THE REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATES COURT AT OGEMBO

CIVIL CASE NO. E165 OF 2021
SAUL MOYWAYWA…………………………………………………….……….
PLAINTIFF
=versus=
SARAH SALLY BOSIBORI BOSIRE….……………………………….……….
DEFENDANT

PLAINTIFF’S WRITTEN SUBMISSIONS

YOUR HONOUR,
The plaintiff, SAUL MOYWAYWA filed the instant suit against the defendant herein vide a
plaint dated 30TH MAY,2021 praying for judgment against the defendant for material
damage, loss of business and special damages arising from a road traffic accident that
occurred on or about 18th December, 2018 wherein the plaintiff’s motor vehicle Registration
Number KBZ 791 Y make MITUBISHI LORRY was being lawfully driven along KISII-
KILGORIS road when the driver of motor vehicle registration No KBR 666 J make
NISSAN NAVARA drove negligently and recklessly that the driver permitted the same to
violently knock the said plaintiff’s motor vehicle registration No. KBZ 791 Y and as a result
which it was extensively damage and was declared a write off.
Particulars of damage to the Motor Vehicle Registration No. KBZ 791Y, were as follows;

PART DESCRIPTION OF DAMAGE

Brake Reservoir Snapped

Front cross member Sheared off

LHS front steel Rim Bent

LHS Tyre Torn

Air Snorkel Torn

Air cleaner housing Torn /damaged

RHS front chassis frame Bent

Drag Link Bent

RHS brake pipe Torn

RHS front /suspension shackles Bent

Front beam Axle Bent

Main leaf Snapped

Steering column Snapped

Exhaust pipe Sheared off

Engine mountings Damaged

Radiator fan cowl Damaged

Engine cooling radiator Damaged

Heat exchanger radiator Torn

RHS mudguard Buckled

RHS door panel Ripped off

RHS indicator lens Damaged

RHS door glass Buckled

RHS step bar Ripped off

Front cabin suspension Damaged

Front panel Buckled

Front grill Ripped off

 Front bumper Ripped

RHS headlamp Ripped off

RHS front cabin Buckled

LHS mudguard Snapped

LHS Stone guard Torn

LHS chassis frame Bent

Cabin lock Twisted

Diver Seats Bent

Dashboard Torn

LHS shock absorber Bent

Brake /clutch /accelerator cables Bent

EVIDENCE
It is trite law in civil cases that whoever alleges has to prove. It is the plaintiff to prove his
case on a balance of probability as held in the case of Susan Mumbi vs Kefala Grebedhin
(Nairobi HCCC NO. 3321 of 1993. The burden of proof in civil cases on the balance of
probability was defined in the case of KANYUNGU NJOGU VS DANIEL KIMANI
MAINGI [2000] eKLR that when the court is faced with two probabilities, it can only decide
the case on a balance of probability, if there is evidence to show that one probability was
more probable than the other. 
PW-1 Mr. Saul Moywaywa the plaintiff herein testified before this honourable Court on
18.07.2022 where he adopted his statement dated 1/11/2020 and adduced further evidence in
support of his case. He stated that he was in court to testify about an accident that occurred
involving his registered Motor Vehicle Reg No. KBZ 791 Y. The plaintiff stated that his
motor vehicle Registration Number KBZ 791 Y make MITUBISHI LORRY was being
lawfully driven along KISII-KILGORIS road when at Kiragia area the driver of motor
vehicle registration No KBR 666 J make NISSAN NAVARA drove negligently and
recklessly hitting motor vehicle registration No. KBZ 791 Y occasioning extensive damage
to it. He deposed that his Motor Vehicle which was in its rightful lane collided with the
defendant’s Motor Vehicle Registration number KBR 666 J which was making an attempt to
escape from Police officers having been involved in an earlier accident. He informed the
court that prior to the said accident, his motor vehicle Registration Number KBZ 791 Y
generated a daily income of Kshs.30,000/= on a daily basis and was valued at an estimate of
Kshs.5,000,000/= prior to the accident.
He deposed that an assessment report was done on the damaged vehicle where the extent was
assessed at kshs.4,210,000/= and at a salvage of Kshs.1,250,000/=.He blame the driver of
Motor Vehicle Registration number KBR 666 J for causing the accident.
On cross examination, he deposed that he was not driving his motor vehicle Reg No. KBZ
791 Y on the material date having employed one Mr. Marube as his driver who had requisite
qualifications, experience and a valid license for the job. He averred that the police officers
identified the defendant’s husband as the driver of Motor Vehicle Registration number KBR
666 J.
On re-examination he affirmed that he was not at the scene of the accident at the time it
happened but was informed on what transpired by his driver, police officers and eyewitnesses
who were present when it occurred.
The plaintiff produced the following documents in support of his testimony;
 Motor vehicle copy of Records……………………………………….….EXB I
 Invoice for conducting search of motor Vehicle copy of records….….EXB 2
 Certificate of Examination and Test of Vehicle………………………….EXB 3
 Vehicle accident Assessment Report……………………………………....EXB 4
 Invoice for Payment for Motor Vehicle Accident Assessment………….EXB 5
 Police Abstract………………………………………………………...….…EXB 6
 Demand and Notice of Intention To sue………………………………….EXB 7
 Receipt (Kshs. 44,000/=)…………………………………………………..EXB 8
