[2006] KECA 330 (KLR)
The Court of Appeal determined that since the originating suit had been withdrawn and the substantive issues had already been resolved in a related appeal between the same parties, there was no reason to proceed with the current appeal on its merits. The only remaining issue was the allocation of costs. Considering...
Source-derived case information.
- Citation
- [2006] KECA 330 (KLR)
- Parties
- Appellant: Agricultural Finance Corporation; Respondent: Mark J.S. Kisembe; Respondent: Ronald Yatich Chelagat; Respondent: Wycliffe Tabani Wepukhulu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 174 of 2002
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed. Each party to bear its own costs.
- Judges
- J Wakiaga, CA Otieno
- Legal Topics
- Appeal Determination, Withdrawal of Suit, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agricultural Finance Corporation
Appellant
Mark J.S. Kisembe
Respondent
Ronald Yatich Chelagat
Respondent
Wycliffe Tabani Wepukhulu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal should be allowed following the withdrawal of the originating suit.
- 2 How costs of the appeal should be apportioned between the parties.
Ratio Decidendi
The Court of Appeal determined that since the originating suit had been withdrawn and the substantive issues had already been resolved in a related appeal between the same parties, there was no reason to proceed with the current appeal on its merits. The only remaining issue was the allocation of costs. Considering the circumstances, the court exercised its discretion to allow the appeal and ordered that each party bear its own costs of the appeal, thereby concluding the matter without further litigation or expense to either side.
Court Disposition
Appeal allowed. Each party to bear its own costs.
Orders
- The appeal is allowed.
- Each party shall bear its own costs of the appeal.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL OF KENYA
AT ELDORET
CIVIL APPEAL 174 OF 2002
AGRICULTURAL FINANCE CORPORATION……………...…..........…….APPELLANT
AND
MARK J.S. KISEMBE
RONALD YATICH CHELAGAT
WYCLIFFE TABANI WEPUKHULU ……..……………….........……….. RESPONDENT
(Appeal from a ruling of the High Court of Kenya at Kitale (Etyang, J.) dated 30th November, 2001
in
CIVIL CASE NO. 15 OF 2001)
*****************************
JUDGMENT OF THE COURT
The hearing of this appeal was deferred on 17th February, 2005 to await the decision of this Court on a related appeal between the same parties on the same subject matter. That was Civil Appeal No. 92/02. It is confirmed by the parties that judgment in that appeal was delivered on 29th April, 2005 and it largely determined the issue raised in this appeal. We are also informed that the suit that originated this appeal, i.e Kitale HCCC 15/01 was withdrawn with costs to all the defendants in that suit.
The respondents herein are not averse to an order, which the appellant seeks, that this appeal be allowed. The only issue for our decision is the order for costs. We have considered all the circumstances surrounding the dispute and we are inclined to make the order that the appeal be and is hereby allowed. Each party shall bear its own costs of the appeal.
Dated at Eldoret this 22nd day of February, 2006.
R.S.C. OMOLO
………………..
JUDGE OF APPEAL
P.N. WAKI
…....................………..
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
……………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR