OWANO AND COMPANY ADVOCATES
COMMISSIONER OF OATHS
M. OWANO, LL.B (Hons) Moi, Dip in Law (KSL)
7th Floor, Reinsurance Plaza, Moi Avenue, P.O. Box 9043 Nairobi, Kenya
Tel: 0701159797 Email: omarbungale93@gmail.com
Our ref: M4D/CC/002/014
Your Ref:
Date: 31st March 2014
CHIEF EXECUTIVE OFFICER
REALITY INSURANCE COMPANY LIMITED
P.O. BOX 337-00100
NAIROBI
Dear sir/madam
Re: DEMAND FOR COMPENSATION OF MRS. FURAHA MINGI
We act for the above named person [hereinafter referred to as our client] under whose
instructions we write to you and state as follows:
That on 1st April 2013 our client was travelling from Nairobi to Mombasa in a bus
owned by Daima Travellers Limited, a Private Limited company incorporated under the
companies act cap 486, laws of Kenya.
The bus registration number is KBW 443Y was driven by one Mkosa Nidhamu; a driver
of Daima Travellers Limited. The aforesaid driver decided to overtake on a sharp bend
with a sign “do not overtake” and as a result collided with an oncoming truck
registration number KBA 778C seriously injuring our client. The aforesaid is insured by
your company.
And as a result, it incurred the following:
i.
ii.
iii.
iv.
v.
vi.
vii.
Hospital Bills approximately Ksh. 1,000,000.00
Medical Report Ksh. 5,000.00
Expense on search of the bus Ksh. 20,000.00
Police Abstract Ksh. 500.00
Transport Expenses Ksh. 10,000.00
Further medical attention and facial therapy Ksh. 2,000,000.00
Loss income @20,000.00 per month for 2years Ksh. 480,000.00
1
Our instructions are therefore to demand from you as we hereby do payment of the sum
Ksh. 3,497,500.00 being due and owing to our client.
TAKE NOTICE that unless we receive the said sum Ksh. 3,497,500.00 in our chambers
WITHIN SEVEN (7) DAYS from the date hereof our peremptory instructions are to take
legal action against you without any further reference to you whatsoever costs and
other consequences attendant thereto at your own peril.
Be accordingly warned!
Yours faithfully,
OWANO AND COMPANY ADVOCATE.
2
KAULA AND COMPANY ADVOCATES
COMMISSIONER OF OATHS
T. R. MPOSI, LL.B (Hons) Moi, Dip in Law (KSL)
2ND Floor, Cannon Towers, Kenyatta Avenue, P.O. Box 70-0100 Nairobi, Kenya
Tel: 0728327384 Email: kauladvocates93@gmail.com
Our ref: M5E/CC/050/014 Your Ref: M4D/CC/002/014
2014
Date: 1ST APRIL
TO:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
Dear Sir/Madam,
RE: REPLY TO DEMAND LETTER
We act for the defendants in this matter – MKOSA NIDHAMU and DAIMA TRAVELLERS
LIMITED [hereinafter referred to as our client] under whose instructions we write to you
and state as follows:
That the accident was not caused entirely on our negligence but due to the plaintiff’s
contributory of uncontrollable behaviour of not using the seat belt.
The truck registration number KBA 778C collided with our bus should be sued instead of
us for over speeding in that sharp bend and causing an accident by head-on-collision with
our bus and causing minor injuries on some of our passengers.
We do not carry any liability whatsoever for the plaintiff named FURAHA MINGI and shall
not therefore order any payments to be made to your firm in the name of your client since
she violated the terms of our passengers’ code of conduct and she should bear the
consequences as such.
Be guided accordingly!
3
Yours faithfully,
KAULA AND COMPANY ADVOCATES
4
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
FAST TRACK
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
PLAINT
1. The plaintiff herein is a female adult of sound mind residing and working for gain
2.
3.
4.
5.
6.
in Nairobi County within the Republic of Kenya. His address of services for the
purpose of this suit is care of OWANO & COMPANY ADVOCATES, 7 TH FLOOR, RE
INSURANCE PLAZA, MOI AVENUE, P.O. BOX 9043, NAIROBI, KENYA.
The 1st defendant is a male adult of sound mind residing and working for gain in
Nairobi County within the Republic of Kenya. Service of summons upon him shall
be effected through the plaintiff’s advocates.
The 2nd defendant is a private limited company duly registered and incorporated
under the Companies Act, Cap 486, Laws of Kenya. Service of summons upon it
shall be effected through the plaintiff’s advocates’ office.
The 3rd defendant is a private limited company duly registered and incorporated
under the Companies Act, Cap 486, Laws of Kenya. Its address for service of
summons shall be P.O. BOX 337-00100, NAIROBI.
At all material times, the 2nd Defendant was the registered owner of motor vehicle
registration number KBW 443Y, while the 1st Defendant was the servant, agent
and/or employee of the 2nd Defendant, the 3rd Defendant is the insurance company
which had insured the aforesaid motor vehicle.
On or about the 1st day of April, 2013, the plaintiff was lawfully travelling from
Nairobi to Mombasa, in the aforesaid motor vehicle owned by the 2 nd Defendant
when the driver of the bus, the 1 st defendant, decided to overtake in a sharp bend
(with a sign on the side: Do Not Overtake) a slow moving car of registration
number KAS 338A and in the process collided with an oncoming truck registration
number KBA 778C which was being driven very fast. The bus veered off the road
5
and rolled several times with the passengers sustaining serious injuries, the
plaintiff included.
a)
b)
c)
d)
PARTICULARS OF NEGLIGENCE ON THE PART OF THE 1 ST DEFENDANT
Failing to keep any or any proper look out or to have any sufficient regard for other
lawful users of the road.
Overtaking dangerously in a sharp bend contrary to the Traffic Rules.
Ignoring of road signs thereby failing to adhere to the provisions of the Highway
Code (Chapter 403 of the Laws of Kenya).
Failing to slow down, stop, swerve, brake or in any other way manoeuvre the said
motor vehicle, under his control so as to avoid the said accident.
7. So far as is necessary, the plaintiff will rely on the doctrine of ‘Res Ipsa Loquitor’
8. By reason of the matter aforesaid, the plaintiff sustained severe physical injuries.
He thus suffered loss and damage for which he holds the Defendants liable.
a)
b)
c)
d)
e)
PARTICULARS OF THE PLAINTIFF’S INJURIES
Fractured dislocation of the right elbow joint.
Bruises on her forehead.
Loss of her four lower teeth.
Dislocation of both knees.
Multiple injuries to the head.
9. As a consequence of the said accident the plaintiff has suffered loss and damage.
a)
b)
c)
d)
e)
f)
PARTICULARS OF SPECIAL DAMAGES
Hospital bill
Ksh. 1,000,000.00
Medical report
Ksh. 5,000.00
Official search of the bus
Ksh. 2,000.00
Police abstract
Ksh. 500.00
Cost of transport
Ksh. 10,000.00
Facial therapy
Ksh. 2,000,000.00
Total
Ksh. 2,017,500.00
10.
The plaintiff avers that the 2nd defendant is vicariously liable to the plaintiff
in respect of the said loss and damage.
11.
Despite demand having been made and intention to sue having been given,
the Defendants have failed, refused, and/or ignored to settle the plaintiff’s claim.
12.
The plaintiff avers that there is no other suit pending and further avers that
there have been no previous proceedings in any court between the plaintiff and
the defendant over the same subject matter.
13.
The cause of action arose along Nairobi-Mombasa Highway within the
jurisdiction of this Honourable court.
6
REASONS WHEREFORE the Plaintiff prays that judgment be entered
against the 1st, 2nd and 3rd Defendants jointly and severally for:
a) Special damages in the sum of Ksh. 2,017,500.00
b) Costs of the suits and interest thereon
c) Loss of income for two years @ Ksh. 20,000.00 per month
DATED at Nairobi this 8thday of April 2014
OWANO AND COMPANY ADVOCATES
ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
1. MKOSA NIDHAMU
P.O. BOX 946-00100
NAIROBI
2. DAIMA TRAVELLERS COMPANY LIMITED
P.O. BOX 946-00100
NAIROBI
3. REALITY INSURANCE COMPANY LIMITED
P.O. BOX 337-00100
NAIROBI
7
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
8
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
VERIFYING AFFIDAVIT
I, FURAHA MINGI of P.O. BOX 1183-00100 NAIROBI in the Republic of Kenya do
hereby take oath and state as follows:
1. THAT I state and swear that I am a female adult of sound mind.
2. THAT I state and swear that the true place of my abode is at Jamuhuri Estate,
Dagoretti Constituency, Jamuhuri location, Kona Mbaya sub-location,
Nairobi County in the Republic of Kenya.
3. THAT I state and swear that I am the plaintiff herein and, therefore,
competent to swear this affidavit.
4. THAT I state and swear that the facts contained in the plaint that this
affidavit accompanies are correct.
5. THAT I swear and state that there is no suit pending or previous
proceedings in any court between the Defendants and me over the same
subject matter.
6. THAT what is sworn herein is true to the best of my knowledge, information
and belief.
SWORN BY THE SAID:
FURAHA MINGI
________________
9
At Nairobi this 8th day of April 2014
DEPONENT
BEFORE ME:
COMMISSIONER FOR OATHS/MAGISTRATE
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
10
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
PLAINTIFF’S LIST OF WITNESSES
(Pursuant to Order 3 Rule 2)
1. Nathan Nduta Njoroge ID NO. 30249434
2. Nyagwondo Linet Moraa ID NO. 29478471
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
11
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
PLAINTIFF’S LIST OF DOCUMENTS
(Pursuant to Order 3 Rule 2)
1.
2.
3.
4.
5.
6.
7.
8.
