[2019] KEHC 247 (KLR)
The court found that the intention in its original judgment was to apportion liability equally between the respondents, not between the appellant and respondents. The error in the judgment was apparent on the face of the record, as the evidence and reasoning indicated that both respondents, who managed and...
Source-derived case information.
- Citation
- [2019] KEHC 247 (KLR)
- Parties
- Applicant: Jentrix Natecho; Respondent: Kenya Power & Lighting; Respondent: John Masengeli; Respondent: Justine Muriuki
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 37 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Judgment
- Outcome
- Application for review allowed; liability apportioned equally between respondents at 50:50%.
- Judges
- HK Chemitei
- Legal Topics
- Review of Judgment, Apportionment of Liability, Error on Record, Motor Vehicle Accident
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jentrix Natecho
Applicant
Kenya Power & Lighting
Respondent
John Masengeli
Respondent
Justine Muriuki
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the court made an error on the face of the record in apportioning liability between the parties.
- 2 Whether the judgment should be reviewed under Order 45 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the intention in its original judgment was to apportion liability equally between the respondents, not between the appellant and respondents. The error in the judgment was apparent on the face of the record, as the evidence and reasoning indicated that both respondents, who managed and controlled the vehicles, should each bear 50% liability. The court exercised its power under Order 45 of the Civil Procedure Rules to correct the error and clarify that liability is apportioned equally between the respondents, with all other terms of the judgment remaining unchanged.
Court Disposition
Application for review allowed; liability apportioned equally between respondents at 50:50%.
Orders
- Liability is apportioned equally between the respondents at 50:50% each.
- The rest of the terms of the judgment remain the same.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL APPEAL NO. 37 OF 2015
JENTRIX NATECHO...........................................APPLICANT
VERSES
KENYA POWER & LIGHTING.............1ST RESPONDENT
JOHN MASENGELI................................2ND RESPONDENT
JUSTINE MURIUKI...............................3RD RESPONDENT
RULING
1. The Applicant’s application dated 26th September, 2019 seeks to review the judgment of this court dated 4th April, 2019 in which it apportioned liability between the Appellant and the Respondents at 50% each. The Applicant in her application avers that this was an error on record which this court can review pursuant to the provisions of Order 45 of the Civil Procedure Rules. Her affidavit dated 27th September, 2019 state as much.
2. The Respondent vide the replying affidavit of the 2nd Respondent objects to the application and avers that this court was right in the apportionment of liability the way it did.
3. Having looked at the application and taking cognisance of the ability accorded to this court by the provisions of Order 45 stated above, the application is meritorious. The same is premised as espoused under paragraph 18 and 19 of the judgment in which the court stated as follows;
“ The issue of liability is worth considering also. From the evidence of both drivers it is clear that they each blamed each other. The evidence of PW3, the police officer seemed to suggest even from the sketch plans that the accident occurred almost in the middle of the road.
In the premises I do find that both motor vehicles should shoulder equal blame. I shall apportion each 50:50 percentage liability…”
4. Clearly that was the intention of the court. The Respondents managed and controlled the vehicles and not the Appellant/Applicant.
5. The error is thus corrected so that liability is apportioned equally and for avoidance of doubt between the Respondents at 50:50% each.
6. The rest of the terms of the judgment remains the same.
7. Costs of this application shall be in the cause
Dated, signed and delivered in open court at Kitale this 18th day of December, 2019.
................................
H.K. CHEMITEI
JUDGE
18/12/19
In the presence of:-
Parties Absent
Court Assistant – Silvia
Ruling read in open court.