REPUBLIC OF KENYA

IN THE PRINCIPAL MAGISTRATE’S COURT AT RONGO

CIVIL SUIT NO. 56 OF 2021

JANE PAULINE AKINYI (Minor suing through next friend BRENDER

ADINDA…………………………………..………............PLAINTIFF/RESPONDENT

VERSUS
WILSON MBITHI…..…………....…..…………….…........ DEFENDANT/APPLICANT

AND
DAVID OCHIENG ORIATO…………………………………………………THIRD PARTY
THIRD PARTY’S STATEMENT OF DEFENCE

1. Save as herein expressly admitted, the third party denies each and every
allegation of fact and/or law made in the Defendant’s third party notice as if
the same was set forthwith and traversed seriatim.

2. The Third Party denies in toto the allegations at paragraph b that the motor
cycle was managed in a very negligence manner hence caused or
substantially contributed to occurrence of the said accident and the
defendant shall be put to strict proof thereof.

3. The Third Party denies the Defendant’s claim that he is liable to defendant’s
costs of the suit and the defendant shall be put to strict proof.

4. The allegations at paragraph d of the defendant’s Third Party Notice are

denied in toto and strict proof is invited from the defendant.

5. The Third Party denies the allegations at paragraph e of the Third Party
Notice attributed to him and the particulars of negligence serialized thereat
on the negligence on the part of the rider and/or owner of the motorcycle
registration no. KMEL 349G.

6. Further to paragraph 5(above), the Third Party avers that the defendant was
charged of careless driving and paid fine to that effect.

7. Without prejudice to the foregoing, the Third Party contends that, if the said
accident ever occurred then the same was caused solely and/or
substantially contributed by the negligence on the part of the Defendant.

PARTICULARS OF NEGLIGENCE ON THE PART OF THE DEFENDANT,

HIS DRIVER, SERVANT, AGENT, ASSIGNEE OR EMPLOYEE
 a. Failing to keep proper or any look-out or to have sufficient or any
regard for the motorcycle rider.
b. Failing to steer the said motor vehicle in time sufficient enough to
keep the same from hitting the motorcycle which the motorcycle
rider was riding on.
c. Failing to give adequate or any warning of its hazardous approach.
d. Failing to heed to the presence of the Motorcycle the motorcycle
rider was riding on, on the said road.
e. Failing to exercise or maintain proper, effective or any control of
the Defendant’s said Motor Vehicle.
f. Driving at a speed which was excessive in the circumstances.
g. Failing to prevent the said motor vehicle from hitting the
motorcycle rider.
h. Failing to brake, stop, slow down, swerve or in any other way
manage or control the said Motor Vehicle as to prevent the same
from hitting the Motorcycle rider.
i. Driving a defective motor vehicle.
j. Otherwise causing the accident.
So far as maybe necessary, the Third Party will rely upon the Rule of
Res Ipsa Loquitur, the Highway Code, and the Provisions of the
Traffic Act Cap.403, Laws of Kenya.

REASONS WHEREFORE: The Third Party prays that the Defendant’s

Third Party Notice be struck out, the defendant be held liable vicariously
or otherwise for the tortuous acts/omissions committed on him and
thereafter Judgment be entered against the Defendant.

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

M/S OUMA & OUMA ASSOCIATES

ADVOCATES FOR THE PLAINTIFF
ADVOCATE: OUMA A.S
STATUS NO. LSK/2022/0405

DRAWN & FILED BY:

M/S. OUMA & OUMA ASSOCIATES,
ADVOCATES,
GUSII DELUXE, 3RD FLOOR,
P.O. BOX 4011 -40200,
KISII.
Email:oumaoumassociatesadvocates@gmail.com
Phone: 0780 -756- 419 / 0710–457 -540
TO BE SERVED UPON:
OMWENGA & CO. ADVOCATES,
MASABA BUILDING, 3RD FLOOR,
P.O.BOX 4165-40200,
KISII.
Email: info@omwengacompany.com
Tel No. 0722929285