Hospital Bills
Medical report
Official vehicle search
Police abstract
Pay slip
Birth certificate
Fees structure (Elimu academies)
Demand letter
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
12
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
PLAINTIFF’S STATEMENTS
My name is FURAHA MINGI. I live in NAIROBI County where I also work for gain. I
am an adult female of 32years.
On 1st April 2013, I was travelling to Mombasa for Easter Holidays in a bus owned
by Daima Travellers Limited Company.
About 40km from Nairobi, the driver of the bus, one MKOSA NIDHAMU, was
overtaking around a sharp bend which had a sign “DO NOT OVERTAKE” a slow
moving car which was also headed for Mombasa. I saw a fast moving truck moving
from the opposite direction as the bus was in the process of over-taking the car
which collided with the bus we were travelling in making the bus to veer off the
road and roll several times. The last thing I could remember was hearing the
passengers scream as I later lost my consciousness. I later found myself in a
hospital ward.
DATED at Nairobi this 9th day of April 2014
__________________
FURAHA MINGI
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
13
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
WITNESS STATEMENTS
1. Nathan Nduta Njoroge, ID NO. 30249434
On 1st April, 2013 I was slowly and lawfully driving my vehicle model Toyota
Premio registration number KAS 338A from Nairobi to Mombasa along NairobiMombasa Highway.
On or around 2.15pm, as I was negotiating a sharp bend, a bus of registration
number KBW 443Y tried to overtake me. I noticed an oncoming speeding truck in
the opposite direction. The aforesaid bus in the process of overtaking me on the
sharp bend which had a road sign “DO NOT OVERTAKE”, unfortunately collided
with the truck. The bus veered off the road and rolled severally before coming to a
stop. I heard passengers crying for help and I stopped my vehicle to assist the
casualties.
The above facts are true to the best of my knowledge and belief.
___________________
NATHAN NJOROGE
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
14
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
WITNESS STATEMENTS
2. Nyagwondo Linet Moraa ID NO. 29478471
On 1st April, 2013, as I was lawfully walking from the market to my home along
Nairobi-Mombasa Highway, a car of registration number KAS 338A, Toyota
Premio model was slowly moving towards Mombasa.
A bus of registration number KBW 443Y was trying to overtake the oncoming car
around a sharp bend which had a road sign on the left side written “DO NOT
OVERTAKE” when it collided with a speeding truck coming from the opposite
direction headed to Nairobi. The bus herein aforesaid veered off the road and
rolled several times before coming to a stop. I heard screams from the passengers
who were calling out for help. I ran and assisted the casualties by helping to rescue
some of them who were trapped in the mangled wreckage.
I declare the above to be true to the best of my knowledge.
__________________________
NYAGWONDO LINET MORAA
15
Summons to Enter Appearance
CIVIL 1B
O. V. r.1
16
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 543 OF 2005.
FURAHA MINGI
Plaintiff
C/O OWANO& COMPANY ADVOCATES
.
against
MKOSA NIDHAMU
1STDefendant
Service of Summons through The Plaintiff’s Advocates
DAIMA TRAVELLERS LIMITED COMPANY
2NDDefendant
Service of Summons through The Plaintiff’s Advocates
TO:
1. MKOSA NIDHAMU.
2. DAIMA TRAVELLERS LIMITED COMPANY
WHEREAS the above-named Plaintiff has instituted a suit against you upon the claim, the
Particulars of which are set out in the copy of Plaint with annexure attached hereto.
17
YOU ARE HEREBY REQUIRED within 15 days from the date of service hereof to enter an
appearance in the said suit.
Should you fail to enter an appearance within the time mentioned above, the
Plaintiff may proceed with the suit and Judgment may be given in your absence.
Given and issued under my hand and the Seal of the Court this 9th day of April
2014.
…………………………………………………
Magistrate/Executive Officer
Or Officer appointed under O. IV., rule
3(2)
IMPORTANT NOTICE
(1) You may appear in this suit by entering an appearance either personally, or by duly
appointed advocates at NAIROBI. Appearance can be entered by filing with the Court
Memo. of Appearance (forms are obtained from Court at 30 cents each) in duplicate,
showing the Defendant’s address of service. A copy of Memo. of Appearance should also
be sent to the Plaintiff or his Advocate, if any.
You may enter an appearance through the Post by sending the following to the CHIEF
Magistrate (Civil), P.O. BOX 30041, NAIROBI.
(i)
Memorandum of Appearance and a copy.
(ii)
Notice of Appearance and a copy.
(iii) Two envelops each sufficiently stamped; one addressed to the Plaintiff or his
Advocate at the address for service and the other addressed to yourself.
(2) If you admit the claim the total sum now due is:
Sum Claimed in the Plaint …
…
…
…
Sh.
3,017,500.00
Sh.
18,000.00
Advocate’s costs
…
…
…
…
…
Court fees
…
…
…
…
……… Sh.
5,410.00
Court Collection fee …
…
…
…
………. Sh.
1,500.00
TOTAL…
…
…
……... .. Sh.
…
…
…
3,042,410.00
(3) If payment is made direct to the Plaintiff no court collection fee is payable. Cheques
cannot be accepted. Remittance must be by coin, bank notes or postal order.
(4) This Summons
[P.T.O.]
is
valid
for
12
18
months
from
the
date
of
issue.
I have received copies of the Summons and the Plaint this 9thday
Of April, 2014 at 3 o’clock.
……………………………………………
Signature of Recipient
Note ---- If substituted Service has been ordered state fully and exactly the
manner in which the process was served with special reference to the terms of
any order for substituted service.
_____
GKP (L)
19
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
20
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
AFFIDAVIT OF SERVICE
(Pursuant to Order 5 Rule 5)
I, OMAR MASUDI BUNGALE of P.O. BOX 8040-00100 NAIROBI in the Republic of
Kenya do hereby take oath and state as follows:
1. THAT I am a process server duly authorized by this honourable court to
serve court process.
2. THAT from the firm of OWANO & COMPANY ADVOCATES I received
instructions plus copies of plaint, verifying affidavit and summons to effect
upon the 1st, 2nd and 3rd Defendants mentioned herein.
3. THAT on 1st April, 2014, I proceeded to the defendants place of work at
Daima Travellers Limited head office; I introduced myself and the purpose
of my visit to their receptionist who directed me to the 1st Defendant’s
department of work. I did not find him at his work station and at 2.00pm, I
effected service on his workmate who accepted my service, signed on behalf
of the 1st Defendant which I return to this Honourable court duly served and
signed.
4. THAT on 1st April 2014, I proceeded to the 2 nd Defendant’s head office. At
2.15pm I effected service on the receptionist who accepted my service,
signed and affixed the official rubber stamp on the original copy of the
pleadings which I return to this Honourable court duly served and signed.
5. THAT on 2nd April 2014, I proceeded to the 3rd Defendant’s office; I
introduced myself and the purpose of my visit to their secretary. At 9.30am,
I effected service on their secretary who accepted my service, signed and
affixed their official rubber stamp on the original copy of the pleadings
which I return to this Honourable court duly served and signed.
6. THAT the facts deponed herein above are true to the best of my knowledge,
information and belief.
SWORN at NAIROBI
DATED at Nairobi this 9th day of April 2014
21
By the said OMAR BUNGALE MASUDI
____________________DEPONENT
BEFORE ME
COMMISSIONER OF OATHS
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
22
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
REQUEST FOR JUDGMENT
Order 10 Rule 4 Civil Procedure Rules
The plaintiff requests for judgment against the defendant 1. MKOSA NIDHAMU 2.
DAIMA TRAVELLERS LIMITED 3. REALITY INSURANCE COMPANY LIMITED who
have failed to appear (file a defense).
The request is for interlocutory judgment for Ksh. 3,017,500 and costs.
DATED at Nairobi this 10th day of April 2014
ADVOCATES FOR THE PLAINTIFF
1. MKOSA NIDHAMU
2. DAIMA TRAVELLERS LIMITED
3. REALITY INSURANCE COMPANY
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
23
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
HEARING NOTICE
TO
1. MKOSA NIDHAMU
P.O. BOX 70-00100
NAIROBI
(BY RECORDED HAND DELIVERY)
2. DAIMA TRAVELLERS LIMITED
P.O. BOX 70-00100
(BY REGISTERED POST)
NAIROBI
3. REALITY INSURANCE COMPANY LIMITED
P.O. BOX 70-00100
(BY REGISTERED POST)
NAIROBI
TAKE NOTICE the above matter is fixed for hearing on 3 rd day of April 2014 at
9.00 o’clock in the forenoon or soon thereafter at the Milimani Commercial Courts.
TAKE FURTHER NOTICE that in default of your attendance on the said date and
time the court may proceed to hear the matter ex parte and such orders may be
made as the court may deem fit to grant.
DATED at Nairobi this 10th day of April 2014
OWANO & COMPANY
ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
24
NAIROBI, KENYA.
TO BE SERVED UPON:
1. MKOSA NIDHAMU,
P.O. BOX 70-00100,
NAIROBI.
2. DAIMA TRAVELLERS,
P.O. BOX 70-00100,
NAIROBI.
3. REALITY INSURANCE COMPANY LIMITED,
P.O. BOX 70-00100,
NAIROBI.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
TO
25
1. MKOSA NIDHAMU,
P.O. BOX 70-00100,
NAIROBI.
2. DAIMA TRAVELLERS,
P.O. BOX 70-00100,
NAIROBI.
3. REALITY INSURANCE COMPANY LIMITED,
P.O. BOX 70-00100,
NAIROBI.
NOTICE OF JUGDEMENT
TAKE NOTICE that judgment in the above suit to be delivered on the11th day of April
2014 at 9.00am in the forenoon or soon thereafter at Chief Magistrate’s court at
Milimani Commercial courts.
