[2013] KEHC 6818 (KLR)
The court found that the omission of costs and interest in the original judgment was an accidental omission, not a deliberate denial. Such an omission is correctable under section 99 of the Civil Procedure Act or by review under Order 45 of the Civil Procedure Rules. The plaintiff, having fully succeeded in the...
Source-derived case information.
- Citation
- [2013] KEHC 6818 (KLR)
- Parties
- Plaintiff: Sindani Waswa Bonzemo (suing as personal representative of Ann K N Sindani, Deceased); Defendant: Al-Malik Brothers Motors Ltd; Defendant: Stephen Ngungu Wanyoike; Defendant: Samuel Mburu Gatoro
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 536 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Review of Judgment Regarding Costs and Interest
- Outcome
- Application for review allowed; judgment reviewed to award costs and interest to the plaintiff.
- Judges
- DW Mbuteti
- Legal Topics
- Review of Judgment, Costs Award, Interest on Damages, Accidental Omission
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sindani Waswa Bonzemo (suing as personal representative of Ann K N Sindani, Deceased)
Plaintiff
Al-Malik Brothers Motors Ltd
Defendant
Stephen Ngungu Wanyoike
Defendant
Samuel Mburu Gatoro
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Judgment Regarding Costs and Interest
Legal Issues
- 1 Whether the omission of costs and interest in the original judgment was an accidental omission capable of correction.
- 2 Whether the plaintiff is entitled to costs and interest despite the omission in the original judgment.
- 3 Whether the application for review was unduly delayed and if such delay should bar relief.
Ratio Decidendi
The court found that the omission of costs and interest in the original judgment was an accidental omission, not a deliberate denial. Such an omission is correctable under section 99 of the Civil Procedure Act or by review under Order 45 of the Civil Procedure Rules. The plaintiff, having fully succeeded in the suit, was entitled to costs and interest as a matter of course, and there was no good reason to deny these. The delay in bringing the application was not sufficient to defeat the plaintiff's entitlement, especially as both parties had initially proceeded on the assumption that costs had been awarded. The judgment was therefore reviewed to include awards for costs and interest as...
Court Disposition
Application for review allowed; judgment reviewed to award costs and interest to the plaintiff.
Orders
- Costs of the suit are awarded to the plaintiff plus interest thereon at court rates from the date of filing suit.
- Interest at court rates on the general damages awarded from the date of judgment until payment.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO 536 OF 2006
SINDANI WASWA BONZEMO
(suing as personal representative of
ANN K N SINDANI, Deceased)...................…...................PLAINTIFF
VERSUS
AL-MALIK BROTHERS MOTORS LTD
STEPHEN NGUNGU WANYOIKE
SAMUEL MBURU GATORO................................DEFENDANTS
R U L I N G
1. In this case the Plaintiff sought damages (under the Law Reform Act, Cap. 26 and the Fatal Accidents Act, Cap 32), costs and interest.
2. In a judgment dated and delivered on 28th May 2009 the Court (Ali-Aroni, J) awarded the Plaintiff a total of KShs 3,726,470/00 in damages. The judgment is totally silent on issues of costs and interest.
3. The Plaintiff subsequently applied by notice of motion dated 8th February 2012 for an order to review the judgment in order to make appropriate orders with regard to costs of the suit and interest. The application is opposed by the 2nd and 3rd Defendants by grounds of opposition dated 28th March 2012). Those grounds are –
(i) That the application has been made with inordinate delay which has not been properly explained.
(ii) That the Plaintiff’s advocates should have been more vigilant.
(iii) That it is in the interests of justice that the application be refused.
4. I have considered the submissions of the learned counsels appearing. I have also perused the judgment.
6. It is quite clear that the issues of costs and interest completely escaped the learned Judge’s mind. She did not consider and deny them. They were simply not addressed!
7. Learned counsels for both sides themselves had at one time proceeded upon the basis that costs had been awarded, and the Plaintiff’s costs had been taxed inter partes before they realized that the judgment was devoid of the issue of costs.
8. I am satisfied that failure to address the twin issues of costs and interest in the judgment was an accidental omission capable of correction under section 99 of the Civil Procedure Act, Cap. 21 (the Act) under which the Plaintiff would have applied. The omission is also capable of correction by way of review under Order 45of the Civil Procedure Rules as applied as there is a sufficient reason to grant the order sought.
9. The Plaintiff fully succeeded in her suit. Under section 27(1) of the Act costs are at the discretion of the Court; but they must follow the event unless the court shall for good reason otherwise order.
10. Had the issue not escaped the learned trial Judge’s mind, I have no doubt at all that she would have awarded costs of the suit to the Plaintiff. Likewise, she no doubt would have awarded interest.
11. I will therefore allow the application. The judgment dated and delivered on 28th May 2009 is hereby reviewed in order to address the issues of costs and interests as follows –
(i) Costs of the suit are awarded to the Plaintiff plus interest thereon at court rates from the date of filing suit.
(ii) There will be interest at court rates on the general damages awarded from the date of judgment until payment. There will be similar interest on the special damages awarded, but from the date of filing suit.
12. There will be no order as to costs of this application.
13. Those will be the orders of the Court.
DATED AND SIGNED AT NAIROBI THIS 26th DAY OF NOVEMBER 2013
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 29TH DAY OF NOVEMBER 2013