[2014] KEHC 1406 (KLR)
The court found that the plaintiff had indeed filed a notice of withdrawal in Webuye SRMCC No. 193 of 2010, which was received and stamped by the court on 23.1.12. There was no evidence provided by the defendant to show that a formal application was required for withdrawal or that the suit remained pending. The...
Source-derived case information.
- Citation
- [2014] KEHC 1406 (KLR)
- Parties
- Plaintiff: Situma Wanyama Francis; Defendant: Jotham Simiyu Mafunga
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 79 of 2011
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Abuse of Process, Withdrawal of Suit, Pending Suit, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Situma Wanyama Francis
Plaintiff
Jotham Simiyu Mafunga
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the existence of a previously filed and withdrawn suit constitutes an abuse of court process.
- 2 Whether a formal application is required to withdraw a suit under Kenyan civil procedure.
- 3 Whether the current suit should be struck out due to alleged pendency of a similar suit.
Ratio Decidendi
The court found that the plaintiff had indeed filed a notice of withdrawal in Webuye SRMCC No. 193 of 2010, which was received and stamped by the court on 23.1.12. There was no evidence provided by the defendant to show that a formal application was required for withdrawal or that the suit remained pending. The court held that the filing of a notice of withdrawal is sufficient to terminate the earlier suit, and in the absence of any contrary evidence, the preliminary objection lacked merit. The objection was therefore dismissed, and the defendant was advised that any recourse regarding costs could be pursued in the withdrawn suit.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCC NO. 79 OF 2011
SITUMA WANYAMA FRANCIS.................................. PLAINTIFF
VERSUS
JOTHAM SIMIYU MAFUNGA.................................. DEFENDANT
RULING
The Defendant/Respondent has raised a preliminary point of law to the application seeking to strike out his defence. The preliminary point is seeking to have the Plaintiff's suit struck out for being an abuse of the court process. The Defendant submits there is a pending suit vide Webuye SRMCC No. 193 of 2010 between the same parties seeking similar orders as the present suit. This contravenes the provisions of the law. The defendant submits further that if the plaintiff wanted to withdraw the Webuye suit, they ought to have filed a formal application not just filing notice of withdrawal.
The Plaintiff in response submits this is the only suit existing between the parties herein. That Webuye SRMCC No. 193 of 2010 was withdrawn on 23. 1.12 and has annexed a notice of withdrawal filed in his supplementary affidavit. They have cited Article 159 of the Constitution and asked the court not to strike out this suit on technicality.
I have considered in totality the submissions presented by the parties herein. It is not in dispute that the Plaintiff had filed a suit vide Webuye SRMCC No. 193 of 2010 regarding the same subject matter. According to the Plaintiff, that suit is already withdrawn while the defendant contends otherwise. I have seen the notice of withdrawal annexed as 'SWF 1'.It bears stamp from Webuye court showing it was received on 23. 1.12 which is over a year to the raising of this Preliminary Objection.
The Defendant has not cited what provisions of the law that requires a party withdrawing his suit to file a formal application. In my understanding filing "notice to withdraw" itself is satisfactory procedure. Once the notice was received by court, that suit ceased to be pending. The Defendant did also not annex any proceedings in the Webuye SRMCC no 193 of 2010 file to verify that the notice of withdrawal had not been endorsed as a court order. In the absence of such evidence, I find the objection is not merited. The defendant can get recourse in the withdrawn suit by assessing their costs if any. In the end the objection is dismissed with costs to the Plaintiff.
RULING DELIVERED AND DATED in open court this 4th day of February 2014.
A. OMOLLO
JUDGE.