REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT OF KENYA AT NYAHURURU

CIVIL SUIT NO. 148 OF 2021
ESTHER WANJIRU MATHENGE……….…………..……………………….....PLAINTIFF
-VERSUS-
ELKANA MBUGUA KARIUKI……………………..……….……...........1ST DEFENDANT
DANSON NDEGWA MUCHAI…………………….……………..........2ND DEFENDANT
FAIGO COMPANY LIMITED…………………….……………..............3RD DEFENDANT
KENNEDY KIARIE KAHOCHA…………………….……………..........4TH DEFENDANT

MEMORANDUM OF APPEARANCE

PLEASE ENTER APPEARANCE for KENNEDY KIARIE KAHOCHA the 4th

Defendant herein, whose address of service for purposes of this suit shall be care of
Messrs Mose, Mose & Mose Advocates, KU Plaza, 3 rd Floor, Haile Selassie Avenue, P.
O. Box 9403-00200, NAIROBI.

PLEASE NOTE that all future correspondences appertaining to the above matter
should be addressed to the said firm of Advocates.

DATED at NAIROBI this…………………….day of…………………………………....2021

MOSE, MOSE & MOSE

ADVOCATES FOR THE 4TH DEFENDANT

DRAWN AND FILED BY:-

MOSE, MOSE & MOSE ADVOCATES
KU PLAZA, 3RD FLOOR
HAILE SELASSIE AVENUE
P. O. BOX 9403-00200
NAIROBI. (MMM/XPLICO 343/2021)

TO BE SERVED UPON:-
Munene, Chege & Co. Advocates
Gate House 2nd Floor Room 202
P.O Box 12577-20100
NAKURU
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT OF KENYA AT NYAHURURU
CIVIL SUIT NO. 148 OF 2021
ESTHER WANJIRU MATHENGE….………………..……………………….....PLAINTIFF

-VERSUS-
ELKANA MBUGUA KARIUKI……………………..……….……...........1ST DEFENDANT
DANSON NDEGWA MUCHAI…………………….……………..........2ND DEFENDANT
FAIGO COMPANY LIMITED…………………….……………..............3RD DEFENDANT
KENNEDY KIARIE KAHOCHA…………………….……………..........4TH DEFENDANT

THE 4TH DEFENDANTS’ STATEMENT OF DEFENCE

1. The 4th defendant admits the contents of paragraphs 1, 2, 3, 4 and 5 of the plaint in so far
as the same are merely descriptive of the parties herein. (Save to add that the defendants’
address of service for the purposes of this suit shall be care of Mose, Mose & Mose
Advocates, KU Plaza, 3rd Floor, Haile Selassie Avenue, Post Office Box Number
9403-00200, Nairobi).

2. The 4th defendant vehemently denies in toto the contents of paragraph 6 of the plaint and in
particular that the 1st and 2nd Defendants were beneficial owner and the registered owners
of motor vehicle KCD 829B while the 3rd and 4th defendants were the registered and the
beneficial owners of motor vehicle KAR 966M and the plaintiff is put to strict proof
thereof.

3. The 4th defendant vehemently denies in toto the contents of paragraph 7 of the plaint in its
entirety and specifically the allegation that the plaintiff was travelling as a fare paying
passenger aboard motor vehicle KCD 829B at the alleged place and on the material day
as alleged or at all. In particular, the 4 th defendant categorically denies the occurrence of
the alleged accident and the particulars of negligence that Motor Vehicle Registration
Number KAR 966M was negligently driven causing and that the driver lost control and
collided with motor vehicle KCD 829B and the plaintiff is put to strict proof thereof. The
4th defendant further denies the contents of paragraph 7 of the plaint and particularized
there under as 7(a) – (h) all inclusive and puts the plaintiff to strict proof of each and
every allegation of fact and law pleaded therein. The 4th defendant denies causing the
alleged accident and /or that the passenger in that Motor Vehicle Registration Number
KCD 829B was injured as alleged and invites the plaintiff to strict proof thereof. The 4th
defendant avers that at all material times, Motor Vehicle Registration Number KAR
966M was driven prudently, reasonably, with due care, competently and that the driver of
motor vehicle Registration Number KAR 966M acted diligently and punctiliously and
adhered to the safety rules with due care, reasonableness, and in compliance with the
applicable statutory provisions and regulations by driving within the lawful and stipulated
speed limit and maintaining his lawful lane. The 4 th defendant avers that the plaintiff’s
claim is therefore misconceived, unavailable and misdirected and incompetent.

FURTHER in the alternative and without prejudice to the aforegoing, the 4 th defendant
avers that if the alleged accident occurred at all then the driver of Motor Vehicle
Registration Number KCD 829B was negligent, reckless and careless in his driving the
said motor vehicle KCD 829B on the road without due care and attention.

