[2021] KEELC 1568 (KLR)
The court held that the applicant was within her right to withdraw the interlocutory application dated 18th May, 2021, as the withdrawal was not opposed and no prejudice would be suffered by the respondents. The court noted that the main suit was still pending and that the withdrawal would expedite its hearing. The...
Source-derived case information.
- Citation
- [2021] KEELC 1568 (KLR)
- Parties
- Plaintiff: Irvine Mwenda Japhet; Defendant: Wilberfrce Micheni; Defendant: Lisbeth Kaimuri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E003 of 2021
- Procedural Posture
- Land and Property Suit / Ruling on Withdrawal of Interlocutory Application
- Outcome
- Application for withdrawal of interlocutory application granted; application marked as withdrawn.
- Legal Topics
- Withdrawal of Application, Interlocutory Applications, Directions for Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irvine Mwenda Japhet
Plaintiff
Wilberfrce Micheni
Defendant
Lisbeth Kaimuri
Defendant
Procedural Posture
Land and Property Suit / Ruling on Withdrawal of Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to withdraw the interlocutory application dated 18th May, 2021.
- 2 Whether withdrawal of the application would prejudice the respondents.
Ratio Decidendi
The court held that the applicant was within her right to withdraw the interlocutory application dated 18th May, 2021, as the withdrawal was not opposed and no prejudice would be suffered by the respondents. The court noted that the main suit was still pending and that the withdrawal would expedite its hearing. The requirements of Order 25 of the Civil Procedure Rules were considered, and the court found that, in the circumstances, leave to withdraw the application should be granted.
Court Disposition
Application for withdrawal of interlocutory application granted; application marked as withdrawn.
Orders
- Leave is granted to the applicant/plaintiff to withdraw the notice of motion application dated 18th May, 2021.
- The application dated 18th May, 2021 is marked as withdrawn.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. E003 OF 2021
IRVINE MWENDA JAPHET............PLAINTIFF
VERSUS
WILBERFRCE MICHENI .....1ST DEFENDANT
LISBETH KAIMURI ..............2ND DEFENDANT
RULING
1. On 21st September, 2021, the court directed that the application dated 18th May, 2021 be canvassed by way of written submissions. The Applicant/Plaintiff was to file and serve her submissions within 14 days and the Respondents/Defendants to file and serve theirs within 14 days of service. The matter was then fixed for directions on 21st September, 2021. These directions were given by the court in the presence of the advocates for both parties.
2. When the matter came up for directions on 21st September, 2021, only Mr. Mureithi, counsel for the Applicant/Plaintiff was present in court. Mr. Mureithi informed the court that his client intended to forego the interlocutory application dated 18th May, 2021 so that parties may deal with the main suit.
3. Order 25 of the Civil Procedure Rules allows a party to withdraw a suit (or application). However, even in the midst of the several proposition in respect to Order 25, there would be occasion, when a party’s right to withdraw or discontinue ought to be fettered or curtailed. Order 25 Rule 2 provides that where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of written consent signed by all the parties.
4. In the instant case, the matter was due for directions on filing of submissions on the applicant’s application on 21st September, 2021. I note from the record that the Respondents had filed a replying affidavit on 7th June, 2021. The Respondents however, did not appear in court on 21. 9.2021 and no submissions had been filed by either party. The applicant has now sought to withdraw the interlocutory application in favour of expediting the hearing of the main suit. The application for withdrawal is not opposed. In my view, the applicant is within her right to withdraw the interlocutor application. The court is of the view that no prejudice would be suffered by the Respondents since the main suit is pending.
5. Consequently, leave is hereby granted to the Applicant/Plaintiff to withdraw the notice of motion application dated 18th May, 2021. The said application is hereby marked as withdrawn.
6. The matter is fixed for directions on 13th October, 2021.
7. The plaintiff is directed to serve the defendants.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 21ST DAY OF SEPTEMBER, 2021 IN THE PRESENCE OF:
C/A: Ndegwa
Mureithi for Plaintiff/Applicant
N/A for Defendants/Respondents
C. K. YANO,
JUDGE.