PW-2 Mr. David Koech, a Valuation Officer based in Kericho stated that according to the
Vehicle Accident Report dated 26.12.2018 the repair costs would amount to Kshs.
4,472,000/= and a salvage value was Kshs.1,250,000. In his testimony he also opined that the
repair value can exceed depending on market value of repairs hence the repair cost could be
higher. He also valued the pre –accident value of the plaintiff’s motor vehicle at Kshs.5,
000,000/=.
He deposed that he was paid Kshs.5, 500/= to attend court and Kshs.9, 000/= had earlier
been paid to the assessor to prepare the valuation report. In support of his averments he
produced an assessment report marked as Exb-4, a receipt of Kshs.5, 500/= marked as Exb-
9A and further receipt marked as Exb-9B.
On cross examination he confirmed that the said assessment report was dated 26.12.2018 but
was printed on 14.01.2019.He averred that the said report was produced by his colleague at
AA Kenya and was in court to produce it on behalf of AA Kenya. He informed the
Honourable Court that the repairs on the plaintiff’s motor vehicle Reg No. KBZ 791 Y would
cost Kshs.4,472,000/= the repair costs could exceed depending on the market value of the
repairs hence the repair costs could be higher. The salvage value was estimated at Kshs.1,
250,000/= being the value of the said motor vehicle as it was after the accident, this was
subtracted from the pre accident cost of the motor vehicle.
He further deposed that the costs of parts that were to be replaced are a comparison from the
open market.
On re-examination he stated that the costs of repairs vary from county to county but the same
is standardized for uniformity purposes.
PW-3 PC Owuor attached to Ogembo Police-traffic department testified that on the material
day there had been a prior accident involving Motor Vehicle reg No.KBR 666 J and a Motor
Cycle KMPB 562 L HONDA. It was his averments that the said Motor Vehicle knocked the
aforementioned Motor Cycle injuring the rider and a pillion passenger. He deposed that
together with one PC Manene they marked the accident scene and instructed the driver of
Motor vehicle Reg. KBR 666 J to accompany them to ogembo police station but said driver
insisted on driving the said motor to the police station. He testified that it was during their
journey back to the police station that Motor vehicle Reg. KBR 666 J swerved to the right
side into the oncoming lane colliding with Motor vehicle Reg. KBZ 791 Y.
On cross examination PW-3 stated that he witnessed the accident since he was there when it
occurred. He averred that the driver of Motor vehicle Reg. KBR 666 J rammed into Motor
vehicle Reg. KBZ 791 Y dying on the spot. He deposed that at the time of the accident, he
was driving a few meters from the defendant’s motor vehicle hence he had a firsthand
account of the accident.
On re-examination he deposed that he couldn’t tell the speed in which the said motor vehicles
were travelling at since he had no speed gun with him. He further reiterated that the driver of
motor vehicle Reg. KBR 666 J is to blame for the accident since he swerved to a wrong lane
disregarding lane observance and oncoming traffic.
DW-1 Mrs. Bosire testified before this Honourable court stating that the Defendant herein is
her biological daughter who works and resides in the United States of America. She further
deposed that motor vehicle Reg. KBR 666 J is registered in her daughter’s deceased
husband’s name that was driving the said motor vehicle on the material day.
On cross examination, DW-1 confirmed that she did not witness the accident and neither did
the daughter. She confirmed that the daughter was the only wife of the deceased at the time of
his death hence the rightful administrator of the deceased. A death certificate was produced
as part of their evidence to confirm the above.
Further, she confirmed that insurance monies in respect of the deceased husband motor
vehicle were paid to her by the insurance company. All evidence by DW-1 as regards the
instant accident was hearsay and we invite the court to direct as such. No eye witness was
brought forth to contradict the police officer’s evidence, which police officer saw the accident
as and when it occurred.
Notably, the defendant herein had donated power to her mother as the attorney, but was
present in the virtual session when the mother, DW-1 gave evidence.
LIABILITY
Your Honour, PW-3 adduced evidenced and or provided a firsthand account of how the
accident occurred. The said witness who is a police officer was at the scene when the
accident happened and shaded light on how the accident happened; laying blame on the
Defendant. His evidence was uncontroverted in respect of how the accident occurred which
in our view gives enough indications for this Honourable court to draw an inference. It is trite
law that an eyewitness is a person who gives direct evidence on how an event took place and
therefore his testimony has more probative value.
We opine that the plaintiff has discharged his burden of proving that on a balance of
probability the Defendant’s husband was to blame for the accident.

