[2017] KEHC 2762 (KLR)
The court found that the omission to expressly state the applicability of the agreed 80:20 liability ratio to the general damages in the final orders was an oversight. Since the parties had entered a binding consent on liability, and the court had already taken this into account in its judgment, it was necessary to...
Source-derived case information.
- Citation
- [2017] KEHC 2762 (KLR)
- Parties
- Appellant: Felix Kitavi Wambua; Respondent: Njagi Mwendwa
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 33 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application for Interpretation of Judgment
- Outcome
- application allowed; judgment amended to clarify damages subject to 80:20 ratio
- Judges
- FN Muchemi
- Legal Topics
- Apportionment of Liability, Interpretation of Judgments, General Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Felix Kitavi Wambua
Appellant
Njagi Mwendwa
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Interpretation of Judgment
Legal Issues
- 1 Whether the agreed liability ratio of 80:20 applies to the general damages awarded to the cross-appellant.
- 2 Whether the omission to indicate the ratio in the final orders was an oversight that requires correction.
Ratio Decidendi
The court found that the omission to expressly state the applicability of the agreed 80:20 liability ratio to the general damages in the final orders was an oversight. Since the parties had entered a binding consent on liability, and the court had already taken this into account in its judgment, it was necessary to amend the judgment to clarify that the general damages awarded were subject to the agreed ratio. The court exercised its power to correct the accidental omission to ensure the judgment accurately reflected the parties' agreement and the court's intention.
Court Disposition
application allowed; judgment amended to clarify damages subject to 80:20 ratio
Orders
- Paragraph 19 of the judgment is amended to state that the sum of Kshs.1,850,000 is subject to the agreed ratio of 80:20.
- The amount payable to the cross-appellant is Kshs.1,480,000.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL APPEAL NO. 33 OF 2014
(An appeal from the Judgment/Decree of Acting Resident Magistrate, Siakago in PMCC No. 72 of 2013 dated 29/12/2014)
FELIX KITAVI WAMBUA .......….APPELLANT
V E R S U S
NJAGI MWENDWA................ RESPONDENT
R U L I N G
1. This is a ruling on the application dated 24/02/2017 seeking for interpretation of the court's judgment delivered on 31/10/2016. The grounds in the supporting affidavit is that the court did not indicate in its judgment whether the agreed ratio of 80:20 was applicable in the general damages of Kshs.1,850,000/= awarded to the cross-appellant.
2. I have perused the record which shows that on 12/06/2014 the parties entered a consent on liability at 80% in favour of the plaintiff and 20% in favour of the defendant. The consent was taken into account in the lower court judgment and in paragraph 10 of this court's judgment.
3. The omission of the applicability of the ratio of 80:20 in the final orders of the court was simply an oversight by the court.
4. For that reason, this court will proceed to include the very vital information on the agreed ratio.
5. It is hereby ordered that paragraph 19 is hereby amended by adding the following words immediately after “Kshs.1,850,000/=” as follows:-
“which is subject to the agreed ratio of 80:20. The amount payable to the cross-appellant is Kshs.1,480,000/=.”
6. It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 17TH DAY OF OCTOBER, 2017.
F. MUCHEMI
JUDGE
In the presence of:-
Ms. Muriuki for Ithiga for Respondent