REPUBLIC OF KENYA

IN THE PRINCIPAL MAGISTRATE’S COURT AT TIGANIA

CIVIL SUIT NO. E057 OF 2023

WEDDY MUKIRI (Suing as mother and next of kin of HONEST MUNENE

(Minor)………………………………………………………………….………..…..PLAINTIFF
VERSUS
PATRICK KARITHI M’NARANGWI………..………………………..….DEFENDANT

PLAINTIFF’S WRITTEN SUBMISSIONS

Your Honor, hereunder are the humble submissions of the Plaintiff.

I. BRIEF INTRODUCTION
The Plaintiff approached this Honorable Court via a Plaint filed in court on the 14 th
September, 2023 seeking the following prayers:-

a) General damages and Special damages at Kshs. 76,658/=

b) Costs of this suit plus interests.

Your Honor it is the Plaintiff’s case was that on or about 22 nd August, 2023 HONEST
MUNENE was lawfully walking on the pedestrian path at Kinoria along Ruiri –
Kirindine road when the defendant, his driver, servant and/or agent so negligently,
carelessly and/or recklessly drove, controlled and/or managed motor vehicle
registration number KCN 981 H causing it to veer off the road and hit the Plaintiff who
sustained serious injuries.

The Defendant entered appearance on 15 th September, 2023 and filed their Defence on
the same date which was full of mere denials and attempted to shift blame to the
Plaintiff.

The matter was set down for hearing on the 26 th January, 2024 whereby the Plaintiff
called his witnesses to testify in aid of his case whereas the Defence called no witness
and thereafter the parties closed their respective cases hence the instant submissions.
 II. LIABILITY
Your Honor, under this head a consent was recorded in favor of the Plaintiff as against
the Respondent in the ratio of 90:10 and we thus pray that the honorable court adopts
the same.

III. PAIN AND SUFFERING

Your Honor, the Plaintiff and his witnesses stated that the accident the deceased did not
die in the spot thus the deceased must have undergone immense pain and suffering for
the few hours she remained alive after the occurrence of the accident.

Your Honor, under this head we propose a sum of Kshs.500,000/= as reasonable and
adequate amount considering the nature of the injuries the deceased sustained and the
period of time the deceased remained alive before succumbing to the injuries.

We rely on the case of Benedata Wanjiku Kimani Versus Changwon Cheboi &
Another(2013) E Klr where the court stated as follows:-

“Higher damages will be awarded if the pain and suffering was prolonged
before death”

In its judgment in the year 2013 in the aforesaid case the court stated as follows:-

“…a conventional sum which has increased over the years from Kshs
10,000/= to Sh 100,000/= currently”.

Your Honor, the conventional value was Kshs.100, 000/= 11 years ago and that in the
said case the deceased died instantly.

Your Honor, it is our humble submission that a figure of Kshs.500, 000/=under this
head, where the deceased died a few hours after the occurrence of the accident is
reasonable and owing to the inflation rate in our economy and we humbly pray to be
awarded the said amount.

IV. LOSS OF EXPECTATION OF LIFE

Your Honor, the deceased died at the age of 63 years and that he was full of life and very
healthy and that he could have lived a long and happy life capping at approximately 100
years in company of his husband and children.

We are guided by the case of Richard Njoki Wahome (Suing As Administrator

Of The Estate Of The Late Wahome Mutahi (Deceased) Versus Attorney
General & 2 Others[2015] EKlr herein Justice R.Ougo awarded Kshs. 1,000,000
under this head holding as follows:-

“The deceased is said to have been aged 47. He was of good health and
would have lived for another 28 years. I will give Kshs.1,000,000/= as life
expectation for him”.

Your Honor, putting into consideration that the above mentioned case was decided
almost 8 years ago we submit that an award of Kshs. 1, 000,000/= would be reasonable
in this case.

V. LOSS OF DEPENDANCY

a. Multiplicand

Your Honor, at the time of the accident the deceased was aged 63 years and she was
happily married to John Mbaingoni M’marimba and was blessed with six (6) children
namely Elijah Murira Eringo, Faith Kananu Kasavuli, Peninah Nkirote Baingoni, Joseph
Kirianki Baingoni, Isaack Mwenda Baingoni and Dorothy Mwendwa Baingoni.

