https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12447

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI HIGH COURT HCCCMISC APP NO. E555/2024 STANLEY JOHN AWITI T/A SKIGATE AUCTIONEERS.APPLICANT……..,………………APPLICANT VS TUIMAVANA ALIVERETI TUKAI..................1ST RESPONDENT MICHAEL NJITHI WAHEIRE……………..……2ND RESPONDENT LUCY NDUTA WAHEIRE…………………….….3RD RESPONDENT RULING 1. This matter came up in court on 27th July,2026 for directions and or clarification of the court records before Lady Justice Janet Mulwa on 12th February 2025. 2. On the said date, Mr Gatoto was recorded to appear for the Appellant and Mr Nyakiangana for the Respondent. 3. Mr Gatoto addressed the Court and stated that he would wish to withdraw the ‘Appeal’ with no orders as to costs. 4. The Court proceeded to record as follows: *’Appeal withdrawn with costs to the Respondent. File closed’.* 5. On 27th July 2026, Mr Nyakiangana told court that the matter was being mentioned for directions on the Respondent’s Bill of Costs dated 8th September 2025 which arose from the withdrawn appeal, in which costs were awarded to the 1st Respondent. 6. On his part Mr Gatoto stated that what was withdrawn was a Miscellaneous Application filed in the matter. To him, the court erroneously indicated that an Appeal was withdrawn. He reiterated that they had filed an application for leave and not an appeal and as such there was an error on the face of the record. 7. In response, Mr Nyakiangana stated that the Application dated 4th June, 2024, had a prayer seeking stay pending appeal and a copy of the memorandum of appeal is attached to that application. 8. I have perused the court records of 12th, February 2025, and the Notice of Motion Application dated 4th June,2025. 9. The Notice of Motion Application dated 4thJune,2025 seeks for various orders, and relevant for purposes of this Ruling, are prayers (b), (e) and (f).The Applicant under prayer (a,) prays for leave to appeal the ruling dated 3rd may 2024 out of time and prayer (e) seeks for orders of stay of proceedings pending hearing and determination of the appeal. prayer (f) seeks for orders that upon grant of prayer (b) the attached memorandum of appeal be considered as duly filed. 10. From the foregoing, it is clear that the matter before court was the Application dated 4th June 2024, seeking leave to file an appeal out of time. 11. That Application was not heard on merit. After various court appearances, the matter was finally withdrawn on 12th February, 2025.The intended appeal was not allowed to be filed out of time or at all. 12. The appeal did not crystalize and was never a live matter before the court since it was anchored on the application dated 4th June,2024. It follows therefore that there was no appeal capable of being withdrawn on 12th February, 2025.There is therefore an error on the face of the record to the extend that an appeal was withdrawn. 13. The court therefore clarifies that the Application dated 4th June 2024, was the subject of withdrawal on 12th February 2025 and consequently the court hereby corrects the record appropriately to read ‘Application withdrawn with costs’ **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31TH DAY OF JULY, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **NYAKIANGANA FOR APPLICANT** **GATOTOT FOR RESPONDENT.** **COURT ASSISTANT: AGGREY**