[2023] KEHC 26938 (KLR)

Blooming Bliss Kenya Limited v Ocean Freight (EA) Limited & another (Civil Suit 53 of 2018) [2023] KEHC 26938 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26938 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 53 of 2018

DKN Magare, J

December 14, 2023

Between

Blooming Bliss Kenya Limited

Plaintiff

and

Ocean Freight (EA) Limited

1st Defendant

Mediterranean Shipping Company Sa

2nd Defendant

Ruling

1. The Applicant made an application dated 18/10/2023. It is to correct a clerical or arithmetic error or slip. In paragraph 127 of the Judgment the court entered Judgment at USD 48,384 with costs of USD 2,347. However, in the final analysis, the court did not include the costs and the correct tabulation, though indicated to be a review is made under Section 99 of the Civil Procedure Act. The said section reads as doth: -“Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”

2. The respondent filed grounds of opposition to the effect that a notice of Appeal has been filed under Rule 77 of the Court of Appeal Rules and as such this court lacks jurisdiction to handle this matter.

3. Applicant submitted that there is no dispute as to the existence of this clerical error. The application is thus based on Section 80 of the Civil Procedure Act, which provides: -“Any person who considers himself aggrieved—(a)By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)By a decree or order from which no appeal is allowed by this Act, may apply for a review of Judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit." Similarly, Order 45 of the Civil Procedure Rules outlines the conditions under which a review of Judgment may be sought. Additionally, Section 99 of the Civil Procedure Act allows the correction of clerical or arithmetical mistakes in judgments. In the precedent set by the case of Nation Media Group & another v Awale Transporters Limited [2022] eKLR, the court affirmed the necessity of a review to correct self-evident errors or omissions.

4. They further submitted that a Notice of Appeal is not a bar to applying for review. This was as per the clarification by the said court as doth in the case of HA v LB [2022] eKLR,“…is a formal notification of an intended appeal and does not constitute the commencement of an appeal.” The filing of such notice does not preclude the court from exercising its jurisdiction to rectify errors apparent on the face of the record. Quoting Odunga J, as then he was: -"The mere fact that a party has given a Notice of intention to appeal does not amount to an appeal for the purposes of review."

5. In this instance, the Applicant filed a Notice of Appeal on 27th September 2023 as a precautionary measure before obtaining a full copy of the written Judgment on 12th October 2023. The court, in Yani Haryanto v. E. D. & F. Man (Sugar) Ltd Civil Appeal No. 122 Of 1992, held that the pursuit of a review option renders the notice of appeal purposeless. Instantly the Applicant does not intend to proceed with the Appeal.”

6. The application was opposed.

Analysis 7. It is important to note that the court has been moved under its review jurisdiction, unnecessarily. What exists is not an error apparent on the face of the record but clerical and slip under section 99 of the Civil Procedure Act.

8. On 20/9/2023, I allowed the suit with costs of USD 2347. This is what was in the final judgment that I read to the parties. I have had to re-read the Teams© Recording on the judgment I read. It indicates I read the said costs of USD 2347. This is the same judgment I transmitted via email to my office assistant to print final copies.

9. It is clear in the final printed copy at the disposition the costs are omitted. However, they are awarded in the body of the judgment. It is therefore clear that while printing the final copy of the Judgment, clause (b) of the draft judgment for USD 2,347 is omitted.

10. Further the calculations in the body and at the end are different. It is important to note that the slip rule is not a time for making changes in figures. Penalties for breach or delay is provided under the general principles of contract law under the Saudi Civil Transactions Law. It applies the principle of fiqh.

11. A fundamental rule of fiqh is that damages can only be awarded to compensate for the loss of tangible property. It is the established jurisprudence of the Board of Grievances not to award compensation for merely possible harm, since compensation must be for an actual damage certain to have occurred. Therefore, I had awarded 20% of the actual damages of 40,541.

12. Thus the penalty is 20% of 40,451 which is USD 8090. 2, under the general principles of contract law under the Saudi Civil Transactions Law. It is clear that these were the figures, I was using in arriving at the penalty, arriving at USD 8090 as rounded off. Consequently, I hereby correct the clerical slip. I have also seen that the word control appears instead of contract in Saudi law. It is equally corrected.

13. I take this early chance to apologize to the parties for allowing these slips to pass unnoticed. The slip is clear. Before leaving it is important to note that the slip is not corrected under order 45. It is not a review but a correction of the arithmetic error. The review goes to the final merit of the cases.

14. The objection is thus misplaced as in the final analysis, once the arithmetic errors are brought to the attention of the court, the court is obligated to correct them. The court can actually be moved or on act on its own motion. Each party to bear their costs.

15. In the circumstances I correct the slip and arithmetic errors under Section 99 of the Civil Procedure Act as follows: -a.Cost of goods and freight USD 40,451/=b.Penalty under Saudi Law USD 8,090/=Subtotal USD 48,541/=.c.Costs USD 2,347/=.

Determination 16. In the final analysis after correcting the slip and arithmetic errors, I make the following orders: -i.I enter judgment as follows: -ii.Judgment be entered on liability at 100% liability for breach of contractiii.On quantum judgment is entered as follows: -1. The value of the goods -cost and freight USD 40,4512. Penalty being 20% of USD 40,451 under Saudi Law Article 72 –under the principles of Saudi General Contract Law, under CTL – USD 8090Subtoal Total 48,541iv.Incidental costs NILv.Legal costs NILvi.General damages nilvii.The rest of the claim is dismissed.viii.The award therefore is forix.Costs USD 2,347

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. KIZITO MAGAREJUDGE