Your Honor, during the hearing the Plaintiff testified whereby he produced exhibits and
among them was death certificate that indicated that the deceased died aged 63 years.

That prior to the deceased’s premature death, she was a business woman selling cereals
whereby she earned Kshs 45,000/= monthly as averred in the plaint.

The deceased had seven (7) dependants who depended on him and that his estate has
suffered loss and damages as a result of the demise of the deceased.
In light of the above we submit that the sum of Kshs.300, 000/= is reasonable.

It cannot be argued that the plaintiff did not prove the deceased’s earnings since he
produced a business permit to that effect and the same notwithstanding, the hereunder
authorities relied on by the Plaintiff would suffice.

In the case of JACOB AYIGA MARUJA & ANOTHER VERSUS SIMEON

OBAYO[2005] e KLR the court stated as follows:-
“…We do not subscribe to the view that the only way to prove the
profession of a person must be by the production of certificates and that
the only way of proving 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 EMBU HCC 10 OF 2011 PAUL N.KINYANJUI VERSUS ESTHER

W.MBUGUA[2005] Honorable Justice F.MUCHELULE restated the holding in the
case of JACOB AYIGA MARUJA & ANOTHER VERSUS SIMEON
OBAYO[2005] e KLR:-

“Proof of earnings and profession is not only by way of documentary

evidence as that would cause a lot of injustice to Kenyans who are
illiterate, keep no records and earn their livelihood in various ways.
Having established that proof of earnings can be achieved through other
evidence, I am of the considered opinion that the evidence of pw-1 and pw-
3 was sufficient”.

b. Multiplier

The deceased died at the age of 63 years and she was healthy business woman prior to
the occurrence of the accident.

Your Honor, there being no vicissitudes of life that would have curtailed the active
working life of the deceased we hereby ask this Honorable Court to adopt the multiplier
of 50 years.

c. Dependency Ratio.

Your Honor, we submit that 2/3 be adopted as the dependency ratio. It was the evidence
of the Plaintiff that the deceased was providing for him and his children and that they
wholly depended on him.
In the case of Benedata Wanjiku Kimani Versus Changwon Cheboi &
Another(2013) E Klr(Supra) the court stated as follows while addressing the issue
of dependency ratio:-

The extent of dependency is a question of fact to be established in each

case ..”

“In determining the right multiplier, the right approach is to consider the
age of the deceased, the balance of earning life, the age of dependants, the
life expected, length of dependency, the vicissitudes of life and factor
accelerated by payment in lump sum”

Your Honor, the definition of “dependency” given in Section 2 of the Insurance

(Motor Vehicle Third Party Risks) Amendment Act is:-

“That part of the deceased’s earnings that he/she spent on the maintenance
or financial support of his/her dependants.”

In the case of United Millers Ltd Vs Yano Omoro Oindo [2007] Eklr the court
stated as follows:-

“Regarding the claim under fatal accident (sic) Act, I am of the view that the
deceased being unmarried and the applicant, being a surviving parent
having provided his particulars of dependency as required under Section 8
of the Act, was entitled to the award under this heading.”

Paragraph four (4) of the Plaintiff’s Plaint shows that the deceased’s dependants are
seven (7), the same is supported by the Chief’s letter produced.

Under Section (4) (1) of the Fatal Accidents Act, it is clear who a dependant for whose
benefit a claim under the said Act can be brought. It provides as follows:-

“Every action brought by virtue of the provisions of this Act shall be for the
benefit of the wife, husband, parent and child of the person whose death
was so caused, and shall, subject to the provisions of section 7, be brought
by and in the name of the executor or administrator of the person deceased;
and in every such action the court may award such damages as it may think
proportioned to the injury resulting from the death to the persons
respectively for whom and for whose benefit the action is brought; and the
amount so recovered, after deducting the costs not recovered from the
defendant, shall be divided amongst those persons in such shares as the
court, by its judgment, shall find and direct:Provided that not more than
one action shall lie for and in respect of the same subject matter of
complaint, and that every such action shall be commenced within three
years after the death of the deceased person.”
Your Honor, having proved the dependants of the deceased, we urge this Honorable
Court to find and hold that the proper dependency ratio to adopt is 2/3.

