[2018] KEHC 2713 (KLR)
The court held that while a party has an unfettered right to withdraw a matter before the court, such withdrawal does not prejudice the right of the opposing party to recover costs incurred as a result of the proceedings. The court relied on the Supreme Court's pronouncement in Nicholas Kiptoo Arap Korir Salat vs...
Source-derived case information.
- Citation
- [2018] KEHC 2713 (KLR)
- Parties
- Applicant: Mwaniki Gitahi & Partners Advocates; Respondent: Jitegemee Co-operative Savings & Credit Society Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 233 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Withdrawal of Chamber Summons
- Outcome
- Application to withdraw chamber summons allowed; costs awarded to respondent.
- Judges
- CA Otieno
- Legal Topics
- Withdrawal of Application, Costs Award, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwaniki Gitahi & Partners Advocates
Applicant
Jitegemee Co-operative Savings & Credit Society Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Withdrawal of Chamber Summons
Legal Issues
- 1 Whether the applicant is entitled to withdraw the chamber summons after substantial argument.
- 2 Whether the respondent is entitled to costs incurred due to the withdrawal.
Ratio Decidendi
The court held that while a party has an unfettered right to withdraw a matter before the court, such withdrawal does not prejudice the right of the opposing party to recover costs incurred as a result of the proceedings. The court relied on the Supreme Court's pronouncement in Nicholas Kiptoo Arap Korir Salat vs I.E.B.C & 3 Others, affirming that withdrawal cannot be barred, but costs must be considered. Accordingly, the application to withdraw was allowed, with an order that the applicant pay the respondent's costs incurred up to the point of withdrawal.
Court Disposition
Application to withdraw chamber summons allowed; costs awarded to respondent.
Orders
- The chamber summons dated 19/3/2018 is withdrawn.
- The applicant shall pay the costs so far incurred by the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION NO. 233 OF 2017
MWANIKI GITAHI & PARTNES ADVOCATES....................APPLICANT
VERSUS
JITEGEMEE CO-OPERATIVE
SAVINGS & CREDIT SOCIETY LIMITED.......................RESPONDENT
R U L I N G
1. After substantially arguing his Chamber Summons dated 19/3/2018 Mr. Mwaniki sought to withdraw the said summons upon detecting some shortfalls with it.
2. The advocates for the client, Mr. Chamwada, opposed the application for withdrawal on the basis that they had responded to the same, filed papers, attended court and that it had been substantially argued.
3. This court proceeds from the learning that just as much as any litigant cannot be hindered from accessing the court system, none should be hindered from withdrawing a dispute once filed the only consideration being that on costs incurred by the other side.
4. The supreme court in Nicholas Kiptoo Arap Korir Salat vs I.E.B.C & 3 Others laid that position of law when it said:
“A party’s right to withdraw a matter before court cannot be taken away. A court cannot bar a party from withdrawing his matter”.
5. That being the position, I do allow the application to withdraw the chamber summons dated 19/3/2018 but noting that the matter had been opposed and therefore the respondent had incurred legal costs, I do order that the Advocate/Applicant shall pay the costs so far incurred by the client/respondent.
Dated and delivered at Mombasa this 24th day of October 2018.
P.J.O. OTIENO
JUDGE