RE: MILIMANI CMCC 11100 OF 2018

KASISI KYENZE VS KENNEDY KARANJA MAINA

The above matter refers.

Kindly find herein a considered legal opinion on both liability and quantum for your
consideration and further instructions.

BRIEF FACTS

The plaintiff herein filed the suit on claiming damages, costs and interests of the suit arising
out of an accident which occurred on 5 th April, 2018 along outering/ Jogoo Road involving the
plaintiff and your insured motor vehicle KBP 840W where the plaintiff, allegedly sustained
bodily injuries.

We are yet to receive the claim form and/or any defense supporting documents from you
and/or your insured. We therefore opine that we should try and settle this claim out of court.

1. LIABILITY

The plaintiff alleges that your insured’s driver drove motor vehicle Registration
Number KBP 840W so carelessly and negligently causing it to veer off the road and
knock down the plaintiff thus inflicting severe bodily injuries to the plaintiff.

Under this limb the conventional award is at 70% to a ratio of 30% in favour of the
Plaintiff. We therefore opine that the Plaintiff be persuaded to concede liability in the
range of 30% - 40%.

1. QUANTUM

As per the Plaint and the medical report of one Dr. Wambugu P.M, the Plaintiff
sustained the following injuries;

i. Mild head injury with occipital scalp lacerations

ii. Fracture left clavicle
iii. Fracture left scapula
iv. Fracture right ulna
v. Blunt abdominal trauma
vi. Blunt chest trauma

In assessing damages, the general method of approach by the Court is, comparable injuries
should as far as possible be compensated by comparable awards.

We are thus guided by the decision of the Court in CATHERINE GATWIRI AND PETER
MWENDA KARAAI [2018] EKLR where the court substituted an award of Kshs. 1,500,000
with Kshs. 500,000 where the plaintiff had sustained the following injuries; cut wound to the
forehead, fracture of the left scapula, fracture of the left clavicle, fracture of 3 ribs and
compound fracture of the tibia and fibula.

We also refer to the case of GEORGE KINYANJUI T/A CLIMAX COACHES & ANOTHER
VS HASSAN MUSA AGOI [2016] EKLR, general damages were reviewed downwards from
kshs. 800,000 to Kshs. 450,000 where the plaintiff has suffered the following injuries; blunt
trauma to the neck, fracture of the left clavicle, fracture of the ribs, blunt trauma to the spinal
cord and right scapula area and dislocation of left shoulder joint.

(c) Special damages

As to special damages, it is trite law that the same must be specifically pleaded and strictly
proven before they are awarded. The Plaintiffs pleaded special damages in the sum
Kshs.106,634.00 being charges for obtaining p3 form, medical report, medical expenses and
certificate of search (copies of the receipts are attached). As such, the court is likely to award the
special damages.

(d) Costs and interests

Ideally, a plaintiff is entitled to cost where demand was issued before institution of the suit.
However, in most cases the court awards cost to a successful litigant irrespective of whether
demand was made or not. We note that the TPA issued a demand which entitles them to an
award of costs and interests in the suit.

CONCLUSION

In light of the foregoing, we recommend an attempt to amicable settlement of the matter to

avert escalation of costs. Kindly therefore give us your reasonable parameters within which we
can invoke negotiation with the plaintiff’s advocates. With your instructions we can initiate out
of Court settlement of this claim. Kindly let us here your position on the same.

We await your prompt response.

Yours faithfully,

Mose, Mose & Mose & Co. Advocates.