REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE`S COURT AT KERICHO

CIVIL SUIT NO.E207 OF 2022
MIKE KIPYEGON KIRUI………………….………………………PLAINTIFF
=Versus=
ALEXIUS NJUE STEPHEN……………………………………….
DEFENDANT

DEFENDANT’S WRITTEN SUBMISSIONS

Your Honour, the Plaintiff sued the Defendant herein seeking

special and general damages following a road traffic accident
that occurred on 18th July, 2022. The Plaintiff claimed that on
the material day of the accident he was a lawful rider aboard
motorcycle registration number KMFP 928E at Kericho Police
Station Gate along Kericho- Nakuru road or thereabouts, when
the Defendant, so negligently drove, managed and/or controlled
motor vehicle registration number KCU 375 F that he permitted
the same to lose control and violently hit the rider as a result of
which the Plaintiff sustained severe injuries. The Plaintiff further
averred that the Defendant should be held vicariously liable for
the tortuous acts committed on the Plaintiff.
Your Honour, the Defendant filed his defence denying all the
Plaintiff’s allegations. The Defendant stated that if an accident
occurred on the said date, then the same was solely caused
and/or substantially contributed to by the Plaintiff.
ISSUES FOR DETERMINATION

(a) Who is liable for the accident?

(b) What is the Quantum of damages payable if any?
(c) Who is to bear cost?

Your Honour, we shall discuss the above issues as follows;

(a) Who is liable for the accident?

i) Evidence Analysis on Liability.

Paul Kipyegon- PW2

PW2 testified in Court and produced Police Abstract as

Plaintiff’s exhibit No.4. He testified that the accident occurred
on 18th day of July 2022 along Kericho- Town Highway opposite
Police Station. He further testified that accident involved the
motor vehicle registration number KCU 375 F driven by Erick
and Motor Cycle registration KMFP 928 E ridden by Mike Kirui.
He testified that the said motor cycle was on the inner lane when
it was knocked and as a result the Plaintiff sustained slight
injuries. On cross-examination, the police stated that he was not
the investigating officer as the investigating officer was on
transfer. He also testified that the investigating officer prepared
the sketch map but the same was never produced in Court.

Plaintiff-PW4

PW4 adopted his statement which stated that on the material day
of the accident he had lawfully parked the motor cycle
registration number KMFP 928 E outside the gate of Kericho
police station along Kericho- Nakuru Road as he was waiting for
passenger when the Defendant negligently and carelessly drove
the motor vehicle registration number KCU 375F causing it to
lose control and rammed into the motor cycle as a result he
sustained injuries. On cross-examination he testified that he was
riding the motor cycle and not parked. He further deponed that
he was not licensed to ride. He also testified the scene of
accident was a crowded but never brought any eye witnesses to
testify.

Your Honour, the question that we seek to answer is whether the

Plaintiff proved his case on the balance of probabilities standard
of proof. We align ourselves in the holding of KIRUGI & ANO. -
VS- KABIYA & 3 OTHERS [1987] KLR 347 where the Court of
Appeal stated that the burden was always on the plaintiff to
prove his/her case on the balance of probabilities, and that such
burden was not lessened even if the case was heard by way of
formal proof.

Your Honour, PW2 did not produce sketch maps to show the
point of impact of the accident. The police officer simply stated
that that the investigating officer prepared the sketch map but
never produced it in Court.

It is trite law that without sketch maps, there is no clear picture

on how the accident
occurred. In support of the foregoing, we wish to rely on the case
of Postal Corporation of Kenya & Another –Vs- Dickens
Munayi (2014) eKLR where it was held that:-
“In my view, it is only a sketch plan of the scene that could
clearly map out how the accident occurred and particularly
where the point of impact was. The lack of this crucial piece
of evidence leads me to doubt the entire evidence of PW2
and PW3. It also costs benefit to the defence case that
probably it could as well be the respondent who pulled to his
lane.”

On the same limb the Court of Appeal in Equal Distributors

versus Joel Muriu & 3 Others[2018] eKLR held that:-

“On probative value to be given to a police sketch map, we are

aware that a police sketch map for a road accident is prepared
after the event, it is not an eye witness account. However, it
carries some probative value. A police sketch map is just but an
item to be considered. In our view, the map has probative value
as it shows the relative positions of two motor vehicles
immediately after accident.”

