Gilbert O. Anyona v Stephen M. Marita [2017] KEELC 2664 (KLR)
- Citation
- [2017] KEELC 2664 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Environment and Land Court
- Posture
- Civil Appeal / Application for Withdrawal of Appeal
- Case number
- Appeal 160 of 2013
- Language
- English
More details
- Court
- Environment and Land Court
- Posture
- Civil Appeal / Application for Withdrawal of Appeal
- Case number
- Appeal 160 of 2013
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court allowed the withdrawal of the appeal on the basis that both parties were represented and there was no objection from the respondent. The court found that no written notice was necessary under Order 25 Rules 1 and 2 of the Civil Procedure Rules, 2010, given the circumstances. The court also considered the delay in the matter, referencing Article 159(2)(b) of the Constitution, which mandates that justice shall not be delayed. On the issue of costs, the court exercised its discretion under Section 27 of the Civil Procedure Act and, considering the nature of the application and the lack of opposition, made no order as to costs.
Court disposition
Appeal withdrawn with no order as to costs.
Orders
- The application for withdrawal of the appeal is allowed.
- No order as to costs.
02
Material facts
Parties
Gilbert O. Anyona
Appellant Counsel: Mr. SoireStephen M. Marita
Respondent Counsel: Mr. Nyatundo03
Procedural history
Posture
Civil Appeal / Application for Withdrawal of Appeal
04
Questions and positions
Legal issues
- 01
Whether the appellant should be allowed to withdraw the appeal without an order as to costs.
- 02
Whether written notice is required for withdrawal when both parties are represented.
- 03
Whether the delay in prosecution of the appeal affects the withdrawal application.
Party arguments
- Applicant
- Counsel for the appellant applied to withdraw the appeal and requested that there be no order as to costs. The application was made orally in court, with reference to the relevant provisions of the Civil Procedure Rules and Act.
- Respondent
- Counsel for the respondent had no objection to the withdrawal of the appeal and did not oppose the application or seek costs.
05
Court’s reasoning
Legal principles
- 01
Order 25 Rules 1 and 2, Civil Procedure Rules, 2010
Order 25 Rules 1 and 2 of the Civil Procedure Rules, 2010 allows for withdrawal of suits by plaintiffs and discontinuation by parties, and no written notice is required if both parties are represented.
- 02
Article 159(2)(b), Constitution of Kenya
Article 159(2)(b) of the Constitution of Kenya provides that justice shall not be delayed.
- 03
Section 27, Civil Procedure Act, Cap 21
Section 27 of the Civil Procedure Act gives the court discretion on the issue of costs.
06
Ratio, limits and disposition
Ratio decidendi
The court allowed the withdrawal of the appeal on the basis that both parties were represented and there was no objection from the respondent. The court found that no written notice was necessary under Order 25 Rules 1 and 2 of the Civil Procedure Rules, 2010, given the circumstances. The court also considered the delay in the matter, referencing Article 159(2)(b) of the Constitution, which mandates that justice shall not be delayed. On the issue of costs, the court exercised its discretion under Section 27 of the Civil Procedure Act and, considering the nature of the application and the lack of opposition, made no order as to costs.
Obiter and limits
- This appeal has been pending in this court since year 2013. Under Article 159 (2) (b) of the Constitution of Kenya, justice shall not be delayed.
- No notice in writing is required because both parties are represented in this appeal.
Court disposition
Appeal withdrawn with no order as to costs.
- The application for withdrawal of the appeal is allowed.
- No order as to costs.
Source and reliance status
Environment and Land Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Environment and Land Court
Judgment
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT KISII
APPEAL NO. 160 OF 2013
GILBERT O. ANYONA …………………..…………………………….. APPELLANT
VERSUS
STEPHEN M. MARITA ……………………………………..……….. RESPONDENT
RULING
(Being an appeal from the Ruling of Hon. Mugendi Nyagah - RM delivered in Kisii CMC Misc. App. No. 95 of 2013 delivered on 24th October, 2013)
1. This is an appeal that arose out of a ruling delivered on 24th October, 2013 by Hon. Mugendi Nyagah (RM) in Kisii CMC Misc. Application No. 95 of 2013 filed under Order 51 Rules 1 and 15 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act. It was in respect of the premises known as Keroka Plot No. 127 in Keroka Town.
2. On 20th March 2013, Mr. Soire counsel for the appellant requested this court for time to contact his client/the appellant. The court fixed mention for 16th May, 2017 for directions.
3. Today the matter is for directions. Mr. Soire for the applicant has applied to withdraw this appeal with no order as to costs. Mr. Nyatundo for the respondent has no objection to the application.
4. I consider the application and the response thereto. Order 25 Rules 1 and 2 of the Civil Procedure Rules, 2010 provides for the withdrawal by the plaintiff and discontinuation of suit by the parties. No notice in writing is required because both parties are represented in this appeal. There is no objection to the withdrawal of the appeal.
5. This appeal has been pending in this court since year 2013. Under Article 159 (2) (b) of theConstitution of Kenya, justice shall not be delayed. The application is merited,
6. I accordingly allow the application for the withdrawal of the appeal by the appellant’s counsel.
7. On costs, I consider the nature of the application and the proviso to Section 27of theCivil Procedure Act, Cap 21 Laws of Kenya. I make no order as to costs.
G. M. A. ONGONDO
JUDGE - MIGORI
(SITTING AT KISII ELC SERVICE WEEK)
Ruling delivered, signedanddatedin open courtatKisii this16th day of May, 2017.
G. M. A. ONGONDO
JUDGE - MIGORI
(SITTING AT KISII ELC SERVICE WEEK)
In the presence of:
Mr. Soire for the appellant
Mr. Nyatundo for the respondent
Ruth court assistant
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