TAKE FURTHER NOTICE that if no appearance is made from you or your
representative, then the judgment will be delivered notwithstanding your
absence.
DATED at Nairobi this 10th day of April 2014
ADVOCATES FOR PLAINTIFF
26
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
In open court on the…… day of…….. 2014
Before the Honourable Arwari
27
DECREE
CLAIM FOR:
a) Shillings ______________
b) Interest _______________
c) Costs _________________
UPON READING the request for judgment presented in this court on the _____ day
of ______ 2014 by Counsel for plaintiff under Order 10 rule 4 of the Civil Procedure
Rules 2010.
IT IS HEREBY ORDERED:
1. THAT the 1st and 2nd defendants pay special damages amounting to Ksh.
3,017,500.00 as special damages to the plaintiff
2. THAT the 1st and 2nd defendants meet costs of the suit
GIVEN under my hand and seal of the court this 11thday of April 2014.
ISSUED at Nairobi this 11th day of April, 2014.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI …………………..…….1ST PLAINTIFF/DECREE HOLDER
VERSUS
MKOSA NIDHAMU …………….…1ST DEFENDANT/JUDGEMENT-DEBTOR
DAIMA TRAVELLERS LIMITED ....... 2ND DEFENDANT/JUDGEMENT-DEBTOR
REALITY INSURANCE COMPANY LIMITED …....3RD DEFENDANT/
JUDGEMENT-DEBTOR
CERTIFICATE OF URGENCY
28
I, TEMWANANI REGINA MPOSI, an advocate of the High Court of Kenya do
hereby confirm that the application herein is extremely urgent, in that pursuant
to judgment entered on __________ and the decree issued subsequently the Decree
–Holder’s agents M/S VIOLET RUTO AGENCIES proclaimed the judgment-debtors
movable property i.e. Motor Vehicle registration number KBY 413Z, an office
desk and a telephone head on ______________ and intend to dispossess the
judgment-debtor of the said moveable property any time and proceed to dispose
of the same by public auction.
The Defendants/Judgment-debtors were never served with the plaint nor
summons to enter appearance and should the Decree-Holder proceed with the
execution the defendants shall suffer irreparably as it will have been condemned
unheard.
I therefore vouch for the urgency in this matter.
DATED at Nairobi this 12th day of April, 2014
KAULA & COMPANY ADVOCATES
ADVOCATES FOR THE DEFENDANT/JUDGEMENT DEBTOR
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
29
NAIROBI, KENYA.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
NOTICE OF MOTION
(Pursuant to Section 3A Civil Procedure Act and Order 50 Rule 17 Civil
Procedure Rules)
30
TAKE NOTICE that this Honourable court, on the 13th day of April, 2014 at 2 o’clock
in the forenoon or so soon thereafter as the matter may be heard of an application
by the counsel for the Defendants for the following orders:
1. THAT the default judgment granted to the applicant on to be compensated
following an accident that involved a bus owned by Daima Travellers
Limited and a truck be set aside.
2. THAT the Chamber Summons dated on 11th day of April, 2014 2014(Notice
of Judgment) filed by the Applicant be dismissed with costs and,
3. THAT the costs of and occasioned by this application be provided for,
WHICH APPLICATION is based on the following grounds, namely:
a) The Applicant had not dully served the Defendants in order to enter
appearance and their step to apply for a default judgment do not justify
or support the ex-parte orders sought from and made by this
Honourable Court.
b) There is no, or no sufficient material placed by the applicants before this
Honourable court to show that the Applicant has a prima facie to apply
for a default judgment.
c) The alleged interlocutory Judgment and Decree thereto sought to be
quashed has not been properly identified by reference to its date or at
all.
d) There is material placed before this Honourable Court to support the
“grounds” on which the aforesaid Chamber of Summons and the
statement dated are based.
e) The statement dated is incurably defective in that it contains no facts
which could be verified by the verifying affidavit sworn on 11th day of
April, 2014 and filed in support of the Chamber Summons.
f) The Plaint of the said Applicant contains conclusion of alleged facts
without any concrete grounds on which to support the same even in the
witness statements and list of documents to be relied on.
AND TAKE FURTHER NOTICE that this application is further supported by the
annexed Defense of the Defendants and support affidavit sworn on the 12th day of
April, 2014 and filed herein.
DATED at Nairobi this 12th day of April, 2014
KAULA & COMPANY ADVOCATES
ADVOCATES FOR THE DEFENDANTS
31
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
32
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
SUPPORTING AFFIDAVIT
I, TEMWANANI REGINA MPOSI of Post Office Box Number 2704 - 00100, Nairobi in the
Republic of Kenya do hereby make oath and state as follows:-
33
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
THAT I am an advocate of the High Court of Kenya practising as such in the name
and style of Kaula & Company Advocates, who have conduct of this suit on behalf
of the Defendant/Judgment debtor, and well versed with the facts and with
requisite authority to swear this affidavit.
THAT subsequent to my coming on record for the judgment-debtor as aforesaid,
there was a court appearance before Magistrate Arwari on _____ where a consent
was recorded to have the matter then HCCC _____-2014 to the magistrates’ court.
THAT we were not served with any Hearing Notice or any further court process
before and after that.
THAT we were rather shocked when the judgment-debtor came to the office to
inform us that an auctioneer had come to his home in Parklands Nairobi and
dropped off a proclamation of attachment of his movable property in execution of
a decree passed on 6th May 2004. (Annexed hereto and marked “EAR 4” is a copy
of the said proclamation).
THAT I immediately proceeded to the court registry at Milimani Commercial
Courts to inquire as to how the matter had reached this far without my knowledge
and upon perusing the court file I was surprised to discover that the case had
proceeded for hearing in my absence on _______ and judgment had been entered
against the judgment-debtor by the Hon Ms. Arwari on the _______ for a total sum
of Kshs. 3,017,000/- with costs and interest from the date of filing suit, and a
decree subsequently passed.
THAT upon perusal of the court file I established that no Hearing Notice was
issued nor served on neither and me was there an Affidavit of Service deponing
service of any Hearing Notice.
THAT I read mischief in the whole thing and I question why a Hearing Notice was
not issued nor served upon me so that I would be made aware of the hearing date.
THAT service of a Hearing Notice is a mandatory requirement under the law, and
that before a hearing can proceed with a party absent, the court must satisfy itself
that there was proper service of a Hearing Notice.
THAT there appears to have been no service of a Hearing Notice and as such the
hearing proceeded in our absence irregularly.
THAT the judgment and the subsequent decree were thus obtained irregularly
and ought to be set aside.
THAT the judgment-debtor ought to have been heard and the case determined on
its merits and he ought not to be condemned unheard.
THAT as advocate on record for the judgment-debtor, I am entitled to be served
with all due process and I have a right to be informed of all developments in this
suit.
THAT the judgment-debtor stands to suffer irreparable damage if his goods are
attached.
THAT I also swear this affidavit in support my application, praying that this
Honourable court sets aside the Judgment entered by the Hon Ms. Arwari and
allow the case to be heard afresh in respect of the 1st and 2nd defendants.
THAT what is deponed to hereinabove is true to the best of my knowledge,
information and belief sources and full particulars whereof have been disclosed.
SWORN at NAIROBI by the said
TEMWANANI REGINA MPOSI
34
This 12th day of April, 2014
DEPONENT
BEFORE ME
COMMISSIONER FOR OATHS
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
35
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
HEARING NOTICE
TO:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
(BY RECORDED HAND DELIVERY)
36
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TAKE NOTICE that the application dated 12th day of April, 2014 is fixed for
hearing on the 13th day of April, 2014 at 9.00o’clock in the forenoon or soon
thereafter at the Milimani Commercial Courts.
TAKE FURTHER NOTICE that in default of your attendance on the said date and
time the court may proceed to hear the matter ex parte and grant such orders as
the court may deem fit.
DATED at Nairobi this 12th day of April, 2014
KAULA & COMPANY
ADVOCATES FOR THE DEFENDANTS
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
37
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
AFFIDAVIT OF SERVICE
(Pursuant to Order 5 Rule 15)
I, OMAR MASUDI BUNGALE of P.O. BOX 8040-00100 NAIROBI in the Republic of
Kenya do hereby take oath and state as follows:
1. THAT I am a process server duly authorized by this Honourable Court to
serve court process.
38
2. THAT from the firm of OWANO & COMPANY ADVOCATES I received
instructions plus copies of plaint, verifying affidavit and summons to effect
upon the 1st, 2nd and 3rd Defendants mentioned herein.
3. THAT on 3rd April, 2014, I proceeded to the Defendant’s place of work at
Daima Travellers Limited head office; I introduced myself and the purpose
of my visit to their receptionist who directed me to the 1 st Defendant’s
department of work. I found him at his work station and at 9.00am, I
effected service on him personally who accepted my service, signed it which
I return to this Honourable court duly served and signed.
4. THAT on 3rd April 2014, I proceeded to the 2nd Defendant’s head office. At
2.00pm I effected service on the company secretary who accepted my
service, signed and affixed the official rubber stamp on the original copy of
the pleadings which I return to this Honourable court duly served and
signed.
5. THAT on 3rd April 2014, I proceeded to the 3rd Defendant’s office; I
introduced myself and the purpose of my visit to their company secretary.
At 3.00pm, I effected service on their company secretary who accepted my
service, signed and affixed their official rubber stamp on the original copy
of the pleadings which I return to this Honourable court duly served and
signed.
6. THAT the facts deponed herein above are true to the best of my knowledge,
information and belief.
SWORN at NAIROBI
DATED this 14th day of April, 2014
By the said OMAR BUNGALE MASUDI
____________________DEPONENT
BEFORE ME
COMMISSIONER OF OATHS
39
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
MEMORANDUM OF APPEARANCE
(Pursuant to Order 6 Rule 2(1) Civil Procedure Rules)
PLEASE enter appearance for MKOSA NIDHAMU sued as the 1st Defendant herein
and DAIMA TRAVELLERS LIMITED sued as the 2nd Defendant herein.