PARTICULARS OF NEGLIGENCE ON THE PART OF THE DRIVER, AGENT,

SERVANT AND OR OWNER OF MOTOR VEHICLE REGISTRATION NUMBER
KCD 829B
a. Driving at a speed that was excessive in the circumstances thereby
provoking and causing the alleged accident.
b. Overtaking, swerving and driving Motor Vehicle Registration Number
KCD 829B carelessly thereby provoking and causing the alleged accident.

c. Failing to maintain proper or any effective control of Motor Vehicle

Registration Number KCD 829B so as to avoid the accident thereby provoking
and causing the alleged accident.

d. Failing, refusing and /or ignoring to yield to warning signs by the

defendant more specifically life savers placed by the Defendant as required under
the traffic Rules and Regulations.

e. Failing to ensure adequate safety by employing skills, diligence, and

vigilance through stopping, slowing down, swerving and/or controlling, driving
and/or managing the said Motor Vehicle Registration KCD 829B while in the
course of duty in order to avoid the accident

f. Refusing to heed to road traffic rules, and the Highway Code thereby
provoking and causing the alleged accident.

g. Failing to invite skill and/or competence, while driving Motor Vehicle

Registration KCD 829B thereby provoking and causing the alleged accident.

h. Failing to observe safety rules and precautions expected of a

reasonable driver thereby causing and provoking the alleged accident.

i. Failing to keep any or any proper lookout while driving on the subject
road thereby provoking and causing the alleged accident.

j. Being careless and reckless and thereby provoking the alleged

accident.
k. Driving without due regard to the safety of his passengers especially
the plaintiff.
l. Driving under the influence of intoxicated substances thereby
provoking and causing the alleged accident.

m. Driving a defective motor vehicle KCD 829B thereby provoking and

causing the alleged accident.

PARTICULARS OF NEGLIGENCE ON THE PART OF THE PLAINTIFF

 a) Failing to observe due care by fastening the seat belt as provided and/or required
of a passenger thereby provoking and causing the alleged accident/incident.

b) Refusing to take heed of the road traffic rules, the Highway Code at a point where
and when it was required of him thereby provoking the alleged accident.

c) Failing to take the necessary precautions to ensure her own safety thereby
provoking and causing the alleged accident.

d) Standing and walking while inside motor vehicle KCD 829B thus causing
confusion.

4. The 4th defendant denies each and every singular allegation in paragraph 8 of the plaint in its
entirety and invites the plaintiff to strict proof thereof. The 4 th defendant categorically
denies the allegations that the plaintiff has suffered loss, damage and the particulars of
loss particularized in paragraph 8, particulars of injuries itemized as 8(a) – (d), and
particulars of special damages itemized as 8(a) – (b) all-inclusive and invites the plaintiff
to strict proof thereof. The 4th defendant avers that if ever the special damages were
incurred and/ or loss suffered which is denied, then the same cannot be attributed to the
acts and / or omissions on the part of the 4 th defendant or driver of Motor Vehicle
Registration Number KAR 966M but solely to the negligent and careless driving of
Motor Vehicle number KCD 829B and the plaintiff as pleaded in paragraph 3 above. The
plaintiff is thus disentitled to damages whether general or special as against the 4th
defendant. The 4th defendant further states that he is wrongly blamed and sued in this suit
and invites the plaintiff to strict proof of its allegations and claims.

5. The 4th defendant denies the contents of paragraph 9 that he is vicarious liable for the acts of
their drivers, employees, agents and/or servants who are solely liable for the injuries she
has suffered.

6. No demand or notice of intention to sue was given and/or issued to the 4 th defendant and if
the same was, but which is denied, it was of no consequences thereof for the reasons
pleaded in paragraph 10. The Plaintiff is therefore disentitled to costs.

7. The 4th defendant admits the contents of paragraph 11 of the plaint. However the 4th
defendant avers that the plaintiff’s claims and allegations are misconceived misdirected
and discloses no cause of action. The plaintiff’s suit as filed is fictitious and incompetent
and should be struck out with costs.

8. The jurisdiction of this Honourable Court is admitted. However the 4 th defendant denies the
allegations of negligence pleaded against then in the plaint and invites the plaintiff to
strict proof of its allegations and claims.

9. The 4th defendant does not admit the plaintiff’s witness statements, Plaintiff’s list of
witnesses and plaintiff’s list of documents accompanying the plaint and puts the plaintiff
to strict proof thereof. The 4th defendant shall require the plaintiff to produce the
originals in court and call the alleged makers of the documents to substantiate its
allegations and claims.
10. Save as specifically admitted hereinabove, the 4th defendant denies each and every allegation
in the plaint as if the same were set forth verbatim and traversed seriatim.

REASONS WHEREFORE the 4th defendant prays that the plaintiff’s suit against the 4th
defendant be dismissed with costs.

