REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CIVIL APPEAL NO. 22 OF 2017

KISAKA JOHN GIDEON & ANO.....APPELLANTS/RESPONDENTS

VERSES

JOHN ENDEKU ONZERE...............1^ST RESPONDENT/APPLICANT

BERNARD LIDANYA MADEGWA .......................2^ND RESPONDENT

OBIRI VUHUNJI.......................................................3^RD RESPONDENT

RULING

1. The application dated 6^th August, 2019 by the Applicant and supported by the affidavit of FRANCIS GACATHI advocate seeks to have the judgment of this court dated 23^rd July, 2019 reviewed to the extent that the issues of costs and liability be removed as against the applicant. According to the application, the applicant who was the Respondent in the appeal was simply a fare paying passenger and not in any way in control of the motor vehicles that caused the accident.

2. The second and 3^rd Respondents have filed grounds of opposition dated 20^th September, 2019 as well as the Appellants. The submissions filed by the parties as well as the attached authorities have also been perused by the court.

3. The provisions of Order 45 rules 1 and 2 of the Civil Procedure gives this court the mandate to carry out a review in the event that there is an error apparent on the face of the record.

4. The issue raised by the applicant is well captured under paragraph 16 of the judgement which I stated as follows;

“in the premises, the appeal is hereby allowed. The trial court judgement on liability is hereby set aside to the extent that the Appellants are jointly and severally absolved from any liability.  Liability at 100% is hereby apportioned against the Respondents. “

5. Obviously the applicant was not an Appellant in this appeal. The Appellants were JOHN KISAKA GIDEON and JOHN BARASA and the Respondents were BERNARD LIDANYWA MADEGWA and OBIRI VUHUNJI.  Since the appeal succeeded against the Respondents, the Applicant JOHN ENDEKU ONZERE ought not to have borne any responsibility in terms of liability as well as costs.

6. It is not true as submitted by the 1^st and 2^nd Respondents in their grounds of opposition dated 20^th September, 2019 that this matter is res judicata as the clarification is simply to do with the issue of liability between the owners of the two vehicles. The Applicant was simply a fare paying passenger.

7. In the premises, the application is hereby allowed and order that liability at 100% is against the Respondents and for avoidance of doubt BERNARD LIDANYA MADEGWA AND OBIRI VUHUNJI and not JOHN ENDEKU ONZERE. The costs awarded shall be met by the two mentioned Respondents and not the Applicant.

8. Each party shall meet its own costs in this application.

Dated, signed and delivered in open court this 18^th day of December, 2019.

 ________________

H. K. CHEMITEI

JUDGE

18/12/19

In the presence of:-

Parties Absent

Court Assistant - Silvia

Ruling delivered in open court.