TAKE NOTICE that the 1st and 2nd Defendants address of service shall be care of
KAULA & COMPANY ADVOCATES P.O. BOX 70-00100 NAIROBI.
DATED this 15th day of April, 2014
40
KAULA & COMPANY
ADVOCATES FOR THE DEFENDANTS
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
41
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
DEFENCE
1. Save for what is herein expressly admitted, the Defendants deny each and every
allegation set out in the Plaint as if the same were set out and traversed seriatim.
2. The Defendants admit paragraph 1 and 2 of the plaint, the same merely being
descriptive of the parties, save that their addresses of service for the purposes of
this suit shall be care of KAULA & COMPANY ADVOCATES, 2 ND FLOOR, CANNON
TOWERS, P.O. BOX 70-00100, NAIROBI – KENYA.
3. The Defendants refer to paragraph 4 of the plaint and admit the contents thereof
being the owners of the Motor vehicle registration number KBW 443Y while the
1st Defendant being their employee and driver of that aforesaid motor vehicle.
4. The Defendants refer to paragraph 5 of the Plaint and deny the contents of
negligence averred on the 1st Defendant that he was negligent in the way of using
42
the road and therefore causing serious road accident and the plaintiff is hence
put to strict proof thereof.
5. The Defendants refer to paragraph 5 of the plaint and deny the contents of
negligence averred on the 1st defendant that he was negligent in the way of using
the road and therefore causing a serious road accident and the plaintiff is hence
put to strict proof thereof.
6. The defendants deny the provisions of paragraph 6 of the provisions of the plaint
and the plaintiff is therefore put to strict proof thereof.
7. The Defendants also deny the contents of paragraph 7 of the plaint being the
specific particulars of the plaintiff’s injuries as being a misrepresentation of the
real facts te plaintiff under strict proof thereof.
8. The Defendants deny the provisions of paragraph 8 of the plaint being the special
damages claimed by the plaintiff and puts the plaintiff under strict proof thereof.
9. The Defendants refer to the entire plaint filed and state that the plaint herein is
bad in law, ambiguous, premature and shall apply for the same and or portions
thereof to be struck off.
10. The jurisdiction of this Honourable Court is hereby admitted.
REASONS WHEREFORE: The Defendants pray for the plaintiff’s claim as outlined I the
plaint to be dismissed with costs.
DATED this 15th day of April, 2014
KAULA & CO. ADVOCATES
ADVOCATES FOR THE DEFENDANTS
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
43
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
DEFENDANTS’ SUPPLEMENTARY LIST OF WITNESSES
(Pursuant to Order 3 rule 2 of the civil procedure rules)
The Defendants shall at the hearing call the following witnesses:
1. NEHEMIAH KIBET
2. BILLY KIPRUTO
3. ABIGAEL TOROITICH
Any other witness called with leave of the court.
4.
DATED this 15th day of April, 2014
KAULA & COMPANY ADVOCATES
ADVOCATES FOR THE DEFENDANTS
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
44
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
45
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
DEFENDANTS’ SUPPLEMENTARY LIST OF DOCUMENTS
(Pursuant to Order 3 rule 2 of the Civil Procedure Rules 2010)
The Defendants shall at the hearing hereof rely on the following supporting
documents:
1.
2.
3.
4.
Insurance agreement with respect to Reality Insurance Company
Inspection report on the Bus registration number KBW 443Y dated ________
Digital tracking system on speed of the vehicle
Any other documents produced with leave of court
DATED this 15th day of April, 2014
KAULA & COMPANY ADVOCATES
ADVOCATES FOR THE DEFENDANTS
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
46
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100, NAIROBI, KENYA.
47
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
WITNESS STATEMENT
1. NEHEMIAH KIBET
I, NEHEMIAH KIBET of ID Number 30252743 and of P.O. BOX 115-00100
NAIROBI do wish to state as follows:
1. THAT I am the inspector of authorized by CMC Motors to carry out
inspection of the Public Service Vehicle and that I had conducted an
inspection on the said motor vehicle of registration number KBW 443 on
__________
2. THAT I have been in this practice of inspection of Daima Travellers
Limited Vehicles since the year 2000.
3. THAT the vehicle was in good condition as not to cause any accident due to
lack of maintenance.
4. I declare the above to be true to the best of my knowledge.
48
__________________________
NEHEMIAH KIBET
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
WITNESS STATEMENTS
2. ABIGAEL TOROITICH ID NO. 30259334
On 1st April, 2013, as I was lawfully travelling from Nairobi to Mombasa along
Nairobi-Mombasa Highway, boarded in a bus of registration number KBW 443Y
owned by Daima Travellers Limited and driven by the said MKOSA NIDHAMU.
I was seated at seat number 3, next to the plaintiff’s seat which was at seat number
4.
The bus in which we were travelling in was trying to overtake the oncoming car
around a sharp bend which had a road sign on the left side written “DO NOT
OVERTAKE” that could not been seen easily unless viewed carefully when it
collided with a speeding truck coming from the opposite direction headed to
Nairobi. The bus herein aforesaid veered off the road and lost control. Most of the
people sustained only minor injuries.
49
I declare the above to be true to the best of my knowledge.
__________________________
ABIGAEL TOROITICH
50
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
WITNESS STATEMENTS
3. BILLY KIPRUTO ID NUMBER 24307429
On 1st April, 2013, as I was lawfully grazing cattle next to the Nairobi-Mombasa
Highway, near the place where the said accident took place involving a bus of
registration number KBW 443Y owned by Daima Travellers Limited and driven by
the said MKOSA NIDHAMU.
The bus overtake the oncoming truck around a bend which had a road sign on the
left side written “DO NOT OVERTAKE” that could was easily unless viewed
carefully when it collided with a speeding truck coming from the opposite
direction headed to Nairobi. The bus herein aforesaid veered off the road and lost
control. Most of the people sustained only minor injuries.
I declare the above to be true to the best of my knowledge.
__________________________
BILLY KIPRUTO
51
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
NOTICE OF MOTION
(Pursuant to Order 51 rule1)
TAKE NOTICE that this Honourable Court will be moved on the17thdayApril of2014 at 9
O'clock in the forenoon or so soon thereafter when Counsel for the Plaintiff/Applicant
shall be heard for ORDERS THAT :1. THAT the plaintiff/applicant be granted leave to amend their plaint as set out in
the draft amended plaint herein annexed.
2. THAT the draft amended plaint be deemed as duly filed and served.
3. THAT the costs of this application be provided for.
WHICH APPLICATION is based on the following grounds and other grounds to be
adduced at the hearing hereof, and the annexed affidavit of FURAHA MINGI:
1. THAT the third defendant was improperly joined as a party in this suit.
2. THAT the error was a bona fide and genuine mistake not intended to mislead the
process of court.
3. THAT the plaintiff’s said amendment shall not in any way prejudice the 1 st and 2nd
defendants but will enable the court to determine the real question or issues raised
by the proceedings.
4. DATED this 16th day of April, 2014
OWANO AND COMPANY ADVOCATES
ADVOCATES FOR PLAINTIFF/APPLICANT
52
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
Note: “If any party served does not appear at the time and place above-mentioned, such
Order will be made and proceedings taken as the Court may think just and expedient”.
53
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
SUPPORTING AFFIDAVIT
I OWANO MICHAEL of P.O. BOX 9043 NAIROBI do hereby make oath and state as
follows:
1. THAT I am an advocate of the High Court of Kenya practicing as such in the
firm of OWANO & Co. ADVOCATES who have the conduct of this matter on
behalf of the plaintiff/applicant and hence competent to swear this
affidavit.
2. THAT on __________, 2014 we filed this suit on behalf of the
plaintiff/applicant claiming general and special damages arising from a
traffic road accident that occurred on 1st April, 2013 along NairobiMombasa highway wherein the plaintiff suffered personal injuries.
3. THAT on the plaint we enjoined Reality Insurance Company as the 3 rd
Defendant.
4. THAT we have been subsequently informed by Reality Insurance Company
that the 2nd Defendant had not insured his employees’ liabilities hence
they are not liable. (Find a copy of letter dated 17th March, 2014 annexed
hereto as ‘ANK-001’)
5. THAT it is therefore evident that the 3rd defendant was erroneously
enjoined in this suit.
54
6. THAT the calculated special damages included in the plaint as Ksh.
2,017,500.00 was erroneously calculated and upon recalculation
amounted to Ksh. 3,017,500.00
7. THAT I verily believe that it is only necessary and just the 3 rd Defendant’s
name be struck out from these pleadings as he is not a necessary party to
this suit.
8. THAT I swear this affidavit in support of the applicant’s/plaintiff’s
application for leave to amend their plaint in terms of the draft amended
plaint. (Annexed hereto and marked ‘ANK-002’ is a copy of the draft
amended plaint.)
9. THAT what is stated here is true to the best of my knowledge and belief
save where otherwise stated and source disclosed.
SWORN at NAIROBI by the said
OWANO MICHAEL
________________
DATED this 16th day of April, 2014
DEPONENT
BEFORE ME
COMMISSIONER OF OATHS
55
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
HEARING NOTICE
TO
KAULA & COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TAKE NOTICE the above matter is fixed for hearing on 17thday of April 2014 at
9.00 o’clock in the forenoon or soon thereafter at the Milimani Commercial Courts.
TAKE FURTHER NOTICE that in default of your attendance on the said date and
time the court may proceed to hear the matter ex parte and such orders may be
made as the court may deem fit to grant.
