[2018] KECA 501 (KLR)
The Court found that the appellant's explanation for not proceeding with the appeal was reasonable, as the intended appeal had been overtaken by Civil Appeal No. 13/2018, which was pending judgment. The Court exercised its discretion to allow the oral application to withdraw the notice of appeal and marked the...
Source-derived case information.
- Citation
- [2018] KECA 501 (KLR)
- Parties
- Appellant: Christopher Odhiambo Karan; Respondent: David Ouma; Respondent: Independent Electoral and Boundaries Commission; Respondent: Isaiah Nabwayo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Election Appeal 4 of 2017
- Procedural Posture
- Election Petition / Order on Withdrawal of Notice of Appeal
- Outcome
- Appeal withdrawn by consent, no order as to costs.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Withdrawal of Appeal, Notice to Show Cause, Court of Appeal Rules, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Odhiambo Karan
Appellant
David Ouma
Respondent
Independent Electoral and Boundaries Commission
Respondent
Isaiah Nabwayo
Respondent
Procedural Posture
Election Petition / Order on Withdrawal of Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal should be struck out under Rule 83 of the Court of Appeal Rules.
- 2 Whether the appellant's oral application to withdraw the notice of appeal should be granted.
- 3 Whether costs should be awarded upon withdrawal of the appeal.
Ratio Decidendi
The Court found that the appellant's explanation for not proceeding with the appeal was reasonable, as the intended appeal had been overtaken by Civil Appeal No. 13/2018, which was pending judgment. The Court exercised its discretion to allow the oral application to withdraw the notice of appeal and marked the appeal as withdrawn. The Court further ordered that there would be no orders as to costs, considering the circumstances and the absence of opposition from the respondents. The same order was extended to Civil Appeal No. 5/2017, involving the same parties and similar circumstances.
Court Disposition
Appeal withdrawn by consent, no order as to costs.
Orders
- The appellant's oral application to withdraw the notice of appeal is granted.
- The appeal is marked as withdrawn.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E . M. GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJ.A.)
ELECTION PETITION CIVIL APPEAL NO. 4 OF 2017
BETWEEN
CHRISTOPHER ODHIAMBO KARAN........................ APPELLANT
AND
DAVID OUMA.................................................. FIRST RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION..................SECOND RESPONDENT
THE RETURNING OFFICER,
UGENYA CONSTITUENCY,
ISAIAH NABWAYO........................................THIRD RESPONDENT
(Appeal from the Ruling of the High Court of Kenya at Kisumu,
(Cherere, J.)dated 16th November, 2017
in
HIGH COURT ELECTION PETITION NO. 1 OF 2017)
***********************************
ORDER OF THE COURT
The appellant herein was served with a notice to show cause as to why the notice of appeal should not be struck out under Rule 83 of Court of Appeal Rules. The appellant has explained that they did not receive proceedings in time and that, in any case, their intended appeal is now subsumed in Civil Appeal No. 13/2018 that they had filed against the substantive judgment and which is now due for judgment by this Court on 17/7/2018.
In the circumstances, we grant the appellants oral application to withdraw the notice of appeal and mark the appeal as withdrawn with no orders as to costs.
The same order shall apply in Civil Appeal No. 5/2017 where the parties are the same and a similar notice had been issued.
DATED at Kisumu this 19th June, 2018.
E. M. GITHINJI
...................................
JUDGE OF APPEAL
HANNAH OKWENGU
......................................
JUDGE OF APPEAL
J. MOHAMMED
.....................................
JUDGE OF APPEAL
I certify that this isa true copy of the original.
DEPUTY REGISTRAR.