[2024] KEELC 4605 (KLR)
The court found that since the appeal had not been admitted in accordance with Section 79B of the Civil Procedure Act, the respondents were not entitled to costs upon withdrawal of the appeal. The court relied on precedent which holds that, without admission and service of the appeal, the respondent has no...
Source-derived case information.
- Citation
- [2024] KEELC 4605 (KLR)
- Parties
- Appellant: Mulue Muasya Katu; Respondent: Kimenye Masaku; Respondent: Wambua Kimenye
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E013 of 2021
- Procedural Posture
- Environment and Land Appeal / Withdrawal of Appeal Before Admission
- Outcome
- Appeal withdrawn with no order as to costs.
- Judges
- TW Murigi
- Legal Topics
- Withdrawal of Appeal, Costs Award, Admission of Appeal, Memorandum of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mulue Muasya Katu
Appellant
Kimenye Masaku
Respondent
Wambua Kimenye
Respondent
Procedural Posture
Environment and Land Appeal / Withdrawal of Appeal Before Admission
Legal Issues
- 1 Whether the respondent is entitled to costs upon withdrawal of an appeal before its admission.
- 2 Whether the withdrawal of the appeal should be allowed without an order as to costs.
Ratio Decidendi
The court found that since the appeal had not been admitted in accordance with Section 79B of the Civil Procedure Act, the respondents were not entitled to costs upon withdrawal of the appeal. The court relied on precedent which holds that, without admission and service of the appeal, the respondent has no substantive role in the proceedings except in interlocutory applications. Therefore, the withdrawal of the appeal was allowed with no order as to costs.
Court Disposition
Appeal withdrawn with no order as to costs.
Orders
- The appeal is withdrawn.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
Katu v Masaku & another (Environment and Land Appeal E013 of 2021) [2024] KEELC 4605 (KLR) (12 June 2024) (Ruling)
Neutral citation: [2024] KEELC 4605 (KLR)
Republic of Kenya
In the Environment and Land Court at Makueni
Environment and Land Appeal E013 of 2021
TW Murigi, J
June 12, 2024
Between
Mulue Muasya Katu
Appellant
and
Kimenye Masaku
1st Respondent
Wambua Kimenye
2nd Respondent
Ruling
1. This matter came up for directions on 7th March, 2024, when Ms Kellen Learned Counsel for the Appellant informed the Court that they had filed a Notice of withdrawal of Appeal dated 26th October, 2023.
2. Ms Kyalo, Learned Counsel for the 2nd Respondent had no objection to the Appeal being withdrawn subject to payment of costs.
3. Ms Kellen argued that the 2nd Respondent is not entitled to costs for the reason that the appeal had not taken off. Counsel contended that the 2nd Respondent had been awarded costs in the application dated 21st November, 2021.
4. The record shows that the Appellant filed a Memorandum of Appeal dated 3rd November 2021 through the firm of Muumbi and Co. Advocates. On 26th October 2023, the Appellant filed a Notice of Withdrawal of Appeal through the firm of Muumbi & Co. Advocates.
5. I have carefully perused the record and I note that the Appeal has not been admitted in accordance with Section 79B of the Civil Procedure Act. In the circumstances, it is the finding of this court that Respondent is not entitled to costs. In so finding, I am persuaded by the holding in the case of Muli Mutiso vs Mbithi Ndolo & Another, HCC.A 120/2003 (Mks) where the court held that:“without admission of an appeal and service thereon there is yet no role for the Respondent save perhaps in an interlocutory application say for stay of execution pending appeal. Costs in such a case would be limited to those interlocutory matters and not the Appeal per se. If a Respondent enters the Appeal, fixes it for mention for an unclear purpose and then the Memorandum of Appeal is withdrawn, he cannot claim costs. I say so because as yet he has no role to play in it. The matter is for the judge and the Appellant who can take action on it without the Respondent.”
6. The upshot of the foregoing is that the Appeal herein is withdrawn with no orders as to costs.
….……………………………….HON. T. MURIGIJUDGERULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 12TH DAY OF JUNE, 2024. IN THE PRESENCE OF:Ms. Kyalo of the 2nd Respondent.Court Assistant Kwemboi2MKN RLG ELC APPEAL NO. E013 OF 2021