………….…PEXB 2
 Police abstract……………………PEXB 3
 Medical Report…………………. PEXB 4A
 Medical Report Receipt………… PEXB 4B
 Copy of Records……………….…PEXB 5A
 Receipt of 550/=………………… PEXB 5B
 Treatment Receipt (Kshs. 740)……. PEXB 6
The plaintiff also called a witness, Dr. Morebu who stated that he examined the plaintiff and
the injuries sustained were as per the medical report. He stated that they were soft tissue
injuries. His testimony was consistent with that of PW1.
LIABILITY
Your Honour, the Plaintiff produced a Police Abstract, PEXB 3 which provided sufficient
proof that he was a lawful passenger aboard motor vehicle registration No. KAR 443 U
TOYOTA MATATU. Therefore, he did not contribute in any way to the occurrence of the
said accident. This position was stated in H. Young & Company E.A Ltd v Edward Yumatsi
[2016] eKLR,
“The respondent was a passenger in the suit motor vehicle and could not therefore be said to
have caused the accident or contributed to it in any way whatsoever.”
The plaintiff also produced a copy of records from the Registrar of Motor Vehicles which
proved that the defendant was the registered owner motor vehicle registration No. S 646 L
TOYOTA PREMIO, which caused the said accident. We therefore urge this Honourable
Court to apportion liability in the ration of 100% in favor of the plaintiff as against the
defendant.
QUANTUM
a) General damages for pain & suffering.
As a result of the accident the plaintiff sustained injuries which were described by Dr.
Morebu as severe bodily injuries i.e bruises on the left forearm and blunt trauma to the frontal
region, right knee and left knee. The plaintiff is still feeling bodily pain and requires to us
analgesics occasionally as stated by him and observed by Dr. Morebu.
Comparable injuries should as far as possible be compensated by comparable awards albeit

bearing in mind that no two cases are exactly alike. This was stated in the case of Gianchore
Tea Factory Co. Ltd v Peter Ogamba Otao [2021] eKLR. The court of appeal herein
correctly approved the holding in Stanley Maore v Geoffrey Mwenda [2004] eKLR where
it was stated: -
“……Having so said, we must consider the award of damages in the light of the
0injuries sustained. It has been stated now and again that in assessment of
damages, the general approach should be that comparable injuries should, as far as
possible, be compensated by comparable awards keeping in mind the correct level of
awards in similar cases.”
In Johnstone Mutuku Kilango v Elijah Wambua [2016] eKLR, the plaintiff sustained a
blunt trauma on the right knee, blunt trauma on the right ankle, 3x4 cm bruises on the right
shin just below the knee, blunt trauma on the right hip and blunt trauma on the lower back.
The Doctor concluded his report by stating that the appellant received soft tissue injuries and
full healing was expected with no permanent disability. The high court upheld award of Kshs.
250,000 for General damages.
In the case of Francis Ochieng & Another vs Alice Kjimba [2015] eKLR, Civil Appeal No.
23 of 2015, Judge Majanja made an award of Kshs. 280,000/= for multiple soft tissue injuries
after considering inflationary trends.
The other principle that we have considered in regard to general damages is inflation and
passage of time. This was so held in the case of Ugenya Bus Service v Gachoki [1982]
eKLR and also in the case of Jabane v Olenja [1986] KLR 661 where the court stated: -
“In addition, the current value of the shilling and the economy has to be taken into
account and although astronomical awards must be avoided, the court must ensure
that awards make sense and result in fair compensation.”
We therefore, opine that in this instance, an award of Ksh. 350. 000 would suffice as
satisfactory and rational.
b) Special damages
we rely on the principle enunciated by the Court of Appeal in the case of Hahn v Singh
[1985] KLR 216 that: -
“Special damages must not only be specifically claimed (pleaded) but also strictly
proved for they are not the direct natural or probable consequence of the act
complained of and may not be inferred from the act. The degree of certainty and
particularity of proof required depends on the circumstances and nature of the
acts themselves.”
The plaintiff specifically pleaded special damages in the plaint and proved the same
during hearing by producing receipts. These included KSHS. 6500/= for medical
examination, Kshs. 550 for motor vehicle search and kshs. 740 for treatment. We pray
that an amount of 7790/= be awarded to the plaintiff for special damages.
CONCLUSION
Your Honour, the injuries suffered by the plaintiff cannot be equated to a mere denial by the
defendant. The plaintiff has proven his case on a balance of probabilities in regards to
occurrence of the injuries, liability and the quantum. It is trite law that money cannot renew
a physical frame that has been battered and shattered. However, all that judges and courts can
do is to award sums which must be regarded as giving reasonable compensation to the
plaintiff.
we pray that this matter be determined in favor of the plaintiff.
WE HUMBLY SUBMIT
DATED at KISII this……………...day of ………………….…………………….…...2022.

…………………………………
Mochiemo Gichana & Company
Advocates For the Plaintiff
DRAWN AND FILED BY: -
Mochiemo Gichana & Company Advocates,
Ouru Towers, 6th Floor, Right Wing,
P.O Box 4542-40200,
KISII.
E-mail: [email protected]
Tel: 0714-779-997
TO BE SERVED UPON: -
Kimondo Gachoka & Company Advocates
Hazina Towers,10th Floor,
Monrovia Street
P.O Box 35191-00200,
Nairobi
Email; [email protected]
Tel:0730-1320201

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Submiss 920 of 2019

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THE REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATES COURT AT KISII

PLAINTIFF’S WRITTEN SUBMISSIONS

Comparable injuries should as far as possible be compensated by comparable awards albeit

DATED at KISII this……………...day of ………………….…………………….…...2022.

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