[2022] KEHC 15862 (KLR)
The court held that while the appellant has the right to withdraw the appeal, the 2nd respondent is entitled to costs incurred up to the date of withdrawal, as its counsel had made several appearances and undertaken preparatory work. The court relied on established principles that withdrawal does not bar the court...
Source-derived case information.
- Citation
- [2022] KEHC 15862 (KLR)
- Parties
- Appellant: Fridah Kagwiria Jadiel; Respondent: Jadiel Karithi; Respondent: National Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 109 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Withdrawal of Appeal and Costs
- Outcome
- Appeal withdrawn with costs to the 2nd respondent.
- Judges
- EM Muriithi
- Legal Topics
- Withdrawal of Appeal, Costs Award, Right to Discontinue, Court Discretion on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Fridah Kagwiria Jadiel
Appellant
Jadiel Karithi
Respondent
National Bank of Kenya Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Withdrawal of Appeal and Costs
Legal Issues
- 1 Whether the appellant is entitled to withdraw the appeal unconditionally.
- 2 Whether the 2nd respondent should be awarded costs upon withdrawal of the appeal.
Ratio Decidendi
The court held that while the appellant has the right to withdraw the appeal, the 2nd respondent is entitled to costs incurred up to the date of withdrawal, as its counsel had made several appearances and undertaken preparatory work. The court relied on established principles that withdrawal does not bar the court from awarding costs to the party who has incurred expenses, and that such costs should cover work done up to the point of withdrawal. The appeal was therefore marked as withdrawn with costs to the 2nd respondent.
Court Disposition
Appeal withdrawn with costs to the 2nd respondent.
Orders
- The memorandum of appeal filed on 9/9/2019 is marked as withdrawn with costs to the 2nd respondent.
Full Case Text
Judgment text and source record
26 paragraphs
Jadiel v Karithi & another (Civil Appeal 109 of 2019) [2022] KEHC 15862 (KLR) (29 November 2022) (Ruling)
Neutral citation: [2022] KEHC 15862 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal 109 of 2019
EM Muriithi, J
November 29, 2022
Between
Fridah Kagwiria Jadiel
Appellant
and
Jadiel Karithi
1st Respondent
National Bank of Kenya Limited
2nd Respondent
Ruling
1. The appellant has expressed his desire to wholly withdraw her entire appeal against the respondents with no orders as to costs videa notice of withdrawal dated 30/9/2021.
2. The 2nd respondent’s opposition to the said withdrawal, as can be deduced from its submissions filed on 19/1/2022, is only limited to reimbursement for the expenses incurred. It relies on Justus Simiyu Masinde v Domitilla Icha Masinde (2012) eKLR, Council of Governors v Senate &another (2014) eKLR and Canyon Properties Limited & 3others v Eliud Kipchirchir Bett & 2others (2017) eKLR to fortify its submissions.
3. The appellant lodged a memorandum of appeal in this court on 9/9/2019. The record of appeal was not filed and before directions could be taken on how the appeal was to be heard, the appellant filed the notice to withdraw the same on 30/9/2021. This court notes that the 2nd respondent did not file any submissions in respect to the appeal. The genesis of the appeal now sought to be withdrawn is the dismissal of the application dated 14/6/2019 by the trial court in favour of the 2nd respondent, the 2nd defendant in those proceedings. The trial court vide its ruling dated 1/8/2019 rendered itself thus, “This suit is vexatious and an abuse of the court processes and is hereby struck out with costs to the 2nd defendant.”
4. As a general rule, the right of a party to discontinue a suit or withdraw his claim cannot be questioned. Those sentiments were echoed by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others[2014] eKLR where it was reiterated that: “A party’s right to withdraw a matter before the court cannot be taken way. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”
5. Since the 2nd respondent is not opposed to the withdrawal of the appeal, the sole issue for determination is whether it should be awarded costs as a result of the said withdrawal.
6. The record shows that counsel for the 2nd respondent made several appearances in court on November 27, 2019, October 14, 2021 and November 15, 2021 after the notice of withdrawal had been filed. The Court of Appeal in Canyon Properties Limited & 3others v Eliud Kipchirchir Bett & 2others (2017) eKLR, was of the view that:While appreciating that the main suit had not been listed for hearing,the learned judge ought to have considered the fact that there were appearances and actual prosecution of some applications in court which must have involved preparations on the part of counsel. In any event, the costs awarded would only cover the work already done upto the point of withdrawal of the suit. Those are relevant, pertinent issues that the learned judge failed to consider when declining to award costs to the appellants.”
7. It is not in doubt that the 2nd respondent had incurred some expenses upto the time when the notice of withdrawal of the appeal was filed, and is entitled to some costs.
Orders 8. Accordingly, for the reasons set out above, the memorandum of appeal filed on 9/9/2019 is marked as withdrawn with costs to the 2nd respondent.
Order accordingly.
DATED AND DELIVERED ON THIS 29TH DAY OF NOVEMBER, 2022. EDWARD M. MURIITHIJUDGEAppearancesM/S Kaberi Arimba & Co. Advocates for the Appellant.M/S Mutegi Mugambi & Co. Advocates for the 1st Respondent.M/S Wambugu & Muriuki Advocates for the 2nd Respondent.