[2020] KEHC 3825 (KLR)
The court found that the judgment delivered on 12th July, 2018 contained an arithmetical error in the computation of loss of dependency, as the one third fraction directed by the court was omitted from the calculation. This constituted an error apparent on the face of the record, justifying review and correction...
Source-derived case information.
- Citation
- [2020] KEHC 3825 (KLR)
- Parties
- Appellant: Mango Chimaren; Appellant: William Gatei Muiruri; Respondent: Efreli Ambiyo; Respondent: Ezekia Gwendo (Suing as the administrator of the Estate of Wellington Musembi (Deceased))
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 225 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Judgment
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Review of Judgment, Arithmetical Errors, Loss of Dependency, Contributory Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mango Chimaren
Appellant
William Gatei Muiruri
Appellant
Efreli Ambiyo
Respondent
Ezekia Gwendo (Suing as the administrator of the Estate of Wellington Musembi (Deceased))
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there was an error apparent on the face of the record in the computation of loss of dependency in the judgment delivered on 12th July, 2018.
- 2 Whether the court should review its judgment to correct the computation error under Section 80 and Section 99 of the Civil Procedure Act.
Ratio Decidendi
The court found that the judgment delivered on 12th July, 2018 contained an arithmetical error in the computation of loss of dependency, as the one third fraction directed by the court was omitted from the calculation. This constituted an error apparent on the face of the record, justifying review and correction under Section 80 and Section 99 of the Civil Procedure Act. The court recalculated the loss of dependency as 5,195 x 12 x 17 x 1/3, less 20% contributory negligence, resulting in a final award of Kshs. 282,608. The application for review was allowed, and the judgment was corrected accordingly.
Court Disposition
application allowed
Orders
- The judgment is reviewed to correct the computation of loss of dependency as 5,195 x 12 x 17 x 1/3, less 20% contributory negligence, resulting in Kshs. 282,608.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CIVIL APPEAL NO. 225 OF 2012
MANGO CHIMAREN........................................................1ST APPELLANT
WILLIAM GATEI MUIRURI...........................................2ND APPELLANT
VERSUS
EFRELI AMBIYO
EZEKIA GWENDO (Suing as the
administratorof the Estate of
WELLINGTON MUSEMBI (Deceased).............................RESPONDENTS
(Appeal from the judgment of the Senior Principal Magistrate Nairobi Milimani Law Courts R O Oganyo delivered on 17th April 2012 in CMCC NO.1354 of 2010)
RULING
This is an application dated 14th January, 2020 seeking a review of the judgment of this court delivered on 12th July, 2018, whereby it was held the loss of dependency due and payable to the respondent should be based on one third of the earnings of the deceased.
In the calculations appearing in the judgment however, one third was excluded from that computation. It is clear that, this is an error apparent on the face of the record which should be corrected under Section 80 of the Civil Procedure Act, and Order 45 rules 1 and 2 of the Civil Procedure Rules. The application is opposed but there is no reason whatsoever to oppose the said application.
I am also aware of Section 99 of Civil Procedure Act which is intended to address any slip based on arithmetical errors among others. This is one such case.
The foregoing being the case, the calculations should be as follows, 5,195 x 12 x 17 x1/3 = Kshs 353,260/= less 20% contributory negligence, which is Kshs. 70,652/= leaving a balance of Kshs. 282,608/=.
Accordingly the application is allowed as above with no order as to costs.
Dated, signed and delivered at Nairobi this 30th day of July 2020.
A. MBOGHOLI MSAGHA
JUDGE