[2018] KEHC 8287 (KLR)
The High Court held that the lower court, having delivered its judgment on 1st July, 2004 apportioning liability at 30% to the appellant and 70% to the 2nd respondent, became functus officio and lacked jurisdiction to revisit or alter that apportionment. The subsequent ruling by the lower court on 2nd September,...
Source-derived case information.
- Citation
- [2018] KEHC 8287 (KLR)
- Parties
- Appellant: Rainbow Manufacturers Limited; Respondent: Haron Monyi Muli; Respondent: The Hon. Attorney General of the Republic of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 561 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Review/clarification of Judgment
- Outcome
- Application for review/clarification partially succeeds; clarification issued; no review granted; each party to bear own costs.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Review of Judgment, Apportionment of Liability, Functus Officio, Joint and Several Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rainbow Manufacturers Limited
Appellant
Haron Monyi Muli
Respondent
The Hon. Attorney General of the Republic of Kenya
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review/clarification of Judgment
Legal Issues
- 1 Whether the High Court judgment required review or clarification regarding the apportionment of liability between the appellant and the 2nd respondent.
- 2 Whether the lower court was functus officio after delivering its judgment on 1st July, 2004 and thus lacked jurisdiction to revisit liability.
Ratio Decidendi
The High Court held that the lower court, having delivered its judgment on 1st July, 2004 apportioning liability at 30% to the appellant and 70% to the 2nd respondent, became functus officio and lacked jurisdiction to revisit or alter that apportionment. The subsequent ruling by the lower court on 2nd September, 2004, which purported to set aside the apportionment and impose joint and several liability, was therefore invalid. The High Court judgment was based on the original apportionment, and no review or further clarification was necessary. The application for review succeeded only to the extent of clarifying that the apportionment in the original judgment stands, and each party was...
Court Disposition
Application for review/clarification partially succeeds; clarification issued; no review granted; each party to bear own costs.
Orders
- The issue of liability is clarified: the apportionment in the lower court's judgment of 1st July, 2004 (30% appellant, 70% 2nd respondent) stands.
- No review of the High Court judgment is necessary.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 561 OF 2004
RAINBOW MANUFACTURERS LIMITED......APPELLANT
VERSUS
HARON MONYI MULI..............................1ST RESPODNENT
THE HON. ATTORNEY GENERAL
OF THE REPUBLIC OF KENYA.............2ND RESPODNENT
(Being an appeal against the Judgment by Hon. N.A Owino (Mrs) Principal Magistrate in CMCC No. 2288 of 2002 delivered on 4st July, 2004)
RULING
On 7th December, 2016 this court delivered a judgment relating to consolidated appeals from the trial of the lower court. Subsequent thereto, the appellant filed the present application dated 23rd January, 2017 for the substantive order that the said judgment be reviewed or clarified in relation to liability between the appellant and 2nd respondent in view of the judgment of the lower court relating to liability.
It is true that in the judgment delivered by the lower court on 1st July, 2004 the court apportioned liability at 30% on the part of the appellant and 70% on the part of the 2nd respondent. Subsequently however, the lower court revisited the issue of liability and set aside the above apportionment and, in a ruling delivered on 2nd September, 2004, ordered that liability be jointly and severally against the defendants. This was two months after the judgment of 1st July, 2004.
The issue of liability featured in the Memorandums of Appeal of the two consolidated appeals. The fact of the matter is that, after the delivery of judgment on 1st July 2004 the lower court became functus officio,and no party could move the court to revisit the issue by way of an application of review. The ruling of the lower court made on 2nd September, 2004 was clearly misplaced.
The judgment of this court made specific reference to the judgment of the lower court delivered on 1st July, 2004 at page 2 thereof. It was observed,
“The court found that the appellant herein was liable to the 1st respondent to the extent of 30% while the 2nd respondent was liable to the extent of 70%. Aggrieved by the said judgment the appellant filed this appeal.”
This court did not refer to the ruling that adjusted the said apportionment to the effect that, the two defendants in the lower court were to be held liable to the plaintiff jointly and severally.
In concluding the issue of liability in the judgment at page 5 this court observed,
“The apportionment of liability upon the appellant and the 2nd respondent cannot be faulted because of their respective roles in this case.”
When the court declares liability is jointly and severally that cannot be called apportionment. It is clear that this court was referring to the apportionment that appears in the judgment of the lower court delivered on 1st July 2004. I believe this clarifies the issue of liability and no review is necessary in the circumstances of the case. To that extent only, this application succeeds. Each party shall bear their own costs.
Orders accordingly.
Dated, signed and delivered at Nairobi this 13th Day of February, 2018.
A.MBOGHOLI MSAGHA
JUDGE