[2022] KEHC 1976 (KLR)
The court found that since the parties had entered into a consent settling the dispute before the respondent filed a replying affidavit, and considering the appellant's financial difficulties, it was appropriate to mark the appeal as withdrawn with each party bearing their own costs. The court exercised its...
Source-derived case information.
- Citation
- [2022] KEHC 1976 (KLR)
- Parties
- Appellant: Michael Jura Oduor; Respondent: Vitalis Ogongo Agano
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E006 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Withdrawal and Costs
- Outcome
- Appeal marked as wholly withdrawn; each party to bear their own costs; file closed.
- Judges
- RE Aburili
- Legal Topics
- Withdrawal of Appeal, Costs Award, Consent Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Jura Oduor
Appellant
Vitalis Ogongo Agano
Respondent
Procedural Posture
Civil Appeal / Ruling on Withdrawal and Costs
Legal Issues
- 1 Whether the appeal should be marked as withdrawn following a consent between the parties.
- 2 Who should bear the costs of the appeal and interlocutory application.
Ratio Decidendi
The court found that since the parties had entered into a consent settling the dispute before the respondent filed a replying affidavit, and considering the appellant's financial difficulties, it was appropriate to mark the appeal as withdrawn with each party bearing their own costs. The court exercised its discretion under Section 27 of the Civil Procedure Act, emphasizing that the resolution by consent and the absence of substantive opposition justified a no-costs order. The issue of whether the appeal was filed without leave was deemed moot due to the consent recorded in the lower court. The file was ordered closed to bring the matter to a final conclusion.
Court Disposition
Appeal marked as wholly withdrawn; each party to bear their own costs; file closed.
Orders
- The appeal is hereby marked as wholly withdrawn.
- Each party shall bear their own costs of the appeal and the interlocutory application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CIVIL APPEAL NO. E006 OF 2022
CORAM: HON. R.E. ABURILI, J
MICHAEL JURA ODUOR............................APPELLANT
VERSUS
VITALIS OGONGO AGANO.....................RESPONDENT
(Appeal from the Judgment and decree of Hon. S.W. Mathenge, Resident Magistrate at Bondo in
Bondo Civil Suit No. E005 of 2021 delivered on 21/02/2022)
RULING
1. I have heard both counsel for the appellants and the respondent. It is conceded that the appellant and the respondents counsel entered into a consent before the lower settling the matter giving rise to this appeal and that this appeal is no longer tenable.
2. The only issue is on costs. I have heard Mr. Kouko and Mr. Oduol Advocates on the issue of costs.
3. Having perused the application on record and especially the undisputed fact that the parties have entered into a consent settling the matter and the financial difficulties that led to the appellant being committed to civil jail, I do not find it appropriate to order for costs in this matter where a consent was recorded before the Respondent filed his replying affidavit.
4. Therefore, in order to bring this very small matter to closure, I order that this appeal is hereby marked as wholly withdrawn with each part to bear their own costs of the appeal and the interlocutory application. The issue of the appeal being filed without leave is overtaken by events of recording of the consent in the lower court between the judgment debtor and the Respondents’ counsel. This file is effectively closed.
5. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 28TH DAY OF FEBRUARY, 2022
R.E. ABURILI
JUDGE