[2015] KEHC 2352 (KLR)
The court found that since the applicant had filed a notice of withdrawal of the application, there was no need to address the issues raised in the preliminary objection. The application was marked as wholly withdrawn, and costs were awarded to the respondent. The withdrawal rendered the substantive issues and the...
Source-derived case information.
- Citation
- [2015] KEHC 2352 (KLR)
- Parties
- Applicant: Rajni K. Somaia; Respondent: Delphis Bank Limited (Now Oriental Commercial Bank Limited); Respondent: Victoria Blue Services
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 94 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Withdrawal of Application
- Outcome
- application withdrawn with costs to the respondent
- Judges
- EM Muchoki
- Legal Topics
- Stay of Execution, Withdrawal of Application, Taxed Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rajni K. Somaia
Applicant
Delphis Bank Limited (Now Oriental Commercial Bank Limited)
Respondent
Victoria Blue Services
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Withdrawal of Application
Legal Issues
- 1 Whether the application for stay of execution and setting aside of warrants should be determined after the notice of withdrawal.
- 2 Whether costs should be awarded upon withdrawal of the application.
Ratio Decidendi
The court found that since the applicant had filed a notice of withdrawal of the application, there was no need to address the issues raised in the preliminary objection. The application was marked as wholly withdrawn, and costs were awarded to the respondent. The withdrawal rendered the substantive issues and the preliminary objection moot, and the court exercised its discretion to award costs to the respondent as the successful party upon withdrawal.
Court Disposition
application withdrawn with costs to the respondent
Orders
- The application dated 13th July 2015 is marked as wholly withdrawn.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL APPLICATION NO. 94 OF 2008
RAJNI K. SOMAIA …............................................... APPLICANT/RESPONDENT
VERSUS
DELPHIS BANK LIMITED (Now
ORIENTAL COMMERCIAL BANK LIMITED).............RESPONDENT/APPLICANT
AND
VICTORIA BLUE SERVICES …................................................2ND RESPONDENT
RULING
By the Notice of Motion dated 13th July 2015 the applicant sought orders to stay execution of the taxed costs herein, setting aside of the warrant of attachment and proclamation dated 22nd June 2015 and 2nd July 2015 respectively and for any further orders as may be just to grant.
The gist of the application as could be discerned from the grounds on its face as well as the supporting affidavit was that there was need to take accounts as the respondent having acted as Advocate for the applicant in various matters was holding money to the credit of the applicant. It was vehemently opposed and the respondent relied on the replying affidavit sworn on 21st July 2015 by Wesley Robinson Maranga Gichaba, Advocate. The matter was certified urgent on 14th July 2015 and fixed for hearing on 17th July 2015 but it went before a Judge who adjourned it to 22nd July 2015. When it came before me and before it could be heard the Respondent's Advocate raised preliminary objection which this Court proceeded to hear. It was that preliminary objection that was scheduled to come for ruling on 8th October 2015.
I have however seen a Notice of Withdrawal of the whole application. The same is dated 19th August 2015 and was filed on 20th August 2015 (during vacation). In view of this notice I see no need to address myself to the issues raised in the preliminary objection. Instead I shall mark the application dated 13th July 2015 as wholly withdrawn with costs to the Respondent. It is so ordered.
Signed, dated and delivered at Kisumu this 8th day of October, 2015
E. N. MAINA
JUDGE
In presence of:-
N/A for the Applicant/Respondent
N/A for the Respondent/Applicant
N/A for the 2nd Respondent
CC: Moses Okumu
COURT: Ruling marked as delivered and file returned to the registry
E. N. MAINA
JUDGE
8/10/2015