[2015] KEHC 2657 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 669 OF 2011

DR. RONALD NGURU GATHARA...................1ST APPELLANT

RODOKEN VENTURES LTD.........................2ND APPELLANT

RACHAEL W. MUTAHI

T/A TOPLINK AUCTIONEERS .....................3RD APPELLANT

VERSUS

CLIFF MBALA....................................................RESPONDENT

RULING

Dr. Ronald Nguru Gathara, Rodoken Ventures Ltd and

Rachael W. Mutahi being the 1st, 2nd and 3rd Appellants took out the motion dated 21st August 2015 in which they sought for the following orders:

That this application be certified as urgent and be heard exparte at the first instant by reason of its urgency

That this court be pleased to indicate how much money should be deposited in court as was ordered.

That this honourable court be pleased to order an extension of time within which to deposit the decretal amount from 60 days which expires on 1st September 2015 till the hearing and final determination of this application.

That cost of the application be provided for.

The motion is supported by the affidavit of Antony Maina

Macharia, learned advocate for the Appellants. When served with the motion Cliff Mbala, the Respondent herein, filed grounds of opposition and the replying affidavit of Caleb Odhiambo Jaoko to oppose the same.

I have considered the rival submissions presented by learned

advocates. I have also taken into account the grounds stated on the face of the motion plus the facts deponed in the affidavits filed in support and against the application. It is the submission of Mr. Macharia that there is an error on the computation of the trial court’s judgement. It is pointed out that the appellants were ordered to pay punitive damages of ksh.20,000 but it was erroneously calculated as kshs. 200,000/= hence the decree contains a wrong figure representing general damages.

The Appellants have further argued that they were granted a

stay of execution on condition that they deposit the decretal sum in an interest earning account in the joint names of the advocates at least by 1st September 2015. They also argue that since they have not ascertained the actual figure, it is difficult to make the deposit. The Appellants have now beseeched this court to end the impasse by correcting the error.

The Respondent has strenuously opposed the motion. Mr. Jaoko, learned advocate for the Respondent argued that this court is functus officio in the matter. The learned advocate pointed out that the Appellants acquiesced to the final computation of damages and are therefore estopped from disputing the same belatedly. Mr. Jaoko further pointed out that the principal sum plus costs as of now is kshs.789,868/= hence there is no error.

After a careful consideration of the rival submissions it would

appear that the Respondent does not deny perse that there is an apparent error in calculating what was awarded as punitive damages. The issue which seems to have disturbed the Respondent’s mind is the view that this court is already functus officio. Mr Macharia pointed out that the issue was raised on appeal but was not considered when the appeal was dismissed hence this court is not functus officio. There is no doubt that this court heard this appeal and had it dismissed on 13. 02. 2015. On 2nd July 2015, this court gave a conditional order of stay pending appeal. It is apparent from ground 5 of the Appellants memorandum of appeal that the Appellants had argued that the award of kshs.400,000 as general and punitive damages was excessive. There was no ground nor submission on appeal as to whether or not the award was erroneous. I have carefully perused the judgement of the trial court and it is clear that the Respondent was awarded judgement in the following terms interalia:

One month rent security deposit of kshs.11,000/=

General damages in the sum of kshs.200,000

Punitive damages for wrongful destrain Kshs.20,000/=

Electricity deposit – kshs.2,500/=

The trial magistrate clearly stated that the total amount is

ksh,413,500/=. It is apparent that if the trial magistrate awarded kshs.20,000 as punitive damages, then the actual amount of the award should have been kshs,213,500/- but it would appear the learned Senior Resident Magistrate treated punitive damage to be ksh.200,000/=. I have noted the discrepancy but the question is whether this court has jurisdiction to entertain the application is the court functus officio? It is also not in dispute that the Appellants had deposited in court as security for the due performance of the decree the amount now disputed. The error was not that of this court but that allegedly committed by the trial court.

Under Sections 99 and 100 of the Civil Procedure Act such

errors or mistakes can be corrected by the court issuing the decree. This court did not interfere with the decree of the trial court on appeal but instead affirmed the same. With respect, I agree with the submissions of Mr. Jaoko that this court became functus officio in the circumstances of this appeal.

I doubt whether it is permitted to correct clerical or mathematical errors and mistakes committed by the trial court, in view of the provisions of Sections 76 and 79A of the Civil Procedure Act. If well advised the Appellants’ remedy lies elsewhere and not in this court.

In the end I find no merit in the motion. The same is ordered

dismissed with costs to the Respondent.

Dated and delivered in open court this 30th day of September 2015

J. K. SERGON

JUDGE

In the presence of:

………………………………………. for the Plaintiff

……………………………………….for the Defendant