THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI

IN THE CIVIL DIVISION
CIVIL CASE NO OF 2019
MORDECHAI SHIVAI …………………….PLAINTIFF/APPLICANT

VERSUS

VVV INDUSTRIES LTD……………………………DEFENDANT/RESPONDENT

NOTICE OF MOTION
(Under Sections 3A and 99 of the Civil Procedure Act, Cap 21,of the Laws of Kenya
and Order 21 Rule 3(3), Order 50 Rule 1 of the Civil Procedure Rule)

TAKE NOTICE that on the…………day of……………………2019 at 9.00 O'clock in the

forenoon or so soon thereafter as they can be heard, Messrs. MJM & Company,
Advocates for the Plaintiff/Applicant ("the Plaintiff") herein will move this Honourable
Court for ORDERS:-

1. THAT the Judgment of the Honourable Mr Justice Abdirajan delivered herein

on 25th May, 2019 (“the said Judgment”) be amended so as to rectify an
arithmetical error apparent on the said Judgment.

2. THAT the said Judgment be amended to read that the Plaintiff earned
a total sum of Kshs.577,500.00 from VVV Kenya Limited and not Kshs.
877,500.00 as contained in the said Judgment.

3. THAT further, the said Judgment be amended to read that the total sum of
income earned by the Plaintiff from his subsequent employment at VVV
Kenya Limited and VVV Industries Limited, respectively, after premature
determination of his contract of employment with the Defendant amounted to
Kshs. 877,500.00 .

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4. THAT in the circumstances, the true and rightful amount to be deducted
from the sum of , inter alia, Kshs. 13,689,830.00 awarded to the Plaintiff
for loss of future earnings, should be Kshs. 877,500.00.

5. THAT such further Orders and/or directions be given to the intent that the
amounts payable by the Defendant to the Plaintiff be fully and finally
determined.

6. THAT the costs of this application be provided for.

WHICH APPLICATION is made on the GROUNDS: -

a) THAT in a Judgment delivered by this Honourable Court on 25 th May, 2019 by

the Honourable Mr. Justice Abdirajan, (“the said Judgment”) the Plaintiff was
awarded, inter alia, the sum of Kshs. 13,689,830.00 being loss of future
earnings by the Plaintiff on account of premature determination of the
Plaintiff’s contract of employment with the Defendant, less the sums of Kshs.
300,000.00 and Kshs. 877,500.00 earned by the Plaintiff from VVV Industries
Kenya and VVV Kenya Limited, respectively.

b) THAT upon the premature determination of the Plaintiff’s contract of

employment by the Defendant, the Plaintiff mitigated his losses by securing
employment with VVV Industries and VVV Kenya Limited, where he earned a
total sum of Kshs. 300,000.00 and Kshs. 577,500.00, respectively, as income.

c) THAT the total sum therefore earned by the Plaintiff in his subsequent
employments aforesaid amounted to Kshs. 877,500.00

d) THAT however, at page 31 of the Plaintiff’s written submissions dated 19 th

December, 2017 and filed in this Honourable Court on 20 th December, 2017,the
Plaintiff’s Advocates on record, herein Messrs. Salim Dhoni & company,
inadvertently miscalculated the Plaintiff’s income aforesaid and indicated that the
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 Plaintiff had earned a sum of Kshs. 877,500.00 from VVV Limited alone,
whereas the said sum was indeed the total sum of income earned by the
Plaintiff in his two subsequent employments aforesaid.

e) THAT pursuant to the aforesaid erroneous miscalculation, the total amount

of income earned by the Plaintiff from his subsequent employments aforesaid
purportedly amounted to Kshs. 1,177,500.00.

f) THAT uncontroverted evidence adduced by the Plaintiff at the hearing of

this suit and the Final written Submissions prepared by the said Advocates
on behalf of the Plaintiff at page 28 thereof, confirms that the Plaintiff indeed
earned a total sum of Kshs. 877,500.00 from his said subsequent
employments, not Kshs. 1,177,500.00 as erroneously computed by the Plaintiff’s
Advocates.

g) THAT however, the learned trial Judge in his said Judgment, relied on the
Plaintiff’s Advocates’ inadvertent arithmetical miscalculation and deducted the
erroneous sum of Kshs. 1,177,500.00 from the amount of Kshs. 13,689,830.00
awarded to the Plaintiff on account of loss of future earnings due to premature
determination of the Plaintiff’s contract of employment as aforesaid.

h) THAT the aforesaid inadvertent arithmetical miscalculation of the Plaintiff’s said

Advocates should not be visited on the litigant as the same would occasion
grave and substantial prejudice to the Plaintiff.

i) THAT in view of the said arithmetical error contained in the said Judgment,
to date the Plaintiff is yet to extract the Final Decree thereof as the same can
only be extracted after due resolution by the learned trial Judge of the actual
amounts to be deducted from the amount of Kshs.13,689,830.00 awarded to the
Plaintiff on account of loss of future earnings.

j) THAT unless the said Judgment is amended as prayed:-

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 (a) The Plaintiff would be unable to obtain his just fruits therefrom.
(b) The entire trial process would be rendered a nullity.
(c) The ends of justice and equity would be defeated and frustrated.

k) THAT in view of the foregoing, there is good and sufficient cause for amendment of
the said Judgment as prayed.

l) THAT this application has been made diligently and without unreasonable delay.

m) THAT accordingly, in the interests of justice and fairness , the said Judgment
ought to be reviewed as prayed.
WHICH APPLICATION is further supported by the Affidavits of MORDECAI SHIVAI
and on such other or further grounds as may be adduced at the hearing thereof.

DATED at Nairobi this day of 2019

MJM AND COMPANY

ADVOCATES FOR THE PLAINTIFF/APPLICANT

DRAWN AND FILED BY:

MJM and Company
Advocates
Membley House
P O Box
Nairobi
TO BE SERVED UPON:-

NOTE: If any party served does not appear at the place and
time abovementioned, such orders will be made and
proceedings taken as the Court will deem just and
expedient.