We now compute the loss of dependency as follows:-

300,000x50x12x2/3=Kshs.12,000,000/=

Your Honor, we humbly request this Honorable Court to award the above calculated
figure of Kshs.12,000,000/= as the general damages for loss of dependency.

VI. SPECIAL DAMAGES

Your Honor, it is trite law that special damages must be specifically pleaded and proven.
The special damages in this case were particularized under paragraph 6 of the plaint.

During the hearing of the Plaintiff’s case, the Plaintiff produced a bundle of receipts in
the sum of total of Kshs. 362,368/= the same being funeral expenses, fees for obtaining
limited grant, fees for issuing of demand letter and motor vehicle search fees among
others.

At the hearing none of the receipts proving the special damages was objected to and all
receipts bore the revenue stamp in compliance with the Stamp Duty Act.

We pray that the same be found as proved as it was not challenged.

VII. COSTS OF THE SUIT PLUS INTEREST

Your Honor, the Defendant was properly served with statutory demand and notice of
intention to sue however, failed to respond and make good the claim herein therefore
necessitating this suit.
Your Honor, we humbly submit that in the circumstances that the Plaintiff is therefore
entitled to the costs of this suit in full.

Your Honor, we urge you to proceed and award the same as it is also trite that costs
follow the events.

We also pray that Your Honor, be pleased to grant interest at court rates on special
damages from the date of filing of this suit and interest on general damages and costs of
the suit from the judgment date until payment in full.

We rely on the following judicial authorities:-

a. BENEDATA WANJIKU KIMANI VERSUS CHANGWON CHEBOI &
ANOTHER(2013) e KLR
b. CHARLES OUMA OTIENO & ANOTHER -VS- BENARD ODHIAMBO
OGECHA (SUING AS BROTHER AND LEGAL REPRESENTATIVE AND
ADMINISTRATOR OF THE ESTATE OF THE LATE OSCAR ONYANGO
OGECHA (DECEASED) [2014] e KLR
c. JAMES GAKINYA KARIENYE & ANOTHER (SUING AS THE LEGAL
REPRESENTATIVE OF THE ESTATE OF DAVID KELVIN GAKINYA
(DECEASED) V PERMINUS KARIUKI GITHINJI [2015] eKLR
d. ROGER DAINTY v MWINYI HAJI & ANOTHER [2004] eKLR
e. MARKO MWENDA VS. BERNARD MUGAMBI & ANOTHER NAIROBI
HCCC NO. 2343 OF 1993
f. AGNES MUTINDA NDOLO & ANOTHER V MBOYA WAMBUA & 2
OTHERS [2017] Eklr

VIII. CONCLUSION
Your Honor, we pray that you may be pleased to enter judgment in favour of the plaintiff
in the following terms:-
1. Liability 100% in favor of the Plaintiff
2. Pain and Suffering Ksh.500, 000/=
3. Loss of expectation in life Kshs.1,000.000/=
4. Loss of dependency Kshs.12,000,000/=
5. Special damages Kshs.362,368/=as proved and pleaded.
TOTAL= Kshs.13, 862,368/=

This is our innocuous submissions for and on behalf of the Plaintiff.

We humbly pray.

DATED AT MERU THIS…………………DAY OF…………………………..……………………..2024.

…………………………………………
NGUNJIRI MICHAEL & CO.
ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY:

NGUNJIRI MICHAEL & CO.
ADVOCATES
2ND FLOOR REHEMA PLAZA,
KIRUKURI STREET,
P.O BOX 455– 60200
MERU.
CELL: 0720167120

TO BE SERVED UPON;
URBANUS K & ASSOCIATES ADVOCATES
P.O. BOX 1985- 00200
NAIROBI