DATED this 16th day of April, 2014
OWANO & COMPANY
ADVOCATES FOR THE PLAINTIFF
56
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
KAULA & COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
57
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
AMENDED PLAINT
FAST TRACK
1. The plaintiff herein is a female adult of sound mind residing and working for gain
in Nairobi County within the Republic of Kenya. His address of services for the
purpose of this suit is care of OWANO & COMPANY ADVOCATES, 7 TH FLOOR, RE
INSURANCE PLAZA, MOI AVENUE, P.O. BOX 9043, NAIROBI, KENYA.
2. The 1st defendant is a male adult of sound mind residing and working for gain in
Nairobi County within the Republic of Kenya. Service of summons upon him shall
be effected through the plaintiff’s advocates.
3. The 2nd defendant is a private limited company duly registered and incorporated
under the Companies Act, Cap 486, Laws of Kenya. Service of summons upon it
shall be effected through the plaintiff’s advocates’ office.
4. The 3rd defendant is a private limited company duly registered and incorporated
under the Companies Act, , Cap 486, Laws of Kenya. Its address for service of
summons shall be P.O. BOX 337-00100, NAIROBI.
5. At all material times, the 2nd Defendant was the registered owner of motor vehicle
registration number KBW 443Y, while the 1st Defendant was the servant, agent
and/or employee of the 2nd Defendant, the 3rd Defendant is the insurance company
which had insured the aforesaid motor vehicle.
6. On or about the 1st day of April, 2013, the plaintiff was lawfully travelling from
Nairobi to Mombasa, in the aforesaid motor vehicle owned by the 2 nd Defendant
when the driver of the bus, the 1 st defendant, decided to overtake in a sharp bend
(with a sign on the side: Do Not Overtake) a slow moving car of registration
number KAS 338A and in the process collided with an oncoming truck registration
58
number KBA 778C which was being driven very fast. The bus veered off the road
and rolled several times with the passengers sustaining serious injuries, the
plaintiff included.
e)
f)
g)
h)
PARTICULARS OF NEGLIGENCE ON THE PART OF THE 1 ST DEFENDANT
Failing to keep any or any proper look out or to have any sufficient regard for other
lawful users of the road.
Overtaking dangerously in a sharp bend contrary to the Traffic Rules.
Ignoring of road signs thereby failing to adhere to the provisions of the Highway
code (Chapter 403 of the Laws of Kenya).
Failing to slow down, stop, swerve, brake or in any other way manoeuvre the said
motor vehicle, under his control so as to avoid the said accident.
7. So far as is necessary, the plaintiff will rely on the doctrine of ‘Res Ipsa Loquitor’
8. By reason of the matter aforesaid, the plaintiff sustained severe physical injuries.
He thus suffered loss and damage for which he holds the Defendants liable.
f)
g)
h)
i)
j)
PARTICULARS OF THE PLAINTIFF’S INJURIES
Fractured dislocation of the right elbow joint.
Bruises on her forehead.
Loss of her four lower teeth.
Dislocation of both knees.
Multiple injuries to the head.
9. As a consequence of the said accident the plaintiff has suffered loss and damage.
g)
h)
i)
j)
k)
l)
PARTICULARS OF SPECIAL DAMAGES
Hospital bill
Ksh. 1,000,000.00
Medical report
Ksh. 5,000.00
Official search of the bus
Ksh. 2,000.00
Police abstract
Ksh. 500.00
Cost of transport
Ksh. 10,000.00
Facial therapy
Ksh. 2,000,000.00
Total
TOTAL
Ksh. 2,017,500.00
Ksh. 3,017,500.00
10. The plaintiff avers that the 2nd defendant is vicariously liable to the plaintiff in
respect of the said loss and damage.
11. Despite demand having been made and intention to sue having been given, the
Defendants have failed, refused, and/or ignored to settle the plaintiff’s claim.
12. The plaintiff avers that there is no other suit pending and further avers that there
have been no previous proceedings in any court between the plaintiff and the
defendant over the same subject matter.
59
13. The cause of action arose along Nairobi-Mombasa Highway within the jurisdiction
of this Honourable court.
REASONS WHEREFORE the Plaintiff prays that judgment be entered
against the 1st, 2nd and 3rd Defendants jointly and severally for:
d) Special damages in the sum of Ksh. 2,017,500.00Ksh. 3,017,500.00
e) Costs of the suits and interest thereon
f) Loss of income for two years @ Ksh. 20,000.00 per month
DATED this 18th day of April, 2014
OWANO AND COMPANY ADVOCATES
ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
1. MKOSA NIDHAMU
P.O. BOX 946-00100
NAIROBI
2. DAIMA TRAVELLERS COMPANY LIMITED
P.O. BOX 946-00100
NAIROBI
3. REALITY INSURANCE COMPANY LIMITED
P.O. BOX 337-00100
NAIROBI
60
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
61
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
NOTICE OF MOTION
(Pursuant to Order 8 rule 3 Civil Procedure Rules)
TAKE NOTICE that this Honourable Court will be moved on the20thday Aprilof2014 at 9
O'clock in the forenoon or so soon thereafter when Counsel for the Plaintiff/Applicant
shall be heard for ORDERS THAT :a. THAT the defendants/applicants be granted leave to amend their defense as set
out in the draft amended herein annexed.
b. THAT the draft amended defense be deemed as duly filed and served.
c. THAT the costs of this application be provided for.
WHICH APPLICATION is based on the following grounds and other grounds to be
adduced at the hearing thereof, and the annexed affidavit of MKOSA NIDHAMU.
1. THAT the 3rd defendant’s defense be hereby stuck out.
2. THAT the 3rd defendant’s pleadings be hereby struck out.
3. THAT the error was a bona fide and genuine mistake not intended to mislead the
process of the court.
4. THAT the defendant’s said amendment shall not in any way prejudice the plaintiff
but will enable the court to determine the real question or issues raised by the
proceedings.
DATED this 19th day of April, 2014
KAULA AND COMPANY ADVOCATES
62
ADVOCATES FOR THE DEFENDANT/APPLICANTS
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
Note: “If any party served does not appear at the time and place above-mentioned, such
Order will be made and proceedings taken as the Court may think just and expedient”.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.
OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
63
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
SUPPORTING AFFIDAVIT
I TEMWANANI REGINA MPOSI of P.O. BOX 70-00100 NAIROBI do hereby make
oath and state as follows:
1. THAT I am an advocate of the High Court of Kenya practicing as such in the
firm of KAULA & COMPANY ADVOCATES who have the conduct of this
matter on behalf of the defendants/applicant and hence competent to swear
this affidavit.
2. THAT on 12th day of April, 2014 we filed our defense on behalf of the
plaintiff/applicant claiming general and special damages arising from a
traffic road accident that occurred on 1 st April, 2013 along NairobiMombasa highway wherein the plaintiff suffered personal injuries.
3. THAT on the plaint we enjoined Reality Insurance Company as the 3rd
Defendant.
4. THAT we have been subsequently informed by Reality Insurance Company
that the 2nd Defendant had not insured his employees’ liabilities hence they
are not liable. (Find a copy of letter dated 17th March, 2014 annexed hereto
as ‘ANK-001’)
5. THAT it is therefore evident that the 3 rd defendant was erroneously
enjoined in this suit.
6. THAT the calculated special damages included in the plaint as Ksh.
2,017,500.00 was erroneously calculated and upon recalculation amounted
to Ksh. 3,017,500.00
7. THAT I verily believe that it is only necessary and just the 3 rd Defendant’s
name be struck out from these pleadings as he is not a necessary party to
this suit.
8. THAT I swear this affidavit in support of the applicant’s/plaintiff’s
application for leave to amend their plaint in terms of the draft amended
plaint. (Annexed hereto and marked ‘ANK-002’ is a copy of the draft
amended plaint.)
9. THAT what is stated here is true to the best of my knowledge and belief save
where otherwise stated and source disclosed.
SWORN at NAIROBI by the said
OWANO MICHAEL
64
This 19th day of April, 2014
_________________
DEPONENT
BEFORE ME
COMMISSIONER OF OATHS
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
65
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REALITY INSURANCE COMPANY LIMITED ……………..3RD DEFENDANT
AMENDED DEFENCE
1. Save for what is herein expressly admitted, the Defendants deny each and every
allegation set out in the Plaint as if the same were set out and traversed seriatim.
2. The Defendants admit paragraph 1 and 2 of the plaint, the same merely being
descriptive of the parties, save that their addresses of service for the purposes of
this suit shall be care of KAULA & COMPANY ADVOCATES, 2 ND FLOOR, CANNON
TOWERS, P.O. BOX 70-00100, NAIROBI – KENYA.
3. The Defendants refer to paragraph 4 of the plaint and admit the contents thereof
being the owners of the Motor vehicle registration number KBW 443Y while the
1st Defendant being their employee and driver of that aforesaid motor vehicle.
4. The Defendants refer to paragraph 5 of the Plaint and deny the contents of
negligence averred on the 1st Defendant that he was negligent in the way of using
the road and therefore causing serious road accident and the plaintiff is hence
put to strict proof thereof.
5. The Defendants refer to paragraph 5 of the plaint and deny the contents of
negligence averred on the 1st defendant that he was negligent in the way of using
the road and therefore causing a serious road accident and the plaintiff is hence
put to strict proof thereof.
6. The defendants deny the provisions of paragraph 6 of the provisions of the plaint
and the plaintiff is therefore put to strict proof thereof.
7. The Defendants also deny the contents of paragraph 7 of the plaint being the
specific particulars of the plaintiff’s injuries as being a misrepresentation of the
real facts the plaintiff under strict proof thereof.
8. The Defendants deny the provisions of paragraph 8 of the plaint being the special
damages claimed by the plaintiff and puts the plaintiff under strict proof thereof.
9. The Defendants refer to the entire plaint filed and state that the plaint herein is
bad in law, ambiguous, premature and shall apply for the same and or portions
thereof to be struck off.
