Longonot Horticulture Limited v Anthony Kihara Mwangi [2015] KEHC 3396 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NO. 212 OF 2009

LONGONOT HORTICULTURE LIMITED..........APPELLANT

VERSUS

ANTHONY KIHARA MWANGI..........................RESPONDENT

(Appeal from judgment of the Principal Magistrate dated 23rd day of September 2009, in Naivasha Senior Principal Magistrate's Court Civil Case No. 178 of 2003).

RULING

In an application dated 19th June 2015 bought under order 45 Rule 1 and 51 rule 1 of the Civil Procedure Rules, the Appellant has requested the court to correct an apparent error appearing in the Judgment of this court dated and delivered on the 11th June 2015.

In the Lower Court's judgment appealed from – (SPMC case No. 178 of 2005),the General damages awarded was KShs.150,000/=  subject to 20% contributory negligence. In my judgment referred to above, I mistakenly alluded to General damages by the trial court as KShs.280,000/= instead of  KShs.150,000/=.

The application is not opposed.  Mr. Gekonga Advocate for the Respondent confirmed that General damages in the lower court were KShs.150,000/= and urged the court to proceed to adjust the figures.

Pursuant to the provisions of Section 99 of the Civil Procedure Act and Order 45 rule 1(b) and of Civil Procedure Rules that provides for correction of clerical and/or arithmetical errors in Judgments, decrees and orders apparent on the face of the record, and having found that indeed there was an error as to the amount of general damages awarded to the  Respondent by the trial court, I now proceed to correct and adjust the error.

The trial court had awarded general damages in the sum of KShs.150,000/=.  This court in its Judgment set aside the award on general damages and substituted the same with an award of KShs.180,000/= as appears in the Judgment.  The correct amount that the court found reasonable was KShs.80,000/= but mistakenly typed and  indicated KShs.180,000/= which was a genuine clerical error which escaped my notice.  It is regretted.

Accordingly, this court's judgment dated  and delivered on the 11th June 2015 is corrected as follows:

1. That Judgment of the trial court dated 23rd September, 2009 is set aside.

2. That liability is apportioned equally between the Appellant and the Respondent at 50:50 basis.

3. That the award on general damages to the Respondent is reviewed downwards to KShs.80,000/=. The Appellant shall pay   KShs.40,000/= being 50% contributory negligence.

4. Interest shall apply on general damages from the date of the Judgment in the lower court.  Special damages shall attract interest from the date of filing of the suit in the lower court.

5. Each party shall beat its own costs of the appeal, and in the lower court.

Dated, signed and delivered in open court this 2nd day of July 2015

JANET MULWA

JUDGE