[2013] KEHC 415 (KLR)
The court found that since the Memorandum of Appeal had not been served on the respondent and no substantial proceedings had occurred, the appellant was entitled to withdraw the appeal. The court exercised its discretion not to award costs, noting that nothing much had taken place in the file and the withdrawal was...
Source-derived case information.
- Citation
- [2013] KEHC 415 (KLR)
- Parties
- Appellant: Mungai Kivuti; Respondent: Margaret Lorna Kariuki; Respondent: The Independent Electoral and Boundaries Commission; Respondent: The Transition Authority
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 15 of 2013
- Procedural Posture
- Civil Appeal / Withdrawal Before Hearing
- Outcome
- Appeal withdrawn; no order as to costs.
- Judges
- HI Ong'udi
- Legal Topics
- Appeal Withdrawal, Service of Process, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mungai Kivuti
Appellant
Margaret Lorna Kariuki
Respondent
The Independent Electoral and Boundaries Commission
Respondent
The Transition Authority
Respondent
Procedural Posture
Civil Appeal / Withdrawal Before Hearing
Legal Issues
- 1 Whether the appeal should be withdrawn due to non-service of the Memorandum of Appeal on the respondent.
- 2 Whether costs should be awarded upon withdrawal of the appeal.
Ratio Decidendi
The court found that since the Memorandum of Appeal had not been served on the respondent and no substantial proceedings had occurred, the appellant was entitled to withdraw the appeal. The court exercised its discretion not to award costs, noting that nothing much had taken place in the file and the withdrawal was made at an early stage before service or substantive engagement by the parties.
Court Disposition
Appeal withdrawn; no order as to costs.
Orders
- The appeal is withdrawn as prayed.
- No order as to costs.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL APPEAL NO. 15 OF 2013
MUNGAI KIVUTI.........................................................................................PLAINTIFF
VERSUS
MARGARET LORNA KARIUKI..............................................................1ST DEFENDANT
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION................................................................2ND DEFENDANT
THE TRANSITITON AUTHORITY........................................................3RD DEFENDANT
9/5/2013
Coram: H.I. Ong'udi – Judge
Njue -CC
N/A by or for all parties
COURT:
The appellant and Mr. Mogusu for the 2nd and 3rd Respondents were notified to come today.
None of them is here. The Deputy Registrar is directed to write and ask the parties to come to
court for a mention on 16/5/2013 2. 00 p.m. Without fail.
H.I. ONGUDI
JUDGE
9/5/2013
16/5/2013
Coram: H.I. Ong'udi – Judge
Njue – CC
Mr. Okwaro for Appellant (present)
Mr. Mogusu for 1st Respondent - present
Mr. Muiruri Mungai for 2nd Respondent – Absent Appeared in lower court
for 2nd Respondent
OKWARO:
The Memorandum of Appeal was not served on the Respondent. The Appellant feels that the
Respondent not having been served with any papers he wishes to withdraw the appeal. I
therefore apply that the appeal be withdrawn to enable us pursue the matter before the Lower
Court. Mr. Mogusu may not have anything to say as he has not been served.
MOGUSU:
Its presumed we are on record. We have no objection to the appeal being withdrawn.
But I think we are entitled to costs.
COURT:
Its confirmed that the Memorandum of appeal has not been served on the Respondent.
Nothing much has taken place in this file. The appeal is therefore withdrawn as prayed.
No order as to costs.
H.I. ONG'UDI
JUDGE
16/5/2013