[2015] KEELC 30 (KLR)
The court found that the plaintiff's claim had shifted from seeking determination of the existence of an access road to a claim of encroachment, as evidenced by the proposed amendment to the plaint. The consent order recorded on 2.7.2015 was specific to the earlier application and the survey regarding the access...
Source-derived case information.
- Citation
- [2015] KEELC 30 (KLR)
- Parties
- Plaintiff: John Aguilinda Aradi; Defendant: Festo Wakhungu Zephania
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 85 of 2015
- Procedural Posture
- Civil Case / Ruling on Application to Withdraw Notice of Motion
- Outcome
- Application to withdraw notice of motion dated 15.6.2015 allowed with costs to the defendant/respondent.
- Judges
- EO Obaga
- Legal Topics
- Withdrawal of Application, Consent Orders, Amendment of Plaint, Access Road Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Aguilinda Aradi
Plaintiff
Festo Wakhungu Zephania
Defendant
Procedural Posture
Civil Case / Ruling on Application to Withdraw Notice of Motion
Legal Issues
- 1 Whether the plaintiff can withdraw the notice of motion dated 15.6.2015 after a consent order was recorded.
- 2 Whether the application for withdrawal is justified given the change in the plaintiff's claim.
Ratio Decidendi
The court found that the plaintiff's claim had shifted from seeking determination of the existence of an access road to a claim of encroachment, as evidenced by the proposed amendment to the plaint. The consent order recorded on 2.7.2015 was specific to the earlier application and the survey regarding the access road. Since the plaintiff no longer pursues that line of claim, the notice of motion dated 15.6.2015 became superfluous. The court held that it would be unnecessary and unjust to compel the plaintiff to proceed with an application that is no longer relevant to the amended claim. Accordingly, the withdrawal of the notice of motion was justified, and the court allowed the withdrawal...
Court Disposition
Application to withdraw notice of motion dated 15.6.2015 allowed with costs to the defendant/respondent.
Orders
- The plaintiff is allowed to withdraw the notice of motion dated 15.6.2015.
- Costs of the withdrawn application awarded to the defendant/respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT KITALE
CIVIL CASE NO. 85 OF 2015
JOHN AGUILINDA ARADI:..........................................PLAINTIFF
VERSUS
FESTO WAKHUNGU ZEPHANIA................................DEFENDANT
RULING
When this matter came up for mention this morning, the plaintiff/Applicant's advocate made an application seeking to withdraw a notice of motion dated 15. 6.2015. The application was made because the plaintiff/applicant had filed another application dated 7. 10. 2015 seeking to amend the plaint.
The application for withdrawal of motion dated 15. 6.2015 was opposed by the defendant/respondent's lawyer on the ground that the application which is sought to be withdrawn had been compromised by a consent recorded on 2. 7.2015 and that therefor it cannot be legally withdrawn.
In response to the defendant/Respondent's submissions, the plaintiff/applicant's advocate argued that the consent was made specifically for purposes of the application and that since the plaintiff is no longer interested in the survey which was required, there is no point of going on with the application. The advocate further argued that the plaintiff/applicant cannot be forced to urge on an application he is not willing to proceed with.
I have considered the application as well as the opposition thereto by the defendant/Respondent's advocate. The consent which was recorded on 2. 7.2015 was asking surveys to visit parcel Nos. Kitale Municipality Block 17/Bidii 230 and 20 0and ascertain whether there existed an access road between the two properties. The plaintiff/Applicant was clear that the report was required before the application dated 15. 6.2015 could be heard.
There are now new developments in that the plaintiff/Applicant is doing away with the issue of pursuing the access road but now wants a surveyor sent to the ground to determine the acreages of the two parcels. I have looked at the notice of motion dated 7. 10. 2015 together with the proposed amendment to the point. The proposed amended plaint has rendered the motion of 15. 6.2015 superfluous. This is because the plaintiff's claim has completely changed from that of determination of whether there is an access road in between the two plots to that of whether there is encroachment. It will therefore be unnecessary to pursue a line which will be discharged once the amendment is allowed. It is the need to amend the plaintiff's claim which necessitated the application for withdrawal. I therefore find that the application for withdrawal of notice of motion dated 15. 6.2015 is justifiable in the circumstances. I allow the plaintiff to withdraw the motion dated 15. 6.2015 with costs to the defendant/Respondent.
It is so ordered.
Dated , signed and delivered at Kitale on this 22nd day of October,2015.
E. OBAGA
JUDGE.
In the presence of M/S Arunga for Plaintiff.
Court Assistant - Winnie.
E. OBAGA
JUDGE
22/10/15