10. The jurisdiction of this Honourable Court is hereby admitted.
REASONS WHEREFORE: The Defendants pray for the plaintiff’s claim as outlined I the
plaint to be dismissed with costs.
DATED this 21st day of April, 2014
KAULA & CO. ADVOCATES
ADVOCATES FOR THE DEFENDANTS
66
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.
OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
67
REQUEST FOR INTERLOCUTORY JUGDEMENT
Order 10 Rule 4 Civil Procedure Rules
The plaintiff requests for judgment against the defendant 1. MKOSA NIDHAMU 2.
DAIMA TRAVELLERS LIMITED whose defence fails to raise strong grounds on the
issues filed against them.
The request is for interlocutory judgment for Ksh. 3,017,500.00 and costs.
DATED this 22nd day of April, 2014
OWANO AND COMPANY ADVOCATES
ADVOCATES FOR THE PLAINTIFF
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
68
HEARING NOTICE
TO:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TAKE NOTICE the above matter is fixed for hearing on 23rd day of April 2014 at
9.00 o’clock in the forenoon or soon thereafter at the Milimani Commercial Courts.
TAKE FURTHER NOTICE that in default of your attendance on the said date and
time the court may proceed to hear the matter ex parte and such orders may be
made as the court may deem fit to grant.
DATED at Nairobi this 22nd day of April, 2014
OWANO & COMPANY
ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
69
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
70
TO
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
NOTICE OF JUGDEMENT
TAKE NOTICE that judgment in the above suit to be delivered on 23rd the day of
April, 2014 at 9.00am in the forenoon or soon thereafter at Chief Magistrate’s
court at Milimani Commercial courts.
TAKE FURTHER NOTICE that if no appearance is made from you or your
representative, then the judgment will be delivered notwithstanding your
absence.
DATED this 22nd day of April, 2014
OWANO AND COMPANY ADVOCATES
ADVOCATES FOR PLAINTIFF
71
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
CERTIFICATE OF URGENCY
72
I TEMWANANI REGINA MPOSI of Post Office Box Number 70 - 00100, Nairobi in the
Republic of Kenya, being an Advocate of the High Court of Kenya, do hereby certify the
application dated on the 22ndday of April, 2014 as urgent as ex parte orders have been
sought by the advocates for the plaintiff that have the effect of determining this matter at
a preliminary stage and its execution is bound to cause irreparable damage and expose
the 1st defendant who will have been condemned unheard.
DATED at Nairobi this 24th day of April, 2014
KAULA AND COMPANY ADVOCATES
ADVOCATE FOR THE DEFENDANTS/ APPLICANTS
DRAWN & FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
73
NAIROBI, KENYA.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
NOTICE OF MOTION
(Section 3A and 63 (e) of the Civil Procedure Act)
74
TAKE NOTICE THAT this Honourable Court will be moved on the 25th day of April, 2014
at 9.00 O’clock in the forenoon or so soon thereafter for hearing of an application by the
counsel for the defendants/applicants for orders:1.
THAT this application be certified as urgent.
2.
THAT service be dispensed with in the first instance.
3.
THAT the court be pleased to stay the application by counsel for the plaintiff made
herein on 22nd day of April, 2014 pending the hearing and determination of this
application.
4.
THAT the court be pleased to set aside the ex parte orders sought by the advocates
for the plaintiff of interlocutory judgment.
5.
THAT costs be provided for.
ON THE GROUNDS THAT: (a) THAT the plaintiff’s application dated 22nd day of April, 2014 to proceeded and give
interlocutory judgment will occasion injustice on the part of the defendant.
(b) THAT the defendants were not properly served with the application and hence the
absence in court.
(c) THAT it is the interest of justice that the said orders be set aside and the defendants
be allowed to defend themselves.
(d) THAT there has been no delay in making this application and no prejudice will be
suffered by the plaintiff.
AND on the annexed affidavit of LUKA MWANGI OME and other grounds to be adduced
at the hearing hereof.
DATED at NAIROBI this 24th day of April, 2014
KAULA AND COMPANY ADVOCATES
ADVOCATES FOR THE DEFENDANTS
DRAWN AND FILED BY: KAULA AND COMPANY ADVOCATES,
75
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON: OWANO AND COMPANY ADVOCATES
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100
NAIROBI, KENYA
NB:
“If any party served does not appear at the time and place abovementioned, such order will be made and proceedings taken as the court
may think just and expedient”.
76
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
SUPPORTING AFFIDAVIT
I, LUKA MWANGI OME of Post Office Box Number 32961, Nairobi in the Republic of
Kenya make oath and state as follows: -
77
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
THAT I am the Managing Director of the 1st and 2nd defendants company and have
been authorized by the company’s board of directors to swear this affidavit on
behalf of the company.
THATI am in charge of the day-to-day running of the company.
THAT on the morning 22nd day of April, 2014 I arrived at my office to find some
documents that had been left on my desk the previous day for my attention as I
had been away in Mombasa attending to my personal matters.
THAT I immediately realized that they were court documents and immediately
took them to our lawyer KAULA AND COMPANY ADVOCATES who after perusing
the same, informed me that a suit had been filed against the company and that
there was an urgent application pending on the same which was scheduled for
hearing on 23rd day of April, 2014, which was the day before.
THAT he further advised that he would have to find out what transpired and file
an immediate reply.
THAT I then gave him instructions on the matter and left it with him only for him
to call me later in the evening to inform me that after perusing the court records,
it appeared that the matter had proceeded on 23rd day of April, 2014 and orders
had been made which had the effect of prematurely determining the entire suit at
a preliminary stage without us been heard.
THAT I am also advised by my advocates, which advice I verily believe to be true,
that we ought to have been heard in our defence, and as such we ought to have
been served with notice of the hearing of the application in sufficient time so as to
enable us respond to the allegations.
THAT I am counseled by my advocates on record, which counsel I verily believe
to be true, that the Honourable court has discretion to set aside interlocutory
judgment.
THAT it is in the interest of justice that the prayers sought for interlocutory
judgment be set aside and we be allowed to file a reply to the said application.
THAT what is stated hereinabove is true to the best of my knowledge, information
and belief, save where the sources thereof have been disclosed.
SWORN at NAIROBI by the said
LUKA MWANGI OME
DATED this 24th day of April, 2014
______________________
DEPONENT
BEFORE ME
COMMISSIONER FOR OATHS
78
DRAWN AND FILED BY: KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON: OWANO AND COMPANY ADVOCATES
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100
NAIROBI, KENYA
79
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
HEARING NOTICE
TO:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
80
NAIROBI, KENYA.
TAKE NOTICE that the application dated 24th day of April, 2014 is fixed for
hearing on the 25th day of April, 2014 at 9.00o’clock in the forenoon or soon
thereafter at the Milimani Commercial Courts.
TAKE FURTHER NOTICE that in default of your attendance on the said date and
time the court may proceed to hear the matter ex parte and grant such orders as
the court may deem fit.
DATED at Nairobi this 24th day of April, 2014
KAULA & COMPANY
ADVOCATES FOR THE DEFENDANTS
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
81
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REPLY TO DEFENCE
1. Save as expressly admitted herein, the plaintiff joined issues with the 1 st and
2nd Defendants on the various allegations made in the defense filed (herein
on 15th day of April, 2014 (herein after referred to as “the Defense”).
2. In response to paragraph 4 of the defense, the plaintiff reiterate that the 1 st
Defendant was negligent in driving the vehicle and overtaking on a sharp
bend with a road sign “DO NOT OVERTAKE.”
82
3. In response to paragraph 5 and 6, the plaintiff avers that the 1 st Defendant
saw and ignored the road sign “DO NOT OVERTAKE” and he is therefore put
to strict proof to the contrary.
4. In response to paragraph 6of the defense, the plaintiff reiterates that
paragraph 7 of the plaint are the specific particulars of the injury and denies
that it is a misrepresentation of the real facts.
5. With respect to paragraph 7 of the defense, the plaintiff reiterates
paragraph 8 of the plaint being the special damages claimed by the plaintiff
REASONS WHEREFORE: the plaintiff prays that:
a. THAT the 1st and 2nd Defendants’ defense be dismissed with costs together
with the interests thereon at such rates and for that period of time as this
honourable court may deem to grant.
b. Judgment be entered in favour of the plaintiff against the 1 st and 2nd
Defendants respectively, as prayed in the Plaint.
DATED at Nairobi this 26th day of April, 2014
OWANO & CO. ADVOCATES
ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
KAULA AND COMPANY ADVOCATES,
83
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REPLY TO REPLY TO DEFENCE
1. Save as expressly admitted, the defendants deny each and every allegation
made to them in the reply to fence filed herein on 26th day of April, 2014
(herein referred to as “the reply to defence”.
2. In respect to paragraph 2 of the reply to defence, the defendants reiterate
that the 1st defendants herein was not negligent in driving the vehicle and
overtaking on a sharp bend with a road sign ‘Do Not Overtake’ and puts the
plaintiff to strict proof.
84
3. With respect to paragraph 3 of the reply to defence, the defendants confirm
that the 1stdefendant neither did he neither see nor ignore the road sign ‘Do
Not Overtake’ and the plaintiff is put to strict proof thereof.
4. In respect to paragraph 4 and 5 of the reply to defence, the defendants
reiterate that what is outlined in paragraph 7 of the plaint that the special
damages of the particulars of the injuries that it is a misrepresentation of
facts and puts the plaintiff under strict proof thereof.
DATED at Nairobi this 26th day of April, 2014
KAULA& CO. ADVOCATES
ADVOCATES FOR THE DEFENDANT
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
85
86
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
HEARING NOTICE
TO:
KAULA & COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TAKE NOTICE the above matter is fixed for hearing on 28th day of April 2014 at
9.00 o’clock in the forenoon or soon thereafter at the Milimani Commercial Courts.
