THE REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT KISII

CIVIL SUIT NO. 264 0F 2020

FAITH ANDINYI SALAMBA ………..………………….....................................PLAINTIFF

-VERSUS-
FRANCIS MWANGI KAMAU …………………….….........................................DEFENDANT

PLAINTIFF’S WRITTEN SUBMISSIONS

YOUR HONOUR,

The plaintiff filed this suit against the defendant herein vide a plaint dated 23 rd June 202O
seeking inter alia General ,special damages and future medical expenses arising from a road
traffic accident which occurred on 4th day of March 2020 and as a result of which she sustained
injuries which she now seeks compensation.

EVIDENCE
The plaintiff testified vide his statement dated 23rd June 202 that on the 4th day of March 202, she
was travelling along the Kisii-Nyamira road aboard motor vehicle registration mark KCM 507 U
when near Jogoo area the driver lost control and swerved .In the process she hit herself to the
side metal and sustained the injuries below;
i. Avulsion of five lower anterior teeth
ii. Mobile five upper anterior teeth
iii. Left raccoon eye(ecchymosis)
iv. Otorrhea on the left ear
v. Chest Contusion
vi. Head injury with loss of consciousness

She further stated that she was treated at Hema Hospital,Oasis Specialist hospital and then at
Nyanchwa eye hospital and issued with treatment notes. She reported the accident at Kisii
Central Police Station where she was issued with a P3 form and later a Police Abstract.

Further to the aforementioned, she stated that her advocate caused her to be seen by medical
doctor who examined and prepared a medical report. She paid the doctor Kshs. 6,500/= for the
Medical report.
In support of her statement, the following documents were produced in court;
P3 Form
Police abstract
Medical Report
Medical-legal opinion
Initial treatment notes
Medical Receipt of Kshs. 6,500
Treatment receipts

She further stated that she will require some analgesics while occasionally in pain.

LIABILITY
From the evidence tendered, it is clearly evident that the Plaintiff did not contribute in any way
to the occurrence of the accident as the motor vehicle Reg. No. KCM 507 U which was
managed/controlled by the defendant negligently and or recklessly lost control and swerved in a
zig zag manner thereby causing the plaintiff herein to sustain serious injuries. As such, we
besiege this Honorable Court to find the defendant 100% liable for the occurrence of the
accident.

QUANTUM
a. General damages for pain & suffering.
As a result of the accident, the plaintiff sustained injuries which were described by Dr. Morebu
Peter Momanyi as severe head injury with loss of consciousness, left raccoon eye (ecchymosis),
avulsion of five upper anterior teeth, left subconjunctival hemorrhage, chest contusion, otorrhea
on the left ear, chest contusion, head injury which may complicate later with post traumatic
epilepsy or psychosis. He stated that the patient requires to be reviewed by a dental surgeon for
splinting of the mobile teeth and replacement of the lost teeth with permanent artificial ones at a
cost of approximately Kshs. 150,000/=
These injuries would ordinarily attract an award of Kshs. 3, 000 000/= as general damages for
pain and suffering.

We rely on the following authorities;

TIJAN KISILU VS BONFIDE CLEARING & FORWARDING COMPANY LIMITED &
2 OTHERS (2018) EKLR
Where at paragraph 101 on the quantum of damages, it was submitted that the medical reports
produced in evidence showed that the plaintiff sustained serious injuries that can be classified as
grievous harm but that he had made tremendous healing hence a sum of Ksh 3,000,000 general
damages in compensation would suffice. This was in reliance on the case of NRB HCC 75 OF
2012 DUNCAN KIMATHI KARAGANIA V NHGUGI DAVID AND 3 OTHERS [2016] eKLR
and NRB HCC 728 OF 2007 REGINA MWIKALI WILSON V STEPHEN M. GICHUHI AND
ANOTHER [2015] eKLR where the plaintiffs sustained more serious injuries and were awarded
4,000,000 and 2,500,000 respectively for pain suffering and loss of amenities.
In deciding the case, Justice R.e. Aburili awarded a sum of 5 million as the general damages for
the pain, suffering and loss of amenities.
Taking into account that our client had suffered severe injury as stated by the doctor, an award of
kshs 3,000,000 would suffice for our client as the general damages.

JAMES WAMBUA KIMILA VS SINOHYDRO COMPANY LIMITED & ANOTHER

(2021)
The plaintiff herein had sustained injuries to the left eye and bilateral subconjunctival
hemorrhage among other which is less severe that in the instant suit and was awarded Kshs
2,500,000.
We have taken into account the age of the above-cited authority and the depreciation as well as
inflation of the Kenyan Currency in our submissions and opine that in this instance, and also the
fact that not all the injuries in the above case are same as the instant case and therefore owing to
the gravity of the injury suffered in the instant case, an award of 3,000,000 would suffice
satisfactory.

b. Future Medical expenses

The doctor on examining the plaintiff herein opined that the plaintiff requires to be reviewed by a
dental surgeon for splinting of the mobile teeth and replacement of the lost teeth with permanent
artificial ones. We therefore urge the court to award Kshs. 150,000/= for the same as pleaded.

c. Special damages.
Your honour, the plaintiff also pleaded and proved special damages of Kshs. 23,950 /= wherein
Kshs. 17,450 /= were treatment expenses, Kshs. 6,500/= was for preparation of a medical report
and we pray that this amount be awarded as special damages.
WE HUMBLY SUBMIT

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

 …………………………………………….
M/S OUMA & OUMA ASSOCIATES
ADVOCATES FOR THE PLAINTIFFS
Advocate: OUMA A.S
Status No.LSK/2022/000400

DRAWN & FILED BY:

M/S OUMA & OUMA ASSOCIATES,
ADVOCATES,
GUSII DELUXE,
3RD FLOOR,
P.O. BOX 4011 -40200
KISII.
Email: oumaoumaassociatesadvocates@gmail.com
Phone: 0710457540/0780756419

TO BE SERVED UPON:
OCHIENG OMOLLO & CO. ADVOCATES,
PIONEER HOUSE 4TH FLOOR,
MOI AVENUE,
P.O.BOX 79507-00200,
NAIROBI.