Your Honour, PW2 in his testimony told the Court that he was
not the investigating officer and hence not an eye witness. We
associate ourselves with the holding of the Court in the case of
Benter Atieno Obonyo vs Anne Nganga & another
[2021]eKLR where the Court held that:
“PW2 a police officer attached to Nakuru police station testified
that she was not the investigating officer and produced a police
abstract which indicated that the accident was pending under
investigations. The investigating officer was not called to testify
and give court a clear picture on how the accident occurred and
who was to blame for the accident. No police file and/or sketch
map was produced to explain to the court how the accident
occurred. Clearly, the appellant failed to prove her case on
liability on balance of probabilities as was held by trial court. As
a matter of fact, the traffic police ought to have clarified how the
accident may have happened by producing the sketch maps of
the scene and any other relevant evidence.”

In similar vein, the Plaintiff who was the only eyewitness

contradicted himself as he testified to have been riding the
motorcycle at the time of accident while his statement stated
that he had parked. Your Honour, we rely on the case of John
Mwangi Kariuki vs Marble Auto Dealers Limited & 2 others
[2020] eKLR to discredit the testimony of the plaintiff. The High
Court had this to say on inconsistencies and contradictions noted
in the evidence:

“The effect of proof of contradictions is to discredit the witness

as being unreliable as his evidence in court is contrary to the
documents produced.”
We also echo the sentiments of the court in Vincent Mogeni
Nyakundi vs Naftali Wangai & another [2020] eKLR where
the court stated that:

“It is my considered view that the uncertainty created by these

contradictions did not afford the trial court reliable evidence
upon which to find the respondent liable for accident either
wholly or partially.”

In light of the foregoing, it is our submission that the Plaintiff has

failed to prove his case against the Defendant on the balance of
probabilities as required by the law and it is therefore our
submission that this case be dismissed.

(b) Quantum of damages

ii) Evidence Analysis on Quantum of Damages

Should in the unlikely event this honorable court find that the
Plaintiff is entitled to Damages, then the below is our humble
submissions on how quantum of damages should be assessed for
court’s consideration.

a. General Damages
The plaintiff pleaded the following injuries in the plaint:

a) Bruises on the left leg.

b) Chest injury.
c) Blunt trauma to the back.
d) Blunt trauma to the neck.
Robert Kipyegon- PW1
PW1 testified in court and produced P3 form as Plaintiff’s
exhibit No.1 and Treatment notes as Plaintiff’s exhibit No.2.
He testified that the Plaintiff sustained soft tissue injuries and he
was treated and discharged immediately.
Dr. Morebu Momanyi-PW2
PW2 testified in court and produced medical report as
Plaintiff’s exhibit No. 3(a) and Receipt as Plaintiff’s exhibit
No. 3(b). He testified that the Plaintiff sustained soft tissue
injuries from which he was recovering at the time of medical
examination.
Plaintiff- PW4
PW4 testified in court that he never sustained any permanent
injuries and only soft tissue injuries. He also deponed that he had
not yet healed but never produced any treatment notes.
Your Honour, the Court in Kim Pho Choo v Camden &
Islingtom Area Health Authority (1979) I, Aller 332 cited in
the case of Nancy Oseko v Board of Governors Masai Girls’
High School [2011] eKLR the court stated:-

“In assessing damages, the injured person is only entitled to

what is in the circumstances, a fair compensation, for both
the plaintiff and the defendant.”

The Court in Joseph Kimanthi Nzau vs Johnson

Macharia[2019]eKLR held that:-

“The general law is that money cannot renew a physical

frame that has been battered and shuttered. All that judges
 and courts can do is to award sums which must be regarded
as giving reasonable compensation. In the process there
must be endeavor to secure some uniformity in the general
method of approach. By common consent, awards must be
reasonable and must be assessed with moderation.
Furthermore it is eminently desirable that so far as possible,
comparable injuries should be compensated by comparable
awards. When all this is said it must be that amounts which
are awarded are to a considerable extent conventional."

In consideration of the injuries sustained by the Plaintiff herein,

we opine that a sum of Kshs. 60,000/= in general damages will
be a fair compensation to the Plaintiff herein if at all he is
entitled to general damages.

