Isaac Mwangi Wainaina v Boniface Njiru (trading as Njiru Boniface & Co. Advocates & Kenline Agencies Limited [2017] KEHC 2353 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT  NO. 202  OF 2013

ISAAC MWANGI WAINAINA.........................PLAINTIFF/APPLICANT

- V E R S U S –

BONIFACE NJIRU

(trading as Njiru Boniface & Co. Advocates......1ST DEFENDANT

M/S KENLINE AGENCIES LIMITED.........................2ND DEFENDANT

RULING

1. Isaac Mwangi Wainaina, the plaintiff/applicant herein successfully obtained judgement in his favour and against Boniface Njiru and M/s Kenline Agencies Ltd, the 1st and 2nd defendants respectively pursuant to the motion dated 14. 1.2015 vide the ruling delivered on 30th July 2015.  The plaintiff has now taken out the motion dated 19. 5.2016 in which he has beseeched this court to review the aforesaid judgement.  The motion is supported by the affidavit of the plaintiff/applicant.  When the motion came up for interpartes hearing, this court gave an order directing the parties to file written submissions.  At the time of writing this ruling, the plaintiff was the only party who had filed his submissions.  It is also apparent that the defendants neither filed any response to motion nor any written submissions.

2. I have considered the grounds stated on the face of the motion and the facts deponed in the supporting affidavit. It is the submission of the plaintiff that he is unable to extract the decree from this court’s judgment because the judgment is ambiguous in that this court gave both the main and the alternative prayers of the plaint.  The plaintiff pointed out the apparent error and asked this court to make an order to rectify the error.  Pursuant to the provisions of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.

3. Having carefully considered the material placed before this court, I am convinced that the motion has merit.  It is clear in my mind that due to inadvertent error this court gave both the main and the alternative prayers instead of choosing either.  In such a case, a prayer for review is merited to correct the error which is apparent on the face of the record.  Consequently, the motion dated 19th May 2016 is allowed so that the judgment vide the ruling delivered on 30. 7.2015 is reviewed and adjusted and is allowed in the terms of prayers:

a) Against the 1st defendant that: the 2nd defendant breached the terms of the sale agreement dated 27th November 2008 and the same be and is hereby rescinded.

b) Against the 1st defendant and the 2nd defendant jointly and severally for

i. Refund of purchase price in the sum of kshs.6,500,000/= with  interests at curt rates with effect from 11th April 2009 till payment in full.

ii. A further sum of ksh.14,500,000/= of lost value.

iii. General and aggravated damages for fraud.

c) Costs of the suit.

d) Interest at court rates.

Dated, Signed and Delivered in open court this 6th day of October, 2017.

J. K. SERGON

JUDGE

In the presence of:

........................................  for the Plaintiff

........................................ for the Defendant