[2025] KEHC 6724 (KLR)
The court found that since the applicants had filed a notice of withdrawal of their application for stay and review before the ruling was delivered, the application stood withdrawn. Given that the respondent had already filed a preliminary objection and written submissions in response to the application, the court...
Source-derived case information.
- Citation
- [2025] KEHC 6724 (KLR)
- Parties
- Applicant: Hillary Odhiambo; Applicant: George Otieno; Respondent: Beatrice Aoko Otieno
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E014 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application (withdrawal of Application for Stay and Review)
- Outcome
- Application marked as withdrawn; costs awarded to the respondent.
- Judges
- A. Ong’injo
- Legal Topics
- Stay of Execution, Review of Orders, Withdrawal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hillary Odhiambo
Applicant
George Otieno
Applicant
Beatrice Aoko Otieno
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application (withdrawal of Application for Stay and Review)
Legal Issues
- 1 Whether the application for stay of execution and review should be entertained after the applicants filed a notice of withdrawal.
- 2 Whether the respondent is entitled to costs upon withdrawal of the application.
Ratio Decidendi
The court found that since the applicants had filed a notice of withdrawal of their application for stay and review before the ruling was delivered, the application stood withdrawn. Given that the respondent had already filed a preliminary objection and written submissions in response to the application, the court exercised its discretion to award costs of the withdrawn application to the respondent. The withdrawal rendered the substantive issues in the application moot, and no further orders were necessary except for costs.
Court Disposition
Application marked as withdrawn; costs awarded to the respondent.
Orders
- The application dated 20th November 2024 is marked as withdrawn.
- The respondent is awarded costs of the withdrawn application.
Full Case Text
Judgment text and source record
22 paragraphs
Odhiambo & another v Otieno (Civil Appeal E014 of 2023) [2025] KEHC 6724 (KLR) (13 February 2025) (Ruling)
Neutral citation: [2025] KEHC 6724 (KLR)
Republic of Kenya
In the High Court at Migori
Civil Appeal E014 of 2023
A. Ong’injo, J
February 13, 2025
Between
Hillary Odhiambo
1st Applicant
George Otieno
2nd Applicant
and
Beatrice Aoko Otieno
Respondent
Ruling
1. By way of a Notice of motion dated 20th November 2024, the applicant seeking for the following orders that: -i.Spentii.This Honourable court be pleased to grant stay of execution of the judgment and decree in Migori CMCC No. 188 of 2019; Beatrice Aoko Otieno vs Hillary Odhiambo and George Otieno pending hearing and determination of this application.iii.This Honourable court be pleased to grant stay of proceeding in declaratory suit being Migori Civil Case No. E167 of 2023 Beatrice Aoko vs Directline Insurance Co. Ltd pending hearing and determination of this application.iv.The Honourable court be pleased to review orders of dismissal issued on 18th September 2024 and reinstate the Applicant’s application dated 13th August 2024 for hearing and determination.v.Costs of this application be in the cause.
2. The application is premised on the grounds on its face and supported by the sworn affidavit of Everlyne Okwoyo of even date.
3. In response, the Respondent filed a Notice of preliminary objection dated 16th December 2024. In the said objection the Respondent raises the grounds that the application has been brought in disregard to the mandatory provision of Section 7 of the Civil Procedure Act.
4. As this court was in the process of writing this ruling and upon checking on the CTS, I noticed the Applicants had filed a notice of withdrawal of the application dated 20th November 2024. The notice of withdrawal is dated 15th January 2025.
5. In the circumstances, this application is marked as withdrawn. In view of the fact that the Respondent filed a notice of preliminary objection together with written submissions, this court proceeds to award the Respondent costs of the withdrawal of the application.
Orders accordinglyDELIVERED DATED AND SIGNED IN MIGORI THIS 13THDAY OF FEBRUARY, 2025. A. ONGINJOJUDGE