[2018] KECA 510 (KLR)
The Court found that since the appellant had filed a notice of withdrawal of the appeal, the proper course was to mark the appeal as withdrawn under Rule 81 of the Court of Appeal Rules. Given that the withdrawal was only effected the day before the scheduled hearing and counsel for the respondents had to attend...
Source-derived case information.
- Citation
- [2018] KECA 510 (KLR)
- Parties
- Appellant: Stephen M. Mogaka; Respondent: Independent Electoral and Boundaries Commission; Respondent: Vincent Kemosi Mogaka; Respondent: Returning Officer, West Mugirango Constituency
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Election Appeal 2 of 2017
- Procedural Posture
- Election Petition / Appeal Withdrawal
- Outcome
- Appeal marked as withdrawn; costs awarded to the respondents.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Withdrawal of Appeal, Costs Award, Court of Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen M. Mogaka
Appellant
Independent Electoral and Boundaries Commission
Respondent
Vincent Kemosi Mogaka
Respondent
Returning Officer, West Mugirango Constituency
Respondent
Procedural Posture
Election Petition / Appeal Withdrawal
Legal Issues
- 1 Whether the appeal should be struck out for want of prosecution or marked as withdrawn.
- 2 Whether costs should be awarded to the respondents upon withdrawal of the appeal.
Ratio Decidendi
The Court found that since the appellant had filed a notice of withdrawal of the appeal, the proper course was to mark the appeal as withdrawn under Rule 81 of the Court of Appeal Rules. Given that the withdrawal was only effected the day before the scheduled hearing and counsel for the respondents had to attend court, the court exercised its discretion to award costs to the respondents.
Court Disposition
Appeal marked as withdrawn; costs awarded to the respondents.
Orders
- The appeal is marked as withdrawn under Rule 81 of the Court of Appeal Rules.
- Costs are awarded to the respondents.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E . M. GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJ.A.)
ELECTION PETITION CIVIL APPEAL NO. 2 OF 2017
BETWEEN
STEPHEN M. MOGAKA............................................................APPELLANT
AND
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION.................................FIRST RESPONDENT
VINCENT KEMOSI MOGAKA...........................SECOND RESPONDENT
RETURNING OFFICER, WEST
MUGIRANGO CONSTITUENCY..........................THIRD RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Nyamira,
(Makau, J.)dated 21st November, 2017
in
HIGH COURT ELECTION PETITION NO. 2 OF 2017)
***********************************
ORDER OF THE COURT
This matter was listed for a notice for the appellant to show cause as to why his appeal should not be struck out for failing to take further action from the time the notice was filed.
Although the appellant has not attended Court, a notice of withdrawal of the appeal was filed yesterday through his advocate.
Mr. Mogikoyo, counsel for the 2nd respondent and holding brief for 1st respondent, applies for costs. We grant the same as the withdrawal was only done yesterday and counsel has had to attend Court.
In the circumstances, we mark the appeal as withdrawn under Rule 81of theCourt of Appeal Rules and award costs to the respondents.
DATED at Kisumu this 19th June, 2018.
E. M. GITHINJI
.....................................
JUDGE OF APPEAL
HANNAH OKWENGU
......................................
JUDGE OF APPEAL
J. MOHAMMED
....................................
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR.