[2019] KEELC 354 (KLR)
The court marked the application for review as withdrawn upon the applicant's advocate's instructions, noting that the respondent had not been served and therefore the issue of costs did not arise. The court further declared itself functus officio, having already delivered its judgment on 31st July, 2019. No further...
Source-derived case information.
- Citation
- [2019] KEELC 354 (KLR)
- Parties
- Appellant: Stanley Nyaga M’Bei; Appellant: Calvin Gitonga M’Bei; Respondent: M’Bei Kiraithe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 4 of 2019
- Procedural Posture
- Civil Appeal / Application for Review of Consent Judgment; Application Withdrawn Before Hearing
- Outcome
- Application withdrawn; no order as to costs.
- Judges
- FM Njoroge
- Legal Topics
- Review of Consent Orders, Withdrawal of Application, Functus Officio, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Nyaga M’Bei
Appellant
Calvin Gitonga M’Bei
Appellant
M’Bei Kiraithe
Respondent
Procedural Posture
Civil Appeal / Application for Review of Consent Judgment; Application Withdrawn Before Hearing
Legal Issues
- 1 Whether the court should review the consent judgment delivered on 31.07.2019.
- 2 Whether the application for review should be allowed or withdrawn.
- 3 Whether costs should be awarded upon withdrawal of the application.
Ratio Decidendi
The court marked the application for review as withdrawn upon the applicant's advocate's instructions, noting that the respondent had not been served and therefore the issue of costs did not arise. The court further declared itself functus officio, having already delivered its judgment on 31st July, 2019. No further orders were made, and no costs were awarded. The withdrawal of the application concluded the matter without substantive consideration of the grounds for review.
Court Disposition
Application withdrawn; no order as to costs.
Orders
- The application dated 7th November, 2019 is marked as withdrawn.
- No costs are awarded.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CIVIL APPEAL CASE NO. 04 OF 2019
STANLEY NYAGA M’BEI..........................................1ST APPELLANT
CALVIN GITONGA M’BEI........................................2ND APPELLANT
VERSUS
M’BEI KIRAITHE...........................................................RESPONDENT
RULING
1. This application is dated 7th November, 2019 and seeks orders:
1. That the honourable court do review the orders made on 31. 07. 2019 and direct that the appeal be heard on merit.
2. That costs of this application be provided for.
2. The application is buttressed by the affidavit of M’Mbei Kiraithe, the applicant and has the following grounds:-
1. That the court delivered judgment on 31. 7.2019 on the basis of a consent entered by the parties.
2. That the applicant’s understanding of the consent has been vitiated by the Respondents’ (sic) conduct.
3. That the applicant has discovered new and important matter which was previously not within his knowledge.
4. That there is sufficient reason to have the consent order reviewed.
3. On 16th December, 2019, Mr. Mark Muriithi, the applicant’s advocate intimated to court that he had instructions to withdraw the application. He also told the court that the issue of costs did not arise because the respondent had not been served.
4. In the circumstances, this application is marked withdrawn. The court having delivered its judgment on 31st July, 2019, hereby declares itself functus officio.
5. No costs are awarded.
6. It is so ordered.
Delivered in open Court at Chuka this 16th day of December, 2019 in the presence of:
CA: Ndegwa
Mark Muriithi for the Applicant
P. M. NJOROGE
JUDGE