REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATES’ COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL COURTS
CIVIL CASE NUMBER E OF 2024

SUSANA LICHETE ESHIKHONI

(Suing as personal representative of the Estate of
BYRON ESHIKHONI (Deceased) ………………….………............................ PLAINTIFF

VERSUS
ELIKANAH INDIKA ……………………...………………………………... DEFENDANT

STATEMENT OF DEFENCE AND COUNTER-CLAIM

1. Save as is herein expressly admitted, the Respondents deny the singular and several
allegations contained in the Plaint dated 12 April 2024 as if the same were set out herein
below and traversed seriatim.

2. The contents of paragraphs 1, 2, 3 and 4 of the Plaint are admitted in so far as the same are
merely descriptive of the parties save that the Defendant’s address for service for purposes of
this suit shall be under care of Onyalo Biro Advocates, Shule ya Sheria Building Gate C,
Langata South Road Box 86549 – 00100 Nairobi. onyalobiroadvocates@gmail.com.
0790987654.

3. The Defendant denies the alleged particulars of negligence outlined in paragraph 5 and puts
the Plaintiff to strict proof thereof. The Defendant further denies the content of paragraph 6.

4. The Defendant denies any liability for the Plaintiff's injuries, if any, as described in paragraph
7, and contends that such injuries were not a result of the Defendant's actions.

5. The Defendant admits ownership of motor vehicle registration number KBU 553C and
confirms that he was operating the vehicle in the early hours of 1 st March 2022, at
approximately 2:00 a.m. when the incident occurred. However, the Defendant denies any
allegations of negligence in the operation, control, or management of the vehicle, which are
alleged to have caused the accident.

6. The Defendant avers that he exercised reasonable care while driving the vehicle and took
evasive action by swerving off the road to avoid striking Mr. Byron Eshikhoni and several
other individuals who, displaying signs of intoxication and disorder, suddenly entered the
road. Due to this evasive maneuver, the Defendant sustained head injuries and required
medical treatment at Nairobi Hospital, incurring significant medical expenses as will be
 further detailed below. Furthermore, the vehicle KBU 553C which had third party insurance
cover was completely written off after the accident.

7. The Defendant denies ever being served with a demand letter and notice of intention to sue as
alleged in paragraph 8 and puts the Plaintiff to strict proof thereof.

8. The jurisdiction of the court as indicated in paragraph 8 is admitted.

9. The Defendant admits the contents of paragraph 10.

COUNTER CLAIM

10. The above Defendant reiterates each of the facts set out in the statement of defense above.

11. The Defendant hereby counterclaims against the Plaintiff, in relation to the same set of facts
as pleaded in the Plaintiff's Statement of Claim.

12. The Defendant avers that on or around the 1/3/2022 and at about 2:00 am as he was lawfully
driving Motor Vehicle registration Number KBU 553C along Lang’ata South Road, Mr.
Byron Eshikhoni, and several other individuals, whom, displaying signs of intoxication and
disorder, suddenly entered the said road. Resultantly, the Defendant made an evasive
maneuver to avoid colliding with Mr. Byron Eshikhoni and the other individuals.

13. The Defendant avers that as a result of the Plaintiff’s negligence, the Defendant sustained
serious head injuries and incurred medical expenses for the treatment of his injuries and the
related expenses.

14. The Defendant avers that the deceased was solely responsible for the accident leading to his
demise, as he negligently and recklessly entered the roadway without regard for oncoming
traffic, thereby causing the collision with the Defendant's vehicle.

PARTICULARS OF NEGLIGENCE

(a) Cutting across the path of an incoming vehicle where it is unlawful to do so;
(b) Failing to take evasive action in the circumstances;
(c) Failing to give way; and
(d) Failing to keep a proper lookout when entering the road.
 PARTICULARS OF INJURY

(a) Brain injury;

(b) Multiple lacerations, face;
(c) Bruises right shoulder with multiple lacerations;
(d) Laceration right ear and right side neck; and
(e) Colles fracture (left wrist).

PARTICULARS OF SPECIAL DAMAGES

(a) Medical bills and treatment at the Nairobi Hospital amounting to Ksh. 1,600,000.
(b) Pre-accident value of motor vehicle KBU 553C amounting to Ksh. 1,200,000.

15. The Defendant seeks judgment against the Plaintiff for:

a) Special damages in the sum of Ksh. 1,600,000 for medical expenses incurred;
b) Special damages in the sum of Ksh. 1,200,000 for the value of the vehicle at the time of
the accident;
c) Costs of this counterclaim;
d) Interest on (a) to (c) above at the prevailing court rate from 1/3/2022 until payment in
full;
e) Any other reliefs that the Court may deem fit.

Dated at Nairobi this day of 2024

Onyalo Biro Advocates

Advocates for the Defendant

Drawn & Filed By

Onyalo Biro Advocates
Shule ya Sheria Building
Gate C (Next to the Restaurant),
Box 900 – 00100
Nairobi.
Onyalobiro@gmail.com
0711708988
PRACTICE NUMBER LSK 2022/8460

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES’ COURT OF KENYA AT NAIROBI
 MILIMANI COMMERCIAL COURTS
CIVIL CASE NUMBER E OF 2024

SUSANA LICHETE ESHIKHONI

(Suing as personal representative of the Estate of
BYRON ESHIKHONI (Deceased) ………………….………............................ PLAINTIFF

VERSUS
ELIKANAH INDIKA ……………………...………………………………... DEFENDANT

VERIFYING AFFIDAVIT TO THE COUNTER CLAIM

I, Elikanah Indika, resident of Kajiado within the Republic of Kenya and of Post Office Box 114 –
00206 Kiserian do hereby make oath and state as follows:
1. That I am the Defendant in the above titled matter and the deponent to this affidavit.
2. That I have read the Counterclaim filed herein and I am familiar with the facts and
circumstances contained therein.
3. That the facts deposed to in the Counterclaim are true to the best of my knowledge,
information, and belief.
4. That the claims made in the Counterclaim against the Plaintiff arise from the same
transaction and occurrences as pleaded in the Plaintiff's Statement of Claim.
5. That I verily believe that the Plaintiff, Byron Eshikhoni, was solely responsible for the
accident leading to his demise and the consequential losses suffered by the Defendant.
6. That this affidavit is made in support of the Counterclaim filed herein and for no other
ulterior motive.

Sworn at Nairobi }
By the said Elikanah Indika } ……………………………..
This day of 2024 } Deponent
Before Me }
}
}
}
Commissioner for Oaths }

Drawn & Filed By

Onyalo Biro Advocates Advocates
Shule ya Sheria Building,
Mutula Kilonzo Hall,
Lang;ata South Road
Box 24154 – 00100
Nairobi.
wakilikurutuchambers@gmail.com
0700000005.
PRACTICE NUMBER LSK 20242/4056