[2000] KECA 52 (KLR)
The Court determined that although it has discretion to grant leave to withdraw an application, in circumstances where the application is already part-heard, the proper course is to dismiss the application rather than allow withdrawal. The application for stay of execution had been overtaken by events, as the...
Source-derived case information.
- Citation
- [2000] KECA 52 (KLR)
- Parties
- Applicant: James Mwangi Ng'ang'a; Respondent: Kenyatta University Council; Respondent: Dr. Onesmus K. Ole Moiyoi, Chairman, Kenyatta University Council; Respondent: Vice Chancellor, Kenyatta University; Respondent: Prof. George S. Eshiwani; Respondent: Lawrence M. Mungai
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 317 of 2000
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal; Application for Leave to Withdraw
- Outcome
- application dismissed
- Judges
- RO Kwach, AB Shah
- Legal Topics
- Stay of Execution, Withdrawal of Application, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwangi Ng'ang'a
Applicant
Kenyatta University Council
Respondent
Dr. Onesmus K. Ole Moiyoi, Chairman, Kenyatta University Council
Respondent
Vice Chancellor, Kenyatta University
Respondent
Prof. George S. Eshiwani
Respondent
Lawrence M. Mungai
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal; Application for Leave to Withdraw
Legal Issues
- 1 Whether the Court should grant leave to withdraw the application for stay of execution.
- 2 Whether the application should be dismissed or withdrawn given that it is part-heard.
Ratio Decidendi
The Court determined that although it has discretion to grant leave to withdraw an application, in circumstances where the application is already part-heard, the proper course is to dismiss the application rather than allow withdrawal. The application for stay of execution had been overtaken by events, as the applicant's employment had already been terminated and the position filled. Therefore, the application was dismissed, and no order as to costs was made.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Civil Appli 317 of 2000 (UR.156/2000
JAMES MWANGI NG'ANG'A ........................................................................................................ APPLICANT
AND
KENYATTA UNIVERSITY COUNCIL ........................................................................... 1ST RESPONDENT
DR. ONESMUS K. OLE MOIYOI
CHAIRMAN, KENYATTA UNIVERSITY COUNCIL .................................................. 2ND RESPONDENT
VICE CHANCELLORKENYATTAUNIVERSITY..................................................... 3RD RESPONDENT
PROF. GEORGE S. ESHIWANI .................................................................................... 4TH RESPONDENT
LAWRENCEM. MUNGAI .............................................................................................. 5TH RESPONDENT
(Application for a stay of execution of the Ruling and allOrders of the High Court of Kenya against the Applicant pending the filing and hearing and determination of the intended Civil Appeal from the Ruling and Orders of the High Court of Kenya at Nairobi (Hon. Commissioner of Assize Mr. Justice Visram) dated 23rd October, 2000
in
H.C.C.MISC.APPLICATION NO. 512 OF 1994)
*******************
RULING OF THE COURT
Mr Kowade, for the applicant, has applied for leave to withdraw this application on the ground that it has been overtaken by events. The applicant's appointment has been terminated and his place taken by someone else.
While the Court has a discretion whether or not to grant leave to the applicant to withdraw his application, in the particular circumstances of this case, the proper course to take is to dismiss the application since it is part-heard. It is so ordered. We make no order as to costs.
Dated and delivered at Nairobi this 15th day of February, 2000.
R. O. KWACH
....................
JUDGE OF APPEAL
A. B. SHAH
...................
JUDGE OF APPEAL
S.E.O. BOSIRE
...................
JUDGE OF APPEAL
I certify that this is a truecopy of the original.
DEPUTY REGISTRAR