Fatal Formal Kitale

REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT KITALE

CIVIL SUIT NO. 206 OF 2016
Teresia Njeri thiongo (Suing as the Legal Representatives of the Estate of the Late Samuel migatia
thiongo)..............PLAINTIFFS
VERSUS
Daniel Njoroge mbugua….........……………........................................................1ST DEFENDANT
PLAINTIFF’S HUMBLE SUBMISSIONS
May it please your Honour,
The Plaintiffs herein bring this suit as the legal representatives of the late Kennedy WayeloWapicho
claiming compensation from the Defendants as a result of his death arising out of a road traffic accident
that occurred on the 21st november, 2007.
The Defendant was served and failed to appear in court and the matter proceeded exparte. LIABILITY
PW 1, the plaintiff herein testified that the deceased was her husband and he died as result of a road
traffic ccident while he ws traveling from Nairobi.
He testified that in order for him to file the suit, he applied for and was issued with letters of
administration. He produced the letters as plaintiffexhibit 2 and the receipt worth Kshs.35,000/= for
advocates fees incurred in acquiring the same as plaintiff exhibit 12.
She produced grabts of letters of sdministration as plaintiff exhibit 1.
It was her testimony that her husband was traveling in motor vehicle registration number kwy 948 when
he was hit bby a petroleum tanker registration number kae 480 a.
It was her testimony that seaech was done to establish the owner of the motor vehicle that killed the
deceased.she produced a copy of the search records as plaintiff exhibit 2 that confirmed the defendant as
the owner and a receipt for the search for kd 500 as plaintiff exhibit 3.
She further testified that the accident was reported at the police ststion amd she produced a police abstract
as plaintiff exhibit 4.
It was her testimony that the deceased was 56 years old at the time of his death amd she produced a death
certificate as plaintiff exhibit 5.
She confirmed that the deceased worked as a mechanic amd earned kshs.20,000 per month and she
produced a payslip for the month of july and august 2007 as plaintiff exhibit 6(a) and (b) respectively.
It was her testimony that she dependend on the deceased together with her children.she ststed that there
youngest child david is in college and is not is scholl due to scholl fees issues.
She further stated that the defendant herein had been issued with a demand notice but he ignored and/or
failed to comply with the same hence necessitating filing of this suit. The demand notice was produced as
plaintiff exhibit 7.
Page 1 of 4
The plaintiff sought compensation for the death of her husband and costs of the suit.
Pw2,francis Njoroge,testified that on the material day,he was drining motor vehicle registration number
KXR 965 heading to Nakuru from Nairobi.
he ststed that a saoloon car registration number kwy 948 heading the same direction when
Your Honour, it is the Plaintiff’s humble submission that the he has proved his case against the Defendant
on a balance of probabilities and that the Defendant should therefore be held fully liable for the accident.
The plaintiff seeks redress in 4 limbs as follows;
QUANTUM
1. Loss of Dependency
The Deceased was immediately prior to his death extremely in good health and 27 years old. He stated
the deceased was a taxi driver and he would make Kshs. 20,000/= per month. We submit that Kshs.
20,000= would suffice as the deceased’s monthly earnings.
No proof of earnings was produced under this limb.
In our quest to rely on this amount under this limb, we rely on JACOB AYIGA MARUJA & ANOTHER
V SIMEON OBAYO, CIVIL APPEAL NO. 167 OF 2002 JUSTICES OMOLO, TUNOI &GITHINJI,
JJ.A as relied on in MICHAEL MURIGI KARANJA V MOHAMMED SALIM KASSAM [2015]
EKLR where it was held that
“we do not subscribe to the view that the only way to prove thes profession of a person must be
by the production of certificates and that the only way to prove earnings is equally the
production of documents. That kind of stand would do a lot of injustice to very many Kenyans
who are even illiterate, keep no records and yet earn their livelihood in various ways. If
documentary evidence is available, that is well and good. But we reject any contention that
only documentary evidence can prove these things.”
In view of the above remarks, we humbly submit that the Honourable court applies the amount of Kshs.
20,000/= as the deceased’s monthly income under this limb.
We submit for a multiplier of 43 as the number of years he was expected to work given that the deceased
was not restricted by the official retirement age official which is 60 years.
We also submit for a dependency ratio of 2/3 since both his parents and 5 other younger siblings
depended on him at the time of his death.
Thus;
Kshs 20,000/= x 2/3 x 43 x 12 = Kshs.6,880,000=
2. Pain and Suffering
The Deceased died in hospital as due to his injuries after the occurrence of the accident. He must have
undergone extreme pain and suffering. We therefore submit that an award of Kshs. 100,000/= will be
reasonable under this limb.
Page 2 of 4
We rely on;
FRANCIS WAINAINA KIRUNGU (SUING AS PERSONAL REPRESENTATIVE OF THE

ESTATE OF JOHN KARANJA WAINAINA) DECEASED V ELIJAH OKETCH ADELLAH
[2015] eKLR
Where Kshs. 50,000/= was awarded where the deceased died a few hours after the occurrence of the
accident.
Considering factors of inflation and the age of this authority, we submit that an award of Kshs. 100,000/=
will be sufficient compensation under this limb.
3. Loss of Expectation of Life
The Deceased was aged 27 years at the time of his death. Under this limb, a conventional award of Kshs,
200,000/- would therefore be reasonable.
We rely on; VIOLET JEPTUM RAHEDI V ALBERT KUBAI MBOGORI [2013] eKLR
In this case Kshs. 150,000/= was awarded for loss of expectation of life and the deceased person was 44
years old.
Considering factors of inflation and the age of this authority, we submit that an award of Kshs.
200,000/= will be sufficient compensation under this limb.
4. Special Damages
The Plaintiff also claims for special damages of Kshs.103,175 for application for grant, copy of records,
police Abstract and funeral expenses plus costs and interests.
This claim therefore works out as follows;
a. Loss of Dependency Kshs. 6,880,000/=

b. Pain and Suffering Kshs. 100,000/=
c. Loss of Expectation of Life Kshs. 200,000/=
d. Special Damages Kshs. 103,175/=
Total Kshs. 7, 283, 175/=
We humbly submit that your Honour award the Plaintiffs herein a sum of Kshs. 7, 283, 175/=
plus costs and interests of this suit.
We so pray.
Page 3 of 4
DATED at NAKURU this…………………………...day of………………………………………2018
GEKONG’A & COMPANY

ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY;

GEKONG’A & COMPANY,
ADVOCATES.
P.O BOX 14594-20100,
NAKURU.
Page 4 of 4

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REPUBLIC OF KENYA

IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT KITALE

PLAINTIFF’S HUMBLE SUBMISSIONS

May it please your Honour,

She produced grabts of letters of sdministration as plaintiff exhibit 1.

The plaintiff seeks redress in 4 limbs as follows;

2. Pain and Suffering

FRANCIS WAINAINA KIRUNGU (SUING AS PERSONAL REPRESENTATIVE OF THE

3. Loss of Expectation of Life

This claim therefore works out as follows;

a. Loss of Dependency Kshs. 6,880,000/=

GEKONG’A & COMPANY

DRAWN AND FILED BY;

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