[2017] KEHC 7279 (KLR)
The court held that upon withdrawal of the originating summons, the suit ceased to exist and could not be consolidated with any other matter. The only remaining issue was the defendant's counterclaim for eviction, which was unopposed and pending formal proof. The application for consolidation was dismissed with...
Source-derived case information.
- Citation
- [2017] KEHC 7279 (KLR)
- Parties
- Plaintiff: Godfrey Wanjala Wafula; Plaintiff: Kololi Wafula Nasiombe; Defendant: Jairus Wakhungu Mulunda
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 17 of 2013
- Procedural Posture
- Land and Environment Case / Ruling on Application for Consolidation and Withdrawal of Suit
- Outcome
- Application for consolidation dismissed with costs; defendant to proceed with counterclaim for eviction.
- Judges
- SN Mukunya
- Legal Topics
- Withdrawal of Suit, Counterclaim Procedure, Consolidation of Suits, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Wanjala Wafula
Plaintiff
Kololi Wafula Nasiombe
Plaintiff
Jairus Wakhungu Mulunda
Defendant
Procedural Posture
Land and Environment Case / Ruling on Application for Consolidation and Withdrawal of Suit
Legal Issues
- 1 Whether the withdrawn suit can be consolidated with another pending suit.
- 2 Whether the defendant's counterclaim survives the withdrawal of the main suit.
- 3 Whether the application for consolidation should be allowed.
Ratio Decidendi
The court held that upon withdrawal of the originating summons, the suit ceased to exist and could not be consolidated with any other matter. The only remaining issue was the defendant's counterclaim for eviction, which was unopposed and pending formal proof. The application for consolidation was dismissed with costs, and the defendant was permitted to proceed with the counterclaim.
Court Disposition
Application for consolidation dismissed with costs; defendant to proceed with counterclaim for eviction.
Orders
- The application for consolidation is dismissed with costs.
- The respondent (defendant) shall proceed to fix her counterclaim of eviction for formal proof.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND & ENVIRONMENT CASE NO.17 OF 2013
GODFREY WANJALA WAFULA………………………………………….1ST PLAINTIFF
KOLOLI WAFULA NASIOMBE…………………………….………….…2ND PLAINTIFF
VERSUS
JAIRUS WAKHUNGU MULUNDA……………………..…………………......DEFENDANT
RULING
[1]. When this case came up for hearing on 23/2/2016, Mr. Juma Learned Counsel for the Plaintiffs told the Court that the Plaintiffs had withdrawn their suit and served the respondent on 3/10/2015. He said the issue left was only on costs.
Miss Mufutu learned Counsel for the respondent stated that the suit was alive under Order 25 rule 2 and that they had a counterclaim which had not been determined.
[2]. The Court ruled that the Applicant was allowed to withdraw his originating summons with costs to the defendant.
The defendant was allowed to fix her counterclaim for hearing and serve the applicant.
[3]. When the defendants counterclaim came down for hearing on 5/11/2016, the applicant said that there was Civil Suit No.5 of 2016 concerning the same subject matter. She wanted both matters consolidated and the Court to deal with both matters together. Madam Mufutu Learned Counsel for the respondent vehemently opposed the proposition. She argued that this suit was withdrawn with costs on 23/2/2016 and that the inclusion of Suit No.5 of 2016 is an afterthought and its purpose was to delay the interests of justice in this suit. She prayed that she be allowed to proceed with her formal proof.
[4]. Once a suit is withdrawn, the suit or originating summons in this case, ceases to exist. There is therefore no consideration of that suit that can take place. The only issue alive herein is the counterclaim which seeks to evict the applicants. That counterclaim is not opposed. The same is only pending for formal proof. This is so because there is a Court order allowing the originating summons to be withdrawn with costs to the respondents.
Madam Mufutu is spot on when she argues that the alleged consolidation cannot take place.
The application for consolidation is dismissed with costs. The respondent shall proceed to fix her counterclaim of eviction for formal proof.
Judgment read in open court Mr. Anwar.
DATEDand DELIVERED atBUNGOMAthis 10th day of March, 2017.
S.N. MUKUNYA
JUDGE
In the presence of:
Court Assistants - Joy/Chemtai
Mr. Anwar - For Juma for Plaintiff
Kiarie & Company on record for the Defendant - Absent