[2015] KEHC 4825 (KLR)
The court found that there was indeed an arithmetical error in the calculation of damages in the original judgment. The correct total of the awards under the various heads amounted to KShs. 1,678,655. After deducting KShs. 100,000 for loss of expectation of life, the correct sum to be awarded was KShs. 1,578,655....
Source-derived case information.
- Citation
- [2015] KEHC 4825 (KLR)
- Parties
- Plaintiff: Francis Wainaina Kirungu (suing as the personal representative of the estate of John Karanja Wainaina); Defendant: Elijah Oketch Adellah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 191 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application for Review of Judgment
- Outcome
- Application for review allowed; judgment amended to correct arithmetical error.
- Judges
- JK Sergon
- Legal Topics
- Review of Judgment, Arithmetical Mistake, Personal Injury Damages, Fatal Accidents Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Wainaina Kirungu (suing as the personal representative of the estate of John Karanja Wainaina)
Plaintiff
Elijah Oketch Adellah
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there was an arithmetical error in the calculation of damages awarded to the Plaintiff.
- 2 Whether the judgment should be reviewed and amended to correct the alleged error.
Ratio Decidendi
The court found that there was indeed an arithmetical error in the calculation of damages in the original judgment. The correct total of the awards under the various heads amounted to KShs. 1,678,655. After deducting KShs. 100,000 for loss of expectation of life, the correct sum to be awarded was KShs. 1,578,655. The court held that the Plaintiff was entitled to have the judgment reviewed and amended to reflect the correct calculation, as permitted under Order 45 Rule 1 of the Civil Procedure Rules and Sections 80 and 99 of the Civil Procedure Act. The existence of a notice of appeal did not preclude the court from correcting an arithmetical error. The application for review was therefore...
Court Disposition
Application for review allowed; judgment amended to correct arithmetical error.
Orders
- The notice of motion dated 11th March 2015 is allowed as prayed.
- The judgment is amended to reflect the correct award of KShs. 1,578,655 after deduction of KShs. 100,000 under the Fatal Accidents Act.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 191 OF 2013
FRANCIS WAINAINA KIRUNGU
(suing as the personal representative of the
estate of JOHN KARANJA WAINAINA) deceased.........................PLAINTIFF
VERUS
ELIJAH OKETCH ADELLAH........................................................DEFENDANT
RULING
1. The Plaintiff sued the Defendant in this suit seeking recovery of damages from an accident which occurred on 17th August, 2012. On 6th February, 2015, this court, Ougo J, entered judgment in favour of the Plaintiff and awarded KShs. 1,478,655/- as damages.
2. Plaintiff has now filed a notice of motion dated 11th March, 2015 seeking the review of the said judgment and subsequent decree. It is averred in the supporting affidavit of Rose Obaga counsel in conduct of the matter sworn on the same date that there is an arithmetic mistake arising out of an accidental slip in calculation of the damages awarded to the Plaintiff under various heads which error can be corrected by court. The deponent has urged this court to re-calculate the damages as follows:-
Damages under Fatal Accidents Act KShs. 1,400,000/=
Pain and suffering KShs. 50,000/=
Special Damages KShs. 128,655/=
Loss of expectation of life KShs. 100,000/=
Total KShs. 1,678,655/=
Less loss of expectation of life KShs. 100,000/=
Total damages awarded KShs. 1,578,655/=
3. The application is opposed by the replying affidavit of L.W. Kamau counsel having conduct of the matter on behalf of the Defendant. He contended that there was no arithmetical error since the Plaintiff cannot benefit twice and hence the subtraction of KShs. 100,000/=. It was further contended that the Plaintiff has filed a notice of appeal against the judgment hence the same cannot be subject of two judicial processes at the same time.
4. This application has been brought under order 45 rule 1 of the Civil Procedure Rules and Section 1A, B, 3A, 80 and 99 of the Civil Procedure Act.
5. A reading of the judgment reveal that the Judge awarded as follows:-
Special damages KShs. 128,655/=
Loss of expectation of life KShs. 100,000/=
Pain and suffering KShs. 50,000/=
Loss of dependency KShs. 1,400,000/=
The above figures total to KShs. 1,678,655/=. The award under the Fatal Accidents Act i.e ksh.100,000/= was deducted leaving a sum of KShs. 1,578,655/=. In the final part of the judgment however, it has been indicated that the award of KShs. 100,000/= under the Fatal Accidents is deducted from KShs. 1,578,655/=. Having re-calculated the awards granted as herein above stated I find that there was indeed an arithmetical error and that the correct figure after deduction of the award under the Fatal Accidents Act is KShs. 1,578,655/=.
In the final analysis I find the notice of motion dated 11th March 2015 to be well founded. It is allowed as prayed with costs. The judgement should be amended to reflect the finding in this ruling.
Dated, signed and delivered in open court this 15th day of May 2015.
J. K. SERGON
JUDGE
In the presence of:
………………………………………. for the Plaintiff
……………………………………….for the Defendant