[2019] KEHC 11208 (KLR)
The court held that any party has the right to withdraw from proceedings and cannot be compelled to remain, regardless of whether the matter is a constitutional petition. The only issue for the court to determine upon withdrawal is the question of costs, which in this case was not significant as the proceedings had...
Source-derived case information.
- Citation
- [2019] KEHC 11208 (KLR)
- Parties
- Applicant: Makupa Transit Shade Limited; Applicant: Boss Freight Terminal Limited; Applicant: Container Freight Stations Association of Kenya (through its members); Respondent: Kenya Ports Authority; Respondent: Kenya Railways Corporation
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 80 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Application for Withdrawal of Parties
- Outcome
- Withdrawal of the 1st and 9th Petitioners from the petition allowed; no order as to costs.
- Judges
- DO Ogembo
- Legal Topics
- Withdrawal of Parties, Costs Award, Advocate Client Relationship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Makupa Transit Shade Limited
Applicant
Boss Freight Terminal Limited
Applicant
Container Freight Stations Association of Kenya (through its members)
Applicant
Kenya Ports Authority
Respondent
Kenya Railways Corporation
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Withdrawal of Parties
Legal Issues
- 1 Whether the 1st and 9th Petitioners can withdraw from the petition without their consent having been given to join the petition.
- 2 Whether costs should be awarded to the respondents or to the advocate for the petitioners upon withdrawal.
- 3 Whether the withdrawal of the 1st and 9th Petitioners affects the maintainability of the entire petition.
Ratio Decidendi
The court held that any party has the right to withdraw from proceedings and cannot be compelled to remain, regardless of whether the matter is a constitutional petition. The only issue for the court to determine upon withdrawal is the question of costs, which in this case was not significant as the proceedings had just commenced. The court declined to award costs to the advocate for the petitioners, holding that such matters are between advocate and client and not for the court to determine in this context. The withdrawal of the 1st and 9th Petitioners was allowed, with no order as to costs, and the advocate was left at liberty to pursue costs directly from his clients if he so wished.
Court Disposition
Withdrawal of the 1st and 9th Petitioners from the petition allowed; no order as to costs.
Orders
- The 1st and 9th Petitioners are allowed to withdraw from the petition.
- There is no order as to costs.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 80 of 2018
IN THE MATTER OF: THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: THE EAST AFRICAN COMMUNITY CUSTOMS MANAGEMENT ACT 2004
AND
IN THE MATTER OF: THE CARRIAGE OF GOODS BY SEA ACT, CAP (392) LAWS OF KENYA 2004
AND
IN THE MATTER OF: THE HAGUE RULES 1924 AND THE HAGUE VISIBLY RULES 1968
AND
IN THE MATTER OF: A CONSTITUTIONAL PETITITION BY THE CONTAINER FREIGHT STATIONS ASSOCIATION OF KENYA THROUGH ITS MEMBERS, NAMELY:
1. MAKUPA TRANSIT SHADE LIMITED
2. REGIONAL LOGISTICS LIMITED
3. MITCHEL COTTS FREIGHT (K) LIMITED
4. KENCONT LIMITED
5. INTERPEL CONTAINER FREIGHT STATION LIMITED
6. FOCUS CONTAINER FREIGHT STATION LIMITED
7. AWANAD ENTERPRISES KENYA LIMITED
8. CONSOLBASE LIMITED
9. BOSS FREIGHT TERMINAL LIMITED
10. PORTSIDE FREIGHT TERMINALS LIMITED
11. MOMBASA ISLAND CARGO TERMINAL LIMITED
12. AUTOPORT FREIGHT TERMINALS LIMITED
13. SIGNON CONTAINER FREIGHT STATION LIMITED (hereinafter collectively
referred to as “THE ASSOCIATION”).....................................................PETITIONERS
AND
1. KENYA PORTS AUTHORITY
2. KENYA RAILWAYS CORPORATION...........................................RESPONDENTS
RULING
1. By a Notice of Motion application herein dated 16th April, 2018 the 1st and 9th Petitioners seek to withdraw from the petition herein on the grounds that their consent to be joined to the petition was not given.
2. Mr. Rono for the Applicants submitted that the issue of costs of the withdrawal can be addressed by court and the cost, if any taxed.
3. Mr. Ondego for the 1st Respondent on his part submitted that if a party withdraws from the petition then the entire petition is bad in law and that the entire petition should be struck out.
4. Mr. Karina counsel for the 2nd Respondent supported the withdrawal but asked for their costs.
5. Mr. Buti counsel for the rest of the Petitioners objected to the withdrawal stating that he is the advocate who received instructions from the 1st and 9th Petitioners and other Petitioners, and that it is not true that the 1st and 9th Petitioners never consented to the petition. Counsel submitted that if the court exercises its discretion to allow the withdrawal then the 1st and 9th Petitioners should pay his costs.
6. On the submission of Mr. Ondego that the entire petition be struck out Mr. Buti submitted that there is no such application before the court now, but that Mr. Ondego had filed an application for striking out the petition. He should therefore prosecute his application if he wants the court to strike out the petition.
Determination
7. In my view, when a party want to exit court proceedings a party cannot be denied the right to do that. It matters not that it is a petition. Parties can only come to court, and testify if they so with. The only issue which a party has to contend with is the costs of withdrawal. This court cannot tell whether or not Mr. Buti secured consent instructions to join the 1st and 9th Petitioners to the petition. That is an issue squarely within advocate and client, and this court cannot order costs to be paid to Mr. Buti. Mr. Buti knows how to secure such costs. The only costs this court is concerned with is that which the Respondents have incurred in order to defend the petition. But even then this court notes that the proceedings in this matter have just started and parties have not incurred so much costs.
8. In the exercise of my discretion in this matter I allow the said withdrawal of the 1st and 9th Petitioners from the petition herein. There are no orders on costs but Mr. Buti is at liberty to pursue costs from the 1st and 9th Petitioners if indeed he acted on their instructions.
Orders accordingly.
Dated, Signed and Delivered in Mombasa this 9th day of April, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Ms. Ombogo holding brief Mr. Karina for 2nd Respondent
Mr. Ochieng holding brief Mr. Kongere for 1st Respondent
Mr. Mohamed holding brief Mr. Buti for Petitioners
Mr. Kaunda Court Assistant