[2023] KEELC 16320 (KLR)
The Environment and Land Court lacks jurisdiction to allow the withdrawal of a notice of appeal once it has been filed under the Court of Appeal Rules. The notice of appeal dated November 25, 2022, having been filed, vests jurisdiction in the Court of Appeal, and not in the trial court. Therefore, the application to...
Source-derived case information.
- Citation
- [2023] KEELC 16320 (KLR)
- Parties
- Applicant: Paul Juma Ombidi; Respondent: Benard Odhiambo Omollo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 32 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Application to Withdraw Notice of Appeal
- Outcome
- Application to withdraw the notice of appeal declined for want of jurisdiction.
- Judges
- GMA Ongondo
- Legal Topics
- Withdrawal of Appeal, Jurisdiction of Court, Notice of Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Juma Ombidi
Applicant
Benard Odhiambo Omollo
Respondent
Procedural Posture
Environment and Land Case / Ruling on Application to Withdraw Notice of Appeal
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to allow withdrawal of a notice of appeal already filed under the Court of Appeal Rules.
- 2 Whether the withdrawal of the notice of appeal dated November 25, 2022 can be allowed by this court.
Ratio Decidendi
The Environment and Land Court lacks jurisdiction to allow the withdrawal of a notice of appeal once it has been filed under the Court of Appeal Rules. The notice of appeal dated November 25, 2022, having been filed, vests jurisdiction in the Court of Appeal, and not in the trial court. Therefore, the application to withdraw the notice of appeal cannot be entertained or allowed by this court. The court is bound by the principle that it cannot act without jurisdiction, as established in the Lillian S case. Consequently, the application to withdraw the notice of appeal is declined.
Court Disposition
Application to withdraw the notice of appeal declined for want of jurisdiction.
Orders
- The application to withdraw the notice of appeal dated November 25, 2022 is declined.
Full Case Text
Judgment text and source record
23 paragraphs
Ombidi v Omollo (Environment & Land Case 32 of 2021) [2023] KEELC 16320 (KLR) (22 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16320 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Case 32 of 2021
GMA Ongondo, J
March 22, 2023
Between
Paul Juma Ombidi
Applicant
and
Benard Odhiambo Omollo
Respondent
Ruling
1. On March 3, 2023, Nancy Nyarige and Company Advocates for the defendant, Benard Odhiambo Omollo lodged a notice of withdrawal of notice of appeal dated February 28, 2023 pursuant to rule 81 of the Court of Appeal Rules, 2010.
2. By the said notice, the defendant intends to wholly withdraw the notice of appeal dated November 25, 2022 duly filed herein for all purposes.
3. It is trite that the right of a party to withdraw a matter including the notice referred to in paragraph 2 herein above, cannot be taken away; see Nicholas Kiptoo Korir Arap Salat v Independent Electoral and Boundaries Commission and 7 others[2014] eKLR.
4. By dint of order 42 rule 6(4) of the Civil Procedure Rules, 2010, an appeal to the Court of Appeal is deemed to have been filed herein by the notice of appeal dated November 25, 2022 and referred to in paragraph 2 hereinabove.
5. This court is conscious of rule 81 (supra) under which the Notice had been given as well as rules 2 and 75 of the Court of Appeal Rules 2010.
6. In the circumstances, this court is devoid of jurisdiction over the notice of appeal. So, this court can’t make one more step in this matter as I subscribe to the decision in the case of Owners of Motor Vessel. “Lillian S” v Caltex Oil (Kenya) Limited [1989] eKLR.
7. A fortiori, I decline to allow the withdrawal of the notice of appeal dated November 25, 2022.
8. It is so ordered.
DELIVERED, DATED AND SIGNED THIS 22ND DAY OF MARCH 2023. G.M.A ONG’ONDOJUDGEPRESENT:1. Okello and Mutiva F, court assistants.