[2017] KEELC 136 (KLR)
The court found that the application by the plaintiff to withdraw the suit was merited and that there was no objection from the defendant. The court exercised its discretion to allow the withdrawal of the suit with costs to the defendant, in line with the Civil Procedure Rules and established case law. The...
Source-derived case information.
- Citation
- [2017] KEELC 136 (KLR)
- Parties
- Plaintiff: Fred Atieno Genga; Defendant: Ben Wasonga Genga; Defendant: John Omollo Aliwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 88 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Withdrawal Application
- Outcome
- Suit withdrawn with costs to the defendant.
- Legal Topics
- Adjudication Section Disputes, Withdrawal of Suit, Injunctive Relief, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Atieno Genga
Plaintiff
Ben Wasonga Genga
Defendant
John Omollo Aliwa
Defendant
Procedural Posture
Environment and Land Case / Ruling on Withdrawal Application
Legal Issues
- 1 Whether the plaintiff's suit should be withdrawn with costs to the defendant.
- 2 Whether the defendant's application to strike out the plaint is merited.
Ratio Decidendi
The court found that the application by the plaintiff to withdraw the suit was merited and that there was no objection from the defendant. The court exercised its discretion to allow the withdrawal of the suit with costs to the defendant, in line with the Civil Procedure Rules and established case law. The defendant's applications for striking out the plaint and other reliefs became moot upon the withdrawal of the suit.
Court Disposition
Suit withdrawn with costs to the defendant.
Orders
- The plaintiff's application to withdraw the suit is allowed.
- The suit is marked as withdrawn with costs to the defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MIGORI
ELCC NO. 88 OF 2017
(Formerly Kisii High Court ELC case No. 87 Of 2015)
FRED ATIENO GENGA..................................APPLICANT
VERSUS
BEN WASONGA GENGA.......................1ST DEFENDANT
JOHN OMOLLO ALIWA.......................2ND DEFENDANT
RULING
1. By a plaint (Fast Track) filed in court on 03. 02. 2015, the Plaintiff/Respondent has sued the Defendant/Applicant for a restraint order in respect of Plot No. J7 KOLAL Adjudication Section and costs of the suit. Initially he filed the suit in person. Presently, Kwanga Mboya and Company Advocates are on record.
2. The Defendant/Applicant , Ben Wasonga Genga is represented by Roch Odhiambo Advocate. He has denied the Plaintiff 's claim and prays for its dismissal in a defence dated 3 /4/ 2015.
3. In an application dated 24/10/2016 by way of Notice of Motion, the Defendant/Applicant has sought to have the plaint struck out. By Notice of Motion dated 14/2/2017, he has also sought a temporary injuction against the Plaintiff/Respondent, substitution of the Defendant/Applicant with Fred Atieno Genga as the Defendant and an order to direct the 2nd Respondent to amend the plaint. The two applicantions were fixed for hearing today.
4. Mr. Kisia counsel for the Plaintiff/Respondent has applied to have the suit withdrawn with costs to the Defendant/Applicant. Mr. Roch Odhiambo counsel for the Defendant/Applicant, who had sought the suit to be struck out, (See Nyagah Vs. Nyamu & Anor 1976-80 (KLR 8a), has no objection thereto.
5. I find the application to withdraw the suit merited. I accordingly allow it.
G.M.A.Ongondo
JUDGE
Delivered, Signed and Dated at Migorithis 13TH day of MARCH2017.
In the presence of :
Mr. Kisia counsel for Plaintiff/Respondent
Mr. Roch Odhiambo for Defendant/Applicant
Mr. Tom Otieno, Court Assistant