[2022] KEELC 36 (KLR)
The court found that the application for withdrawal of the appeal was made in conformity with the law. The court exercised its discretion under the Civil Procedure Act and Rules to allow the withdrawal of the appeal. No orders as to costs were made, as requested by the appellant and in the absence of opposition from...
Source-derived case information.
- Citation
- [2022] KEELC 36 (KLR)
- Parties
- Appellant: Dick Otieno Okumu; Respondent: John Ooro Minene
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 46 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Withdrawal of Appeal
- Outcome
- Appeal withdrawn with no orders as to costs.
- Judges
- GMA Ongondo
- Legal Topics
- Withdrawal of Appeal, Powers of Appellate Court, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dick Otieno Okumu
Appellant
John Ooro Minene
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Withdrawal of Appeal
Legal Issues
- 1 Whether the appellant is entitled to withdraw the appeal as sought.
- 2 Whether the withdrawal should be granted with or without orders as to costs.
Ratio Decidendi
The court found that the application for withdrawal of the appeal was made in conformity with the law. The court exercised its discretion under the Civil Procedure Act and Rules to allow the withdrawal of the appeal. No orders as to costs were made, as requested by the appellant and in the absence of opposition from the respondent. The court was satisfied that the withdrawal was meritorious and that there was no reason to deny the application or to impose costs.
Court Disposition
Appeal withdrawn with no orders as to costs.
Orders
- The application by the appellant’s counsel for the withdrawal of this appeal is allowed.
- No orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
Okumu v Minene (Environment and Land Appeal 46 of 2021) [2022] KEELC 36 (KLR) (28 April 2022) (Ruling)
Neutral citation: [2022] KEELC 36 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal 46 of 2021
GMA Ongondo, J
April 28, 2022
Between
Dick Otieno Okumu
Appellant
and
John Ooro Minene
Respondent
(Being an appeal from the Chief Magistrates Court from the judgment of the Honourable Learned Trial Magistrate HON. T. OLANDO (SRM) sitting at Homa-Bay on the 20th November, 2019. )
Ruling
1. The appellant, Dick Otieno Okumu through learned counsel, Ms Odera instructed by M/S Nyauke and Company Advocates has sought to withdraw the instant appeal with no orders as to costs. That the appellant does not intent to pursue the appeal.
2. The appeal was initiated by way of a memorandum of appeal dated 26th November 2019 based on the grounds, inter alia;a.The learned trial Magistrate having established that the appellant was the rightful owner of the suit parcel of land failed in law and in fact to make finding that the respondent was in occupation of the suit parcel of land unjustifiably.b.The learned trial magistrate misdirected himself by not finding that the appellant had proved his case on balance of probability and as such the appellant was entitled to all the prayers as sought in the subordinate court.
3. section 78 (2) of the Civil Procedure Act Chapter 21 Laws of Kenya and Order 42 Rule 32 of the Civil Procedure Rules, 2010 provide for the powers of the appellate court on appeal. This court has the powers to give any direction before the hearing of the appeal as stipulated in section 79 (C) of the Civil Procedure Act Chapter 21 Laws of Kenya.
4. The application is made in conformity with the law. I find it meritorious.
5. So, the application by the appellant’s counsel for the withdrawal of this appeal is hereby allowed with no orders with costs.
DATED, DELIVERED AND SIGNED AT HOMA- BAY THIS 28TH DAY OF APRIL 2022G.M.A ONG’ONDOJUDGEPresent;a) Ms Odera, learned counsel for the appellantb) Terrence, court assistantG.M.A ONG’ONDOJUDGE