DATED at NAIROBI this…………………….day of…………………………………....2021

MOSE, MOSE & MOSE

ADVOCATES FOR THE 4TH DEFENDANT

DRAWN AND FILED BY:-

MOSE, MOSE & MOSE ADVOCATES
KU PLAZA, 3RD FLOOR
HAILE SELASSIE AVENUE
P. O. BOX 9403-00200
NAIROBI. (MMM/XPLICO 343/2021)

TO BE SERVED UPON:-
Munene, Chege & Co. Advocates
Gate House 2nd Floor Room 202
P.O Box 12577-20100
NAKURU

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT OF KENYA AT NYAHURURU
CIVIL SUIT NO. 148 OF 2021
ESTHER WANJIRU MATHENGE….………………..……………………….....PLAINTIFF

-VERSUS-
ELKANA MBUGUA KARIUKI……………………..……….……...........1ST DEFENDANT
DANSON NDEGWA MUCHAI…………………….……………..........2ND DEFENDANT
FAIGO COMPANY LIMITED…………………….……………..............3RD DEFENDANT
KENNEDY KIARIE KAHOCHA…………………….……………..........4TH DEFENDANT

DEFENDANT’S LIST OF ISSUES

1. Whether the 4th Defendant was the registered and the beneficial owner of motor vehicle
KAR 966M
2. Whether the plaintiff was lawfully travelling as a passenger aboard motor vehicle KCD
829B.
3. Whether an accident occurred on 16th January, 2021 as alleged in the Plaint
4. Whether an accident occurred between motor vehicles registration No. KCD 829B and
KAR 966M on the alleged date.
5. Who was to blame for the said accident and to what extent.
6. Whether the plaintiff sustained injuries as alleged in the plaint
7. Whether the plaintiff is entitled to any damages whether General or Special damages
8. Whether a demand letter was served upon the 4th Defendant.
9. Who should bear the costs of these proceedings?

DATED at NAIROBI this…………………….day of…………………………………....2021

MOSE, MOSE & MOSE

ADVOCATES FOR THE 4TH DEFENDANT

DRAWN AND FILED BY:-

MOSE, MOSE & MOSE ADVOCATES
KU PLAZA, 3RD FLOOR
HAILE SELASSIE AVENUE
P. O. BOX 9403-00200
NAIROBI. (MMM/XPLICO 343/2021)

TO BE SERVED UPON:-
Munene, Chege & Co. Advocates
Gate House 2nd Floor Room 202
P.O Box 12577-20100
NAKURU

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT OF KENYA AT NYAHURURU
CIVIL SUIT NO. 148 OF 2021
ESTHER WANJIRU MATHENGE……….…………..……………………….....PLAINTIFF

-VERSUS-
ELKANA MBUGUA KARIUKI……………………..……….……...........1ST DEFENDANT
DANSON NDEGWA MUCHAI…………………….……………..........2ND DEFENDANT
FAIGO COMPANY LIMITED…………………….……………..............3RD DEFENDANT
KENNEDY KIARIE KAHOCHA…………………….……………..........4TH DEFENDANT

PRE-TRIAL QUESTIONNAIRE
(ORDER 11, RULE 2)
QUESTION ANSWER (Tick One)
1 Identify the relevant track for the case FAST TRACK MULTI-
TRACK
2. Have you or your advocate made contact YES NO
with the other party or parties in these
proceedings with a view to settling the
case or to narrow down the issues?
3. Have you given full disclosures of YES NO
documents to the other party or parties
4. If not within what period can disclosure be YES NO
given?
5. Is there need for inspection of any YES NO
documents or copies thereof and if so how
soon can you do the inspection?
6. Is there need to serve interrogatories and if YES NO
so have you specified the necessary
interrogatories?
7. If defendant, have you answered the YES NO
interrogatories by attaching the
questionnaire and affidavit with the
answer?
8. Have you filed and exchanged all witness YES NO
statements?
9. Have you identified any issues which MEDICAL NO
require a written report of an expert? YES
10. Have you agreed on a single expert to YES NO
prepare joint report?
11. If the answer to question 10 is in the YES NO
negative do you require directions relating
to the payment of the expert’s fee and
expenses?
12. Have you filed and served an updated YES NO
schedule of loss and damage including
future loss and if Defendant, have you
filed and served a counter-schedule?
13. Have you filed this questionnaire together YES NO
 with the answer including the experts’
joint statement of issues including witness
statements?
14. Have you considered whether oral YES NO
evidence of any witness can be dispensed
with?
15. Have you so far discharged your duty of YES NO
co-operating with the other party or
parties in preparing the case expeditiously
including attempting to limit the issues in
dispute?
16. Are you aware that you are under an YES NO
obligation to inform the court immediately
if the case is settled?
17. Have you prepared a bundle of documents YES NO
for trial together with a case summary?
18. Are you aware that you have an obligation YES NO
to file and serve any skeleton argument to
be used in the case at least 3 days before
the hearing date?

DATED at NAIROBI this…………………….day of…………………………………....2021

MOSE, MOSE & MOSE

ADVOCATES FOR THE 4TH DEFENDANT

DRAWN AND FILED BY:-

MOSE, MOSE & MOSE ADVOCATES
KU PLAZA, 3RD FLOOR
HAILE SELASSIE AVENUE
P. O. BOX 9403-00200
NAIROBI. (MMM/XPLICO 343/2021)

TO BE SERVED UPON:-
Munene, Chege & Co. Advocates
Gate House 2nd Floor Room 202
P.O Box 12577-20100
NAKURU