[2010] KEHC 3422 (KLR)
The court found that the omission of damages for loss of future earnings in the original judgment was an error apparent on the face of the record, as the plaintiff had specifically pleaded and provided evidence for this head of damages. The court accepted the applicant's evidence of monthly earnings and, considering...
Source-derived case information.
- Citation
- [2010] KEHC 3422 (KLR)
- Parties
- Plaintiff: Charles Mwavita Mwangome; Defendant: Grace Anyango
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 57 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application for Review of Judgment
- Outcome
- application for review allowed; judgment reviewed to include award for loss of future earnings
- Judges
- DO Ohungo
- Legal Topics
- Review of Judgment, Loss of Future Earnings, Personal Injury Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mwavita Mwangome
Plaintiff
Grace Anyango
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the omission of damages for loss of future earnings in the original judgment constituted an error apparent on the face of the record.
- 2 Whether the plaintiff is entitled to damages for loss of future earnings and the appropriate quantum.
Ratio Decidendi
The court found that the omission of damages for loss of future earnings in the original judgment was an error apparent on the face of the record, as the plaintiff had specifically pleaded and provided evidence for this head of damages. The court accepted the applicant's evidence of monthly earnings and, considering the plaintiff's age and the uncertainties of life, applied a multiplier of 15 years and a multiplicand of Kshs. 10,000 per month to arrive at a total award of Kshs. 1,800,000 for loss of future earnings. The judgment was reviewed to include this award, and costs of the application were granted to the applicant.
Court Disposition
application for review allowed; judgment reviewed to include award for loss of future earnings
Orders
- Judgment reviewed to include Kshs. 1,800,000 as damages for loss of future earnings.
- Costs of the application awarded to the applicant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
Civil Suit 57 of 2007
CHARLES MWAVITA MWANGOME……...…..…..PLAINTIFF
-VERSUS-
GRACE ANYANGO ………….……………. …….DEFENDANT
R U L I N G
The Notice of Motion application dated 30th July 2007 is made under Order XLIV Rule 1 (1) (a) of the Civil Procedure Rules and section 3A Civil Procedure Act, seeking that the judgment and consequential order/decree made on 15-7-09 be reviewed to include the claim for loss of future earnings and the same be assessed. It is premises on grounds that there was an error apparent on the face of the record because the plaintiff pleaded for damages for loss of future earnings in the plaint but in the judgment and consequential orders/decree made on 15-7-09, the same was not included on the pleadings.
In the affidavit supporting the application, Mr. Bosire, Counsel for applicant deponed that the finding by the Court Constituted an error apparent on the face of the record yet the plaintiff testified that he had lost his leg and could no longer engage in any income generating activity.
I have re-read the plaint dated 3-8-07 and confirm that lost earnings was pleaded and sought as a prayer and I erred in making a finding that the same was not specifically pleaded – for that reason the prayer to review the judgment has merit.
The applicant had produced salary vouchers from the firm of Muranje and Co. Advocates showing that he used to earn Kshs. 10,000/- per month and that he has now been unable to effectively discharge his duties as a result of his disability.
It was submitted by his counsel that at the time of the accident, the plaintiff was aged 31 years and Mr. Bosire suggested using a multiplier of 24 and a multiplier card of 10,000/- to give a sum of Kshs. 2,880,000/- as damages under that head.
I take into consideration the vagaries of life, the current trends in life expectancy in Kenya and I think a multiplier of 15 years is appropriate using the same multiplicand suggested by Counsel to work out as follows:
15 x 10,000 x 12 = 1,800,000/-
(One million, eight hundred thousands only).
I award costs of this application to the applicant.
Delivered and dated this23rd day of February 2010 at Malindi.
H. A. Omondi
JUDGE