THE REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATES COURT AT KISII

CIVIL CASE NO. E127 OF 2022
GEOFFREY ARASA MOBEGI…………………………….…………..…….…. PLAINTIFF
=VERSUS=
JOHN MONG’ARE MANOTI………..……………….………..….……. 1ST DEFENDANT
RANA AUTO SELETION LTD………………………..….…………….2ND DEFENDANT
PLAINTIFF’S WRITTEN SUBMISSIONS

1INTRODUCTION
Your Honour,

1. The plaintiff, GEOFFREY ARASA MOBEGI filed this suit against the defendants
herein vide a plaint dated 21st February, 2022 seeking inter alia General and
special damages arising from a road traffic accident that occurred on or about
01.10.2021 wherein the plaintiff was a lawful passenger aboard motor vehicle
registration No. KCZ 007Q TOYOTA MATATU travelling along KISII-
KILGORIS road when at NYATARO AREA the driver of motor vehicle
registration No. . KCY 346S TOYOTA SUCCEED drove negligently and
recklessly hitting motor vehicle registration No. KCZ 007Q TOYOTA MATATU
causing a collusion which occasioned injuries to the plaintiff.

EVIDENCE
2. It is the cardinal principle that he who alleges must prove in cases where
negligence is alleged. This was stated with approval by the Court of Appeal in
the case of East Produce (K) Limited v Christopher Astiado Osiro, Civil Appeal
No.43 of 2001 where it was held that:
“It is trite that the onus of proof is on he who alleges and in matters where
negligence is alleged, the position was laid in the case of Kiema Mutuku Vs Kenya
Cargo Hauling Services Ltd (1991)….. in which the Court held that:‘There is as
yet no liability without fault in the legal system in Kenya, and a Plaintiff must
prove some negligence against the defendant where the claim is based on
negligence.”
3. PW1 PC Kasera testified that the accident occurred at Nyataro area along Kisii-
Kilgoris road involving motor vehicle registration No. KCZ 077Q a TOYOTA
MATATU and motor vehicle registration No. KCY 346S TOYOTA SUCCEED.
4. He averred that motor vehicle reg. KCZ 007Q TOYOTA MATATU was being
driven from Kisii-Kilgoris road general direction. The investigation officers
established that driver of motor vehicle registration No. KCY 346S TOYOTA
SUCCEED lost control hitting motor vehicle reg. No. KCZ 007Q TOYOTA
MATATU forcing it to lose control. He confirmed that Geoffrey Arasa Mobegi
who was travelling as fare paying passenger was rushed to Kisii Teaching and
Referral Hospital for treatment.
5. PW2 the plaintiff herein adduced his evidence before this Honourable court
where he stated that on 01.10 2021 at around 5:30 pm, he was travelling from
Kisii headed to Kilgoris as a passenger aboard motor vehicle reg. No. KCZ 007Q
TOYOTA MATATU. On reaching Nyataro area another motor vehicle reg. KCY
346S TOYOTA SUCCEED forcing their vehicle to lose control.
6. He testified that as a result of the accident he was injured and sustained the
following injuries;
 Blunt trauma to the left shoulder.
 Bruises to the right ribs.
 Blunt trauma to the left hip.
 Chest contusion.
 Bruises on the left rib.
7. He further averred that he was treated at Kisii Teaching and Referral Hospital,
reported the matter to Kisii Central Police Station. He stated that a medical
report was prepared by Dr.Morebu immediately filing this suit. He blamed the
driver of motor vehicle registration KCY 346S TOYOTA SUCCEED for causing
the accident. He prayed for adequate as well as cost and interest.
8. The plaintiff further produced the following documents in support of his
testimony;
 Police Abstract…………………EXB I
 Treatment notes from KTRH…EXB 2
 P3 form……………………..……EXB 3
 Medical report…………………. EXB 4A
 Medical Report Receipt ……….EXB 4B
 Treatment card from KTRH..…EXB 5
 Copy of records of NTSA …… EXB 6A
 Invoice ………………………… EXB 6B
  Demand letter…………………..EXB 7
 Bundle of medical expenses…..EXB 8
 Copy of Identity card…………..EXB 9
9. On cross examination he averred that he went to Kisii Teaching and Referral
Hospital, he reiterated the injuries aforementioned. He reiterated that he was a
passenger aboard motor vehicle reg. No. KCZ 007Q TOYOTA MATATU and
had fitted his seat belt when the accident happened. He stated that motor vehicle
registration KCY 346S TOYOTA SUCCEED was to blame for the accident.
10. PW-3 DR. Peter Morebu Momanyi a medical practitioner practicing as such
within Kisii County testified that he produced the medical report of the plaintiff
herein who was involved in a road accident on 01.10.2021 and as result he
sustained the following injuries: - Blunt Trauma To The Left Shoulder, Bruises To
The Right Ribs, Blunt Trauma To The Left Hip, Chest Contusion, and Bruises on
the left rib.
11. He stated that the plaintiff was attended to at Kisii Teaching and Referral ,he
produced a P3 form marked as EXB-3, a medical report marked as EXB-4A and a
receipt marked as EXB-4B of Kshs.6,500/= in support of his testimony.
12. On cross-examination, he indicated that he did not treat the patient; he only dealt
with him during production of the medical report. On re-examination, he
confirmed that a medical report is a summary; he indicated that he saw the
patient 2 weeks after the accident had occurred and observed that the injuries
were in the cause of healing.
13. The plaintiff gave evidence in support of his case but the defendants failed to call
any witnesses in support of their allegations hence the plaintiff’s evidence
is uncontroverted and the statement of defence remains mere
allegations. In Janet Kaphiphe Ouma & Another vs. Marie Stopes International
(Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision
in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil
Appeal No. 23 of 1997 held that:
“In this matter, apart from filing its statement of defence the defendant did not
adduce any evidence in support of assertions made therein. The evidence of the
1st plaintiff and that of the witness remain uncontroverted and the statement in
the defence therefore remains mere allegations…Sections 107 and 108 of the
Evidence Act are clear that he who asserts or pleads must support the same by
way of evidence”.
 14. In the premise, we opine that the plaintiff’s evidence therefore stands
unchallenged and uncontroverted.

