REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT KISII

CIVIL SUIT NO. 59 OF 2014
NAOM KWAMBOKA NYANCHOKA.………………..……….PLAINTIFF/APPLICANT
VERSUS
LAMECK KIAGE MAGAKI...……..……………………….DEFENDANT/RESPONDENT

CERTIFICATE OF URGENCY
I, BEN K. GICHANA, an advocate of the High Court of Kenya, do hereby certify that this
matter is of utmost urgency on grounds that;

1. This is an old matter that needs to be expedited to protect the integrity of the evidence
sought to be adduced.

2. That the applicant continues to suffer the effects of the accident that occurred pursuant
to the respondent’s negligence.

3. The applicant is in urgent need of medical intervention to mitigate the aforesaid effects,
which intervention can be achieved upon the expedited determination of this suit.

4. Unless this application is certified urgent and is heard on priority basis, an injustice
would result as the applicant shall have no avenue for reprieve.

DATED at KISII this 6TH day of NOVEMBER 2019

………………………………
BEN K. GICHANA & CO.
ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY: -

BEN K. GICHANA & CO.
ADVOCATES
HEMA BUILDING, 1ST FLOOR
P.O. BOX 2088-40200,
KISII.
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KISII
CIVIL SUIT NO. 59 OF 2014
NAOM KWAMBOKA NYANCHOKA.………………..……….PLAINTIFF/APPLICANT
VERSUS
LAMECK KIAGE MAGAKI...……..……………………….DEFENDANT/RESPONDENT

NOTICE OF MOTION
(Under Order 12 Rule 7 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of
the Civil Procedure Act and all enabling provisions of the laws of Kenya)

LET ALL PARTIES CONCERNED attend the Honourable Magistrate in chambers on

the…………...day of……………………2019 at 9.00 O’clock in the forenoon or soon
thereafter for the hearing of an application on the part of the applicant for orders;

1. That this application be certified as urgent and fit to be heard ex-parte.

2. That the Honourable court be pleased to reopen the plaintiff’s case which was
closed on 16th September 2019.

3. That costs of this application be provided for:

WHICH APPLICATION IS BASED ON THE GROUNDS:-

(i) That the applicant was severely injured in a road traffic accident on 25 th
March 2013 pursuant to the negligence of the respondent or his
employee/agent/driver.

(ii) The applicant consequently filed this suit on 14 th March 2014 seeking inter-
alia general and special damages.

(iii) The matter was coming up for hearing on a last adjournment on 16 th

September 2019, and unfortunately the applicant was absent.

(iv) That the applicant failed to attend court and inform her advocates thereto
due to a sudden illness.

(v) That the applicant has since recovered and is intent on pursuing her claim
that is the subject of the suit herein.

(vi) That it is in the interest of justice that the plaintiff’s case closed on
16.9.2019 be reopened and the plaintiff be heard.

(vii) That the respondent will not suffer any prejudice if the orders sought are
granted.

(viii) That the application has been brought timeously without any
unreasonable delay.
 (ix) That the prayers sought herein are for the protection of the fundamental
right of the applicant.

WHICH APPLICATION is supported by the annexed affidavit of NAOM

KWAMBOKA NYANCHOKA and other reasons to be adduced at the hearing
of this application.

DATED at KISII this 6TH day of November 2019

………………………………
BEN K. GICHANA & CO.
ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY: -

BEN K. GICHANA & CO.
ADVOCATES
HEMA BUILDING, 1ST FLOOR
P.O. BOX 2088-40200,
KISII.

TO BE SERVED UPON:
OMWENGA & CO. ADVOCATES
MASABA BUILDING, 3RD FLOOR,
P.O. BOX 4165-40200,
KISII

“If any party served does not appear at the time and place above mentioned such orders
will be made and proceedings taken as the court may think just and expedient”

REPUBLIC OF KENYA
 IN THE CHIEF MAGISTRATE’S COURT AT KISII
CIVIL SUIT NO. 59 OF 2014

NAOM KWAMBOKA NYANCHOKA.………………..……….PLAINTIFF/APPLICANT

VERSUS
LAMECK KIAGE MAGAKI...……..……………………….DEFENDANT/RESPONDENT

SUPPORTING AFFIDAVIT

I, NAOM KWAMBOKA NYANCHOKA, of P.O BOX 2088-40200, Kisii, a resident of

Kisii County within the Republic of Kenya. do hereby swear and make oath as follows;

1. THAT, I am an adult female of sound mind, the applicant herein hence conversant
with the facts of this suit.

2. THAT, I was involved in an accident on 25th March 2013 pursuant to the negligence
of the respondent or his employee/agent/driver where I suffered severe injuries.

3. THAT, I consequently filed this suit on 14 th March 2014 seeking inter-alia general
and special damages for negligence.

4. THAT, the matter was coming up for hearing on a last adjournment on 16 th

September 2019, and unfortunately I couldn’t make it to court and neither did I
inform my advocates on record of my inability to avail myself.

5. THAT, my failure to attend court and inform my advocates thereto was not
deliberate but due to a sudden illness. (Attached herein and marked N-1 are copies
of treatment notes)

6. THAT, I have since recovered and I am intent on pursuing my claim that is the
subject of the suit herein.

7. THAT, my illness was unforeseeable and I shouldn’t be punished for the same.

8. THAT, my case raises triable issues that deserve the ear and adjudication of this
Honourable Court.

9. THAT, it is in the interest of justice that my case closed on 16.9.2019 be reopened

and I be given an opportunity to be heard.

10. THAT, the respondent will not suffer any prejudice if the orders sought are granted.

11. THAT, the application has been brought timeously without any unreasonable delay.

12. THAT, what is deponed to herein above is true to the best of my knowledge,
information and belief.
SWORN at KISII by the said
NAOM KWAMBOKA NYANCHOKA ]........................................
] DEPONENT
This 6th day of November, 2019 ]
]

BEFORE ME: ]
]
]
COMMISSIONER FOR OATHS ]

DRAWN & FILED BY:

BEN K. GICHANA & CO.
ADVOCATES
HEMA BUILDING, 1ST FLOOR
P.O. BOX 2088-40200,
KISII.