We rely on the case of HB (minor suing through mother &

next friend DKM) v Jasper Nchonga Magari & another
[2021] eKLR where Nyakundi J upheld the lower court award of
Kshs. 60,000/= for blunt injury to the head, neck, thorax,
abdomen and limbs.

We further buttress our submissions on general damages with

the case of Cosmas M Mutisya v Jap Quality Motors &
another [2018]eKLR where the Court awarded Ksh. 80,000/=
for blunt injury to the chest, bruises to right lower limb , left
upper arm and soft tissue injury to the chin.

It is crystal clear the injuries sustained by the Plaintiffs in the

above cited cases are comparable to the injuries sustained by the
Plaintiff in this matter thus an award of Kshs.60,000/= in
general damages will be sufficient, fair and equitable
compensation.

b. Special Damages
The Plaintiff pleaded the following particulars of special
damages:
a) Medical report ………………………Kshs 6,500/=
b) Treatment expenses …………………Kshs 50/=

Special Damages must be pleaded specifically and strictly

proved, else are disallowed.

Suffice it to quote from the decision of the Court of Appeal in

Hahn v Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716,
at P. 717, and 721 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
degree of certainty and particularity of proof required
depends on the circumstances and nature of the acts
themselves.”

The Plaintiff never adduced any evidence or produced any

document in court in relation to medical expenses pleaded at
Kshs. 50/= in the plaint therefore the same should not be
allowed.
The Plaintiff’s Exhibit No. 3(b) the same being an alleged
receipt for Kshs. 6500/= is not tax compliant for it is not
Electronic Tax Register (ETR) machine generated thus cannot
prove special damages as was held in the case of Leonard
Nyongesa vs Derrick Ngula Righa [2014]eKLR where the
court pronounced itself as follows:

“The position, therefore, is that a receipt for which payment

of stamp duty is required under the Stamp Duty Act is
admissible in evidence on condition that the person issuing
the same takes it for stamp duty assessment before the
court can attach any probative value to it. In my opinion, if
that is not done, the court cannot award any damages based
on such a receipt.”

Therefore the claim for special damages should not be allowed

for lack of proof within the balance of probabilities.

c) Who to bear costs of this suit?

The costs of any action, cause or other matter or issue shall

follow the event unless the court shall for good reason otherwise
direct.

In Republic vs Rosemary Wairimu Munene, Ex-Parte

Applicant Vs Ihururu Dairy Farmers Co-operative Society
Ltd the court held as follows:-

“The issue of costs is the discretion of the court as provided

under the above section. The basic rule on attribution of
 costs is that costs follow the event....... It is well recognized
that the principle costs follow the event is not to be used to
penalize the losing party; rather it is for compensating the
successful party for the trouble taken in prosecuting or
defending the case.”

In the case at hand, the Defendant is not to blame for the

accident hence the Plaintiff’s case against the Defendant should
be dismissed and costs be awarded to the Defendant.

CONCLUSION

In conclusion, we humbly submit that the Plaintiff failed to prove

his case on the balance of probabilities and thus the Defendant is
not liable at all.
If the Court determined that damages are awardable to the
Plaintiff, then an award of Kshs. 60,000/= in General Damages
will be a reasonable and fair award considering the injuries
sustained by the Plaintiff herein.
The special damages herein have neither been pleaded
specifically in the Plaint nor strictly proved by the Plaintiff by
way of production of valid tax compliant receipts of payment
therefore the prayer for special damages should fall for lack of
proof to the required standards.

We pray that the Plaintiff’s case be dismissed with costs.

That is all we wish to submit.

DATED at ELDORET this day of

2023.

KITIWA & PARTNERS

ADVOCATES FOR THE DEFENDANT

DRAWN & FILED BY:-

M/S KITIWA & PARTNERS

ADVOCATES,

DAIMA (MUPS) TOWERS, 9TH FLOOR,

UGANDA ROAD/WAIGANJO

STREET JUNCTION,

P. O. BOX 6680 - 30100,

ELDORET.

TO BE SERVED UPON:-

MUTIRIA & ASSOCIATES

ADVOCATES,

SHABAN BUILDING, 2ND FLOOR,

P.O BOX 4424-40200,

KISII.