TAKE FURTHER NOTICE that in default of your attendance on the said date and
time the court may proceed to hear the matter ex parte and such orders may be
made as the court may deem fit to grant.
DATED at Nairobi this 27thday of April, 2014.
OWANO & COMPANY
ADVOCATES FOR THE PLAINTIFF
87
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
KAULA & COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
REPUBLIC OF KENYA
88
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
HEARING NOTICE
TO:
KAULA & COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TAKE NOTICE the above matter is fixed for hearing on 30thday of April, 2014 at
9.00 o’clock in the forenoon or soon thereafter at the Milimani Commercial Courts.
TAKE FURTHER NOTICE that in default of your attendance on the said date and
time the court may proceed to hear the matter ex parte and such orders may be
made as the court may deem fit to grant.
DATED at Nairobi this 29th day of April, 2014.
OWANO & COMPANY
ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY:
89
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
KAULA & COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
90
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
MENTION NOTICE
TO:
KAULA & COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TAKE NOTICE the above matter is fixed for mention on 2nd day of May, 2014 at
9.00 o’clock in the forenoon or soon thereafter at the Milimani Commercial Courts.
TAKE FURTHER NOTICE that in default of your attendance on the said date and
time the court may proceed to hear the matter ex parte and such orders may be
made as the court may deem fit to grant.
DATED at Nairobi this 1st day of May, 2014.
OWANO & COMPANY
ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
91
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
KAULA & COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
92
CIVIL CASE NO. 543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
MENTION NOTICE
TO:
KAULA & COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
TAKE NOTICE the above matter is fixed for mention on 3rdday of May, 2014 at 9.00
o’clock in the forenoon or soon thereafter at the Milimani Commercial Courts.
TAKE FURTHER NOTICE that in default of your attendance on the said date and
time the court may proceed to hear the matter ex parte and such orders may be
made as the court may deem fit to grant.
DATED at Nairobi this ______ day of ________ 2014.
OWANO & COMPANY
ADVOCATES FOR THE PLAINTIFF
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
93
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
KAULA & COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
94
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
PLAINTIFF’ S WRITTEN SUBMISSIONS ON QUANTUM OF DAMAGES
Your Honour, the medical report produced shows the plaintiff to have suffered the
following injuries:i)
Head injury with scalp hematoma.
ii)
Bilateral breast injury with galaectocole which was drained surgically and has
healed with fibrosis.
iii)
Fibular dislocation at the right knee joint which has reduced inadequately.
With the following continuing effects:i)
Deformed breast.
ii)
Chest pains with difficulty in breathing.
iii)
Inability to carry heavy luggage.
iv)
Backache.
v)
Inability to walk fast and recurrent right knee pains.
vi)
All the above have greatly diminished plaintiff’s earning capacity.
To guide this court in assessing general damages we rely on the following High Court
authorities:
(a) Leornand Mutua Muthamia v John Gichuhi & Others NBI. H.C.C.C. No. of 1987 - Mwera
J. 10-8-1993
The plaintiff sustained injuries in a road traffic accident. He sustained a
posterior dislocation of the hip joint of left side and a bruise over the right shin.
Complained of continuous pains in the left hip joint which was due to the onset
of Osteoarthritis in the joint. He would need drugs to relieve pain for the rest
of his life.
General damages for pain, suffering and loss of amenities assessed at Kshs. 200,000
(b) Joseph D. Otiende v Hayer Bishan Singh & Sons NBI H.C.C.C. No. 972 OF 1992, - J.V.
Juma J. 22-5-1997.
The plaintiff was injured when he fell into a ditch 3 feet deep by 4 feet wide dug by the
defendant and sustained tissue injury to back and left hand. He had very severe pains on
the left small and ring fingers.
95
General damages for pain, suffering and loss of amenities assessed at Kshs.
130,000.
(c) Fanny Esilako V. Dorothy Muchene NBI.H.C.C. No.642 of 1991.29-10-1993. Githinji J.
The plaintiff aged 33 years at the date of trial sustained multiple soft tissue injuries
involving cuts over the left upper arm, multiple cuts over the left wrist, cuts over the left
knee, cuts over the right arm, sprained ankle and blunt injury to head with swelling.
There was no abnormality on the head and the right ankle joint was essentially normal.
Plaintiff was left with permanent scars.
General damages for pain, suffering and loss of amenities assessed at Kshs.
150,000.
(d) Harrison Peter Odek v J. Lyons & Co. Ltd NBI.H.C.C.C. No.3736 OF 1989.Githinji J.
22-10-1993
The plaintiff (age not stated) sustained multiple soft tissue injuries involving blunt
injuries to the right forehead and right eye resulting into swelling of the upper right eye
and right forehead. Also had bruises on lower limbs, swelling of left knee joint and
hairline crack of the left tibia. He was admitted in hospital for six days. The left leg was
put in plaster. There was no defect in the right eye. No permanent incapacity.
General damages for pain, suffering and loss of amenities assessed at Kshs.
150,000.
(e) James Gatubu Kimani (through Kimani Githigiti) v Kamanga Wairegi NBI H.C.C.C.
No. 4133 OF 1991. J.V. Juma J.
96
Plaintiff sustained blunt injury to the head with loss of consciousness and tissue injury to
left knee. Healed completely with no after effects.
General damages for pain and suffering assessed at Kshs. 150,000. (22-5-1997)
Taking into consideration the above authorities and the disfigurement of plaintiff’s
breast, we urge the Court to award the plaintiff the sum of Kshs. 360,000 in general
damages. This shall be reduced by 25% agreed contribution by the plaintiff to Kshs.
270,000. The special damages are Kshs. 3,000 being cost of medical report.
OWANO & CO. ADVOCATES
ADVOCATES FOR THE PLAINTIFF
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.
97
OF 2014
FURAHA MINGI ………………………………………………. PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
DEFENDANTS SUBMISSIONS
Your Honour, the plaintiff’s case does not rely on facts or law but is found on prejudice
and malice on the defendants. As set out in the Defence, it was illustrated that the
plaintiff had not fastened a seat belt hence leading to her injuries as clearly set out in the
plaint.
The defendants aver that by virtue of the plaintiff not wearing a seat belt it invokes the
principle of contributory negligence under the law of torts. Moreover, it has also been
established by this honourable court that the plaintiff knowingly boarded a heavily
loaded vehicle.
The plaintiff was warned by the 1 st defendant and the conductor of the said bus owned
by Daima Travellers Limited but the plaintiff however said that she was late hence she
did not mind being an extra passenger. This invokes the principle of Volenti Non Fit
Injuria (Voluntary assumption of risk).
On the issue of the road sign stated ‘Do Not Overtake’ the defendants aver that the road
sign was covered in a bush as could not easily been seen properly. The aforesaid road
sign was dilapidated and had been damaged impeding his visibility.
The defendant relies on the following authorities:
Mohammed v Mohammed the plaintiff was asked to get away from the behind of the
car that was stuck in the mad. The plaintiff failed to comply and the driver of the car
reversed the car, leading to the injuries sustained by the plaintiff. It was held that the
conduct of the plaintiff amounted to contributory negligence and the amount of
damages were divided into the ratio of 1:1.
Blake v Galloway (2004) CA. the Defendant threw a piece of wood bark at the plaintiff
hitting him in the eye causing serious injuries. They were throwing bark and twigs at
each other during the lunch break. The plaintiff and the defendant were members of a
jazz quintet (all about15years of age). The defendant relied on the plaintiff’s consent
and volenti non fit injuria. It was held that only recklessness or a very high degree of
carelessness is sufficient to breach the duty of care owed during horseplay. There is a
close analogy between organized sport and horseplay. The absence of formal rules in
horseplay ids not sufficient distinction, both are consensual. The plaintiff had consented
to the risk.
98
It is on the above that the defendants rests their case and pray that judgment be entered
against the plaintiff with costs.
DRAWN AND FILED BY:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O.BOX 70-00100,
NAIROBI.
TO BE SERVED UPON:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
99
FURAHA MINGI ………………………………………………. PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
TO:
KAULA AND COMPANY ADVOCATES
2ND FLOOR CANNON TOWERS
KENYATTA AVENUE
P.O. BOX 70-00100
NAIROBI
NOTICE OF JUDGEMENT
TAKE NOTICE that judgment in the above suit to will be delivered on day of 2014 at
9:00am in the forenoon or soon thereafter at chief magistrates court at Nairobi Milimani
commercial courts.
TAKE FURTHER NOTICE that if no appearance is made from you or your
representative, then the judgment will be delivered notwithstanding your absence.
DATED at Nairobi this 4th day of May, 2014.
OWANO AND COMPANY ADVOCATES
ADVOCATES FOR THE PLAINTIFF
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
100
FURAHA MINGI ………………………………………………. PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
REQUEST FOR JUDGEMENT
(Order 10 Rule 4)
The plaintiff request judgment against the defendant.
1. MKOSA NIDHAMU
2. DAIMA TRAVELLERS LIMITED
Who have failed to appear (file a defence).
The request is for interlocutory judgment for Kshs. 3,017,500/= and costs.
DATED at Nairobi this 6th day of May, 2014.
OWANO AND COMPANY ADVOCATES
ADVOCATES FOR THE PLAINTIFF
1. MKOSA NIDHAMU
2. DAIMA TRAVELLERS LIMITED
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO. 543 OF 2014
101
FURAHA MINGI ………………………………………………. PLAINTIFF
VERSUS
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
JUDGMENT
The plaintiff instituted this suit by filing a plaint and summons on 3rdday of April, 2014
and later served the defendants herein with the plaint and summons.