LIABILITY

15. By consent of parties liability was apportioned in a ratio of 80%:20% award in

favor of the plaintiff as against the defendants.
16. In the case of Flora N. Wasike vs Jestimo Wamboko  Hancox JA reiterated that;
“Any order made in the presence and with the consent of counsel is binding on all
parties to the proceedings or action, and those claiming under them… and cannot
be varied or discharged unless obtained by fraud or collusion or by an agreement
contrary to the policy of the court…; or if the consent was given without
sufficient material facts, or in general for a reason which would enable a court set
aside an agreement.”
17. We besiege this honorable court to apportion liability at 80% in favour of the
Plaintiff as against the Defendants.

QUANTUM
General damages for pain & suffering.

18. On quantum of damages, Dr. Morebu’s medical report produced as EXB 4A

indicates that the plaintiff sustained the following injuries: -
 Blunt trauma to the left shoulder.
 Bruises to the right ribs.
 Blunt trauma to the left hip.
 Chest contusion.
 Bruises on the left rib.
19. 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. The court of
appeal herein correctly approved the holding in Stanley Maore v Geoffrey
Mwenda where it was stated: -

“Having so said, we must consider the award of damages in the light of the
injuries 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.”
20. In the case of Poa Link Services Co. Ltd & Another v Sindano Boaz Bonzemo,
HCCA NO. 17 OF 2019, Riechi J upheld the general damages of Kshs. 350,000/-
 for the plaintiff, who had injuries largely comparable to those sustained by the
Plaintiff herein, the injuries included: -blunt injury to the chest, bruises to lower
abdomen, bruises of the right hip joint, bruises of the thigh; and bruises on the
knee. 
21. 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 and also in the case of Jabane v Olenja 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.”

22. We therefore, opine that in this instance, an award of Ksh. 450. 000 would suffice
as satisfactory and rational.

b) Special damages

23. In regard to special damages, the law is quite clear that Special Damages must be
both pleaded and proved before they can be awarded by the Court.
24. The Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 where the
Learned Judges of Appeal – Kneller, Nyarangi JJA, and Chesoni Ag. J.A. – held:

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 decree of certainty and
particularity of proof required depends on the circumstances and nature of the
acts themselves.
25. The Plaintiff presented the following documents in her claim for specific
damages: - Kshs. 6500/= for medical examination, Kshs. 550/= for motor vehicle
search and kshs. 5,440/= as treatment expenses. We pray that an amount of
12,490/= 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 defendants. 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 ………………….…………………….…...2023.

…………………………………
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: gichanita@gmail.com
Tel: 0714-779-997

TO BE SERVED UPON: -
O.M Otieno & Company,
Advocates,
Shabana Building, 2nd Floor,
P.O Box 4249-40200
KISII
Tel:0725836076 or 0738661677
Email: otienoadvocates@gmail.com