The plaintiff also produced a copy of records depicting that the defendant’s deceased husband
was the registered owner motor vehicle registration No. KBR 666 J, which caused the said
accident.
We therefore urge this Honourable Court to apportion liability in the ration of 100% in favor
of the plaintiff as against the defendant.

QUANTUM

a) Material damages

In HCA No. 154 of 2005 Nkuene Dairy Farmer Co-operative Society Ltd -vs- Ngacha
Ndeiya(2010) eKLR the court held;
“special damages in a material damage claim need not be shown to have actually 
been incurred, that the claimant is only required to show the extent of damage and
what would cost to restore the damaged item as near as possible to the condition it
was before the accident.”
There were no pre-accident defects noted on the plaintiff’s motor vehicle. The motor vehicle
assessment report and PW-2’s testimony made it clear that the subject motor vehicle was
uneconomical to repair due to the magnitude of the damage occasioned. The general
objective of compensation in tortious claims is restituto in integrum where the victim of tort
should be restored as far as money can do to as nearly the same position as he would have
been had the tort not been committed. According to the evidence of PW-2 and ExB-4, the
subject motor vehicle was declared a constructive total loss, it being beyond economical
repairs.
In reliance of the above stated authority and evidence adduced in court the plaintiff prayed
for Material Damage of Kshs. 3,597,100/=. The material damage has been specifically
pleaded and proven; the plaintiff was able to quantify the money he would spent to repair the
subject motor vehicle justifying Kshs. 3,597,100/= as proper award for the material damages.
b) Special damages

We rely on the principle enunciated by the Court of Appeal in the case of Hahn v Singh
[1985] KLR 216 that: -
“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 specifically pleaded special damages in the plaint and proved the same during
hearing by producing receipts. The Plaintiff did produce Receipts amounting to Kshs.
44,000/=. We pray that an amount of Kshs.44, 000/= be awarded to the plaintiff for special
damages.
Loss of Business
PW-1 the plaintiff herein testified that he used the subject motor vehicle for his transport
business and he would make an average of Kshs.30,000/= per day hence entitled to
compensation effective from the date of the accident. The said loss of user is clearly prayed
in the plaint and that claim was sufficiently proved by the plaintiff same being uncontroverted
by the defendants. In the case of Peter Njuguna Joseph =versus= Ann Moraa the
Honourable Court assessed loss of user by estimating net income despite absence of
supporting documents. We urge the Honourable to adopt 6 months period while computing
loss of user and award the plaintiff Kshs.4,320,000/= for loss of user.
CONCLUSION
Your Honour the principal espoused in law of tort is to restitute a victim of tortious act to as
much as possible to where he would have been if he had not suffered the tort. The plaintiff
has proven his case before this honourable court on a balance of probabilities required in a
civil case. The plaintiff has demonstrated with certainty that he actually suffered a loss hence
compensation ought to be considered in his favor. The plaintiff has demonstrated with
reasonable certainty that he suffered a cumulative loss of Kshs.7,961,100/=.We therefore
urge this honourable court to issue judgement in favor of the plaintiff as prayed above.

WE HUMBLY SUBMIT

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

…………………………………
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: -
KEENGWE & CO. ADVOCATES
LUTHER PLAZA, 1ST FLR, RIGHT WING,
P.O. BOX 55457-00200,
NAIROBI.
EMAIL: info@keengweadvocates.com