The defendants failed to enter appearance on the date specified in the summons hence
the plaintiff through his advocate MR.OWANO, filed for a request for judgment as a result
of the above this court gave an interlocutory judgment against the defendants for nonappearance this court granted the plaintiff damages after hearing of this formal proof.
The court also gave a decree order to that effect.
The defendants filed an application under certificate of agency asking this court to set
aside ex parte judgment and decree on the grounds of non-service. Miss Temwanani
counsel of the defendants argued that service was not effected properly to the defendants.
She further argued that this court ought to have examined the affidavit of service before
issuing an ex parte judgment against the defendants.
On examining the affidavit of service I discovered several irreparable flaws because
service had not been effected on either of the defendants. I therefore found it prudent to
set aside the ex-parte judgment order and decree and issue fresh service upon the
defendants.
The defendants entered appearance on the dates specified on the summons and filed a
defence. The plaintiff filed a application to amend the plaint citing that the 3 rddefendant,
Reality Insurance Company Limited had been erroneously enjoined in this suit and also
there was an error in the calculations of special damages prayed for in the defence.
The application was allowed and the 3 rd defendant was struck out as a party to this suit.
Miss Temwanani, counsel for defendants filed an application to amend the defence,
pursuant to order 8 rule of the Civil procedure rules on grounds that since plaintiff had
amended their plaint they also found it significant to amend their defence so as to tackle
squarely issues raised in the plaint. The application was allowed.
The plaintiff filed an application for interlocutory judgment and the defence to be struck
out on grounds that it was fictitious, frivolous, scandalous, vexatious and that it does not
raise triable issues.
The defendants filed a strong reply to the application citing that their defence raised bona
fide triable issues. Miss Temwanani argued that the plaintiff’s application was founded
102
on misinformation and was bad in law. I hereby found it that the defence was strong and
raised triable issues and the plaintiff subsequently ordered to file a reply to defence.
Mr. Owano, counsel for plaintiff argued that the 1st defendant was negligent by
disregarding a road sign and dangerously overtaking on a sharp bend causing an accident.
To further back this allegations produced the witness statement of Nyagwondo Linet
Moraa, the 1st witness of the plaintiff who was an eye witness of the accident. She stated
that the 1st defendant was dangerously driving the bus hence causing the accident.
He further produced the authorities to guide this court on assessment of damages in the
case of: LEONARD MUTUA MUTHAMA V JOHHN GICHUHI & OTHERS HCCC NO. 214 of
1997.
On reading the above authority, I discovered that it was right and helpful in these
circumstances.
Miss Temwanani, counsel for defendants argued that the 1 st defendant was not wholly
liable for the injuries of the plaintiff because the plaintiff had not fastened a seat belt, to
back this allegation she produced witness statement of Kibet Nehemiah, the 1 st
defendants witness who was sitting next to the plaintiff in the bus who testified to that
effect. She further argued that the road sign was covered by bushes and could not be seen
clearly .i found this notion inaccurate with evidence produced by the plaintiff. I therefore
find that the first defendant is wholly liable for the accident and the 2 nd defendant is
vicariously liable for the action of the 1 st defendant by virtue of being his employer.
This court therefore grants the plaintiffs special damages amounting ksh.3, 017,500/=
and general damages amounting to Kshs. 480,000/=.
With regard to the cost of this proceeding we order that each party won and also lost on
substantial points and only fair order is that each party bears its own costs.
I so order accordingly
Signed and Dated at Nairobi this 7th day of May 2014
R.ARWARI
(CHIEF MAGISTRATE)
103
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
FURAHA MINGI ……………………………………………….1ST PLAINTIFF
VERSUS
104
MKOSA NIDHAMU ………………………………………….…1ST DEFENDANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND DEFENDANT
JUDGMENT
REALITY INSURANCE COMPANY LIMITED sued as employees of one MKOSA NIDHAMU
following a road along the Nairobi-Mombasa highway in which the plaintiff sustained
minor injuries. The accident occurred on the morning of 1 st April, 2014 while the
plaintiff was travelling in a bus owned by the said Daima Travellers Limited. The
respondent sustained bodily injuries and incurred expenses. The appellants denied
liability and negligence attributed to them.
By a Plaint dated 3rd day of April, 2014 and filed on 4th day of May, 2014 the Plaintiff
sought damages against the First and Second Defendants both under the Fatal Accidents
(Cap. 32, Laws of Kenya) and the Law Reform Act, (Cap. 26, Laws of Kenya). Though the
Plaintiff testified and called 2 other witnesses the issue of liability was settled on 25th
day of April, 2014 when the parties through their counsel agreed that the Plaintiff
should bear liability at 30% and the Defendant at 70%. Thus, the only outstanding issue
is the quantum of damages payable to the Plaintiff.
The following documents were produced and admitted by consent of counsel for the
plaintiff and the defendants (c)Exhibit 1 –Receipts of payments made to Kenyatta National Hospital,
(d)Exhibit 2 –Voucher for Kshs9, 500.00 from Nairobi Hospital.
(e)Exhibit 3 – Police Abstract Report
(f) Exhibit 4 – Plaintiff's Pay slip for Kshs. 20,000/=per month
The Plaintiff tendered no evidence. However, in addition to the evidence tendered by
the Plaintiff and her two witnesses, (DW1 –an eyewitness), and DW3, (a herdsman),
Counsel also filed written submissions (dated 3rd day of April, 2014 but filed on4th day
of April, 2014 for the Plaintiff) and (dated 3rd day of April, 2014 and filed on the same
day for the Defendants) .I have considered both the evidence and the submissions. I will
therefore straight away go to the prime issue in this judgment, the question of quantum.
On the evidence tendered herein above, the quantum of damages shall due to
contributory negligence and volenti non fit injuria, the court awards amounts to Kshs.
1,517,500.00 and any interests thereof accrued calculated to Ksh. 500,000.00 totaling to
Kshs. 2,017,000.00 to be paid by the defendants to the plaintiff.
With regard to the cost of this proceeding we order that each party won and also lost on
substantial points and only fair order is that each party bears its own costs.
105
I so order accordingly
Signed and Dated at Nairobi this 8thday of May, 2014
R.ARWARI
(CHIEF MAGISTRATE)
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
MKOSA NIDHAMU ………………………………………….…1ST APPELLANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND APPELLANT
VERSUS
FURAHA MINGI ……………………………………………….PLAINTIFF
NOTICE OF APPEAL
106
(Under Rule 74 of the Court of Appeal Rules)
Take notice that the 1st and 2nd defendants above being dissatisfied with the decision of
the trial magistrate Honourable Arwari given at Nairobi on the 8thday of May, 2014,
intends to appeal to the High Court against the whole of the said decision.
The address for service of the appellants is case of Kaula and Company Advocates
P.O.BOX 70-00100, NAIROBI.
It is intended to serve copies of this notice on:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA
DATED at Nairobi this 10thday of May, 2014.
OWANO AND COMPANY
ADVOCATES FOR THE APPELLANTS.
TO:
The Deputy Registrar of the High Court of Kenya at Nairobi
LODGED at the High Court Registry this…………. Day of………2014.
……………………
DEPUTY REGISTRAR
107
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
MKOSA NIDHAMU ………………………………………….…1ST APPELLANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND APPELLANT
VERSUS
FURAHA MINGI ……………………………………………….PLAINTIFF
108
(Being an application from the judgment, decree order of the chief magistrate court at
Nairobi before Honourable Arwari dated 8th day of May, 2014 in civil suit no. 543of
2014).
MEMORANDUM OF APPEAL
MKOSA NIDHAMU, DAIMA TRAVELLERS LIMITED, the above named appellants appeals
to the high court against the whole/part of the above mentioned decision on the
following grounds namely;
1. That the learned trial magistrate erred in fact by failing to consider the supposed
road sign ‘DO NOT OVERTAKE’ was in a duplicated state hence could not be seen
by the motorist hence exempting the 1 st appellant from liability.
2. That the learned trial magistrate erred in fact by not taking into consideration
the fact that the accident could not be prevented.
3. That the learned trial magistrate erred in fact by not considering that the
respondent was not wearing a seat belt hence the principle of contributory
negligence.
4. That the learned trial magistrate erred in fact by awarding the respondent
damages amounting to kshs.9, 350,000 that is in excessive of what the
respondent had prayed for in the plaint.
Accordingly, the appellant prays that this Honourable court be pleased to issue orders
that:
1. The appeal is allowed with costs.
2. The judgment/ decree delivered on the aforesaid date be reversed or varied with
costs.
LODGED at the High Court Registry this 11thday of May, 2014.
OWANO AND COMPANY
ADVOCATES FOR THE APPELLANTS.
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
109
TO BE SERVED UPON:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
REPUBLIC OF KENYA
IN CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
CIVIL CASE NO.543 OF 2014
MKOSA NIDHAMU ………………………………………….…1ST APPELLANT
DAIMA TRAVELLERS LIMITED ...…………………………..2ND APPELLANT
VERSUS
FURAHA MINGI ……………………………………………….PLAINTIFF
RECORD OF APPEAL
I Regina Mposi, an advocate of the High Court of Kenya practicing as such in the law firm
of Kaula and Co. Advocates do hereby certify that this record of appeal has been
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prepared on the documents and proceedings supplied by the chief magistrate court and
in accordance with the Civil Procedure Rules.
DRAWN AND FILED BY:
OWANO AND COMPANY ADVOCATES,
7TH FLOOR, REINSURANCE PLAZA,
MOI AVENUE,
P.O. BOX 9043-00100,
NAIROBI, KENYA.
TO BE SERVED UPON:
KAULA AND COMPANY ADVOCATES,
2ND FLOOR, CANNON TOWERS,
KENYATTA AVENUE,
P.O. BOX 70-00100,
NAIROBI.
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