[2017] KEHC 460 (KLR)
The court found that the Plaintiff/Applicant had provided sufficient reasons for seeking withdrawal of the Notice of Motion dated 7/2/2017, including that the application had been overtaken by events and was no longer necessary. The law and judicial precedent allow a party to withdraw an application or suit at their...
Source-derived case information.
- Citation
- [2017] KEHC 460 (KLR)
- Parties
- Applicant: Samuel Nyabichere Mochomerson; Respondent: Daniel Sereria Makara; Respondent: Jacob Gesase Marwa; Respondent: Musa Marwa; Respondent: Rioba Marwa
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2017
- Procedural Posture
- Notice of Motion / Withdrawal of Application
- Outcome
- Notice of Motion dated 7/2/2017 marked as withdrawn; leave granted to amend plaint; no order as to costs.
- Judges
- GMA Ongondo
- Legal Topics
- Withdrawal of Application, Temporary Injunctions, Leave to Amend Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Nyabichere Mochomerson
Applicant
Daniel Sereria Makara
Respondent
Jacob Gesase Marwa
Respondent
Musa Marwa
Respondent
Rioba Marwa
Respondent
Procedural Posture
Notice of Motion / Withdrawal of Application
Legal Issues
- 1 Whether the Plaintiff/Applicant is entitled to withdraw the Notice of Motion dated 7/2/2017.
- 2 Whether the Plaintiff/Applicant should be granted leave to amend the plaint.
Ratio Decidendi
The court found that the Plaintiff/Applicant had provided sufficient reasons for seeking withdrawal of the Notice of Motion dated 7/2/2017, including that the application had been overtaken by events and was no longer necessary. The law and judicial precedent allow a party to withdraw an application or suit at their discretion. The court also considered the constitutional imperative to facilitate the just and expeditious resolution of disputes. Accordingly, the application to withdraw was allowed, with no order as to costs, and the Plaintiff/Applicant was granted leave to amend the plaint and serve the Defendant/Respondents.
Court Disposition
Notice of Motion dated 7/2/2017 marked as withdrawn; leave granted to amend plaint; no order as to costs.
Orders
- Notice of Motion dated 7/2/2017 is marked as withdrawn with no order as to costs.
- The Plaintiff/Applicant is granted leave to amend plaint and serve the Defendant/Respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
ENVIRONMENT AND LAND CASE NO. 12 OF 2017
SAMUEL NYABICHERE MOCHOMERSON....PLAINTIFF/APPLICANT
VERSUS
DANIEL SERERIA MAKARA
JACOB GESASE MARWA
MUSA MARWA
RIOBA MARWA............................................RESPONDENT/DEFENDANTS
RULING
1. The Plaintiff/Applicant SAMUEL NYABICHERE MOCHOMERSON filed a Notice of Motion dated 7/2/2017 under certificate of urgency pursuant to Sections 1A,1B and 3A Civil Procedure Act as read with Orders 51 and 40 of the Civil Procedure Rules, 2010. He is seeking an order of temporary injunction against the Defendant/Respondents in respect of LR. NO. BUKIRA BWISABOKA/852. He is represented by Mr. Mwita Kerario counsel instructed by Kerario Marwa and Company Advocates.
2. The Defendant/Respondent namely DANIEL SERERIA MAKARA, JACOB GESASE MARWA, MUSA MARWA and RIOBA MARWA have not responded to the application as they were apparently not served. They are not in court today.
3. The Notice of Motion application is for mention today. The Plaintiff/Applicants counsel has applied to abandon the application and it be marked it as withdrawn. He has informed the court that it has been overtaken by events and the orders sought are not necessary. He has sought leave of the court to amend the plaint and proceed with the main suit.
4. I have studied the Notice of Motion application and the prayer by the Plaintiff/Applicant counsel, Mr. Mwita Kerario. The law allows a party to withdraw a matter if he or she deems it fit to do so as judicially recognized in the case of Council of Governors –Vs- Senate & Anor (2014) KLR –SCK. Moreover, even a suit can be terminated by way of Notice of withdrawal: see PIL KENYA LTD VS. OPPONG (2009) KLR 442 at 450.
5. The Plaintiff/Applicant has sought to withdraw the application filed on 7/2/2017. He has given reasons for it’s withdrawal including intention to proceed with the main suit. Furthermore, Article 159 (2) (b) and (c) of the Constitution of Kenya 2010 is very relevant to the instant application for withdrawal.
6. I find the application to withdraw Notice of Motion dated 7/2/2017, merited. I accordingly allow it with no orders as to costs.
7. I, therefore, make the following orders;-
a) Notice of Motion dated 7/2/2017 be and is hereby marked as withdrawn with no order as to costs.
b) The Plaintiff/Applicant is granted leave to amend plaint and serve the Defendant/Respondents
c) Mention on 4/4/2017 for directions.
GEORGE M.A. ONGONDO
JUDGE
Delivered, Signed and Dated in open Court at Migori this 15th day of March 2017.
In the presence of :-
Mr. Mwita Kerario counsel for the Plaintiff/Applicant
Non appearance for the Defendant/Respondents
Court Assistant - Tom