[2014] KEHC 216 (KLR)
The court found that since the parties had, by consent, agreed to have the application for dismissal of the appeal marked as withdrawn and settled, there was no need to determine the merits of the application. The court therefore ordered the application marked as withdrawn and settled, and made no order as to costs,...
Source-derived case information.
- Citation
- [2014] KEHC 216 (KLR)
- Parties
- Appellant: Samuel Mung'athia M'Ikiara & Julia Mbura M'Ikiara (suing as legal representative of the estate of M'Ikiara Mutirithia – Deceased); Respondent: Isaya Ikamati M'Njia (the legal representative of Ntonja Mutirithia)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 47 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application marked as withdrawn and settled by consent; no order as to costs.
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Withdrawal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Mung'athia M'Ikiara & Julia Mbura M'Ikiara (suing as legal representative of the estate of M'Ikiara Mutirithia – Deceased)
Appellant
Isaya Ikamati M'Njia (the legal representative of Ntonja Mutirithia)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution.
- 2 Whether costs should be awarded upon withdrawal of the application.
Ratio Decidendi
The court found that since the parties had, by consent, agreed to have the application for dismissal of the appeal marked as withdrawn and settled, there was no need to determine the merits of the application. The court therefore ordered the application marked as withdrawn and settled, and made no order as to costs, reflecting the parties' agreement and the principle that parties may resolve interlocutory applications by consent without further adjudication.
Court Disposition
Application marked as withdrawn and settled by consent; no order as to costs.
Orders
- The application dated 19/8/2014 is marked as withdrawn and settled.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL NO. 47 OF 2010
SAMUEL MUNG'ATHIA M'IKIARA & JULIA MBURA M'IKIARA (suing as legal representative of the estate of M'IKIARA MUTIRITHIA – DECEASED)..............................APPELLANTS
Versus
ISAYA IKAMATI M'NJAA (the legal representative of NTONJA MUTIRITHIA..............................RESPONDENT.
RULING
This application is dated 19/8/2014 and seeks orders;-
That the Honourable Court be pleased to dismiss the Appeal herein for want of prosecution.
That the costs to this application and the entire appeal be borne by the appellant.
It has the following grounds
(a) More than one (1) year has lapsed without the Appellants setting down the appeal for hearing.
(b) The Appellants has (sic) depicted a lack of willingness to prosecution the Appeal herein.
(c ) Litigation must come to an end.
(d ) No prejudice whatsoever or at all shall be occasioned to the Appellants upon dismissal of the Appeal.
When the application was heard inter-parties on 30/10/2014, the parties, by consent, agreed to have the application marked withdrawn and settled with no order as to costs.
It is ordered that the application be marked as withdrawn and settled. I grant no order as to costs.
Delivered in Open Court at Meru this 30th day of October, 2014 in the presence of;
Cc. Daniel/Lilian
Muthomi for Appellant
Ngunjiri holding brief for Respondent
P. M .NJOROGE
JUDGE.