[2021] KEELC 358 (KLR)
The court held that the appellant was within his right to withdraw the appeal before it was set down for hearing by filing a Notice of withdrawal, as provided under Order 25 Rule 1 of the Civil Procedure Rules. The respondent had been duly served with both the memorandum of appeal and the Notice of withdrawal and...
Source-derived case information.
- Citation
- [2021] KEELC 358 (KLR)
- Parties
- Appellant: Stephen Mugao Nkungu; Respondent: Julia Wanja Muchege
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E009 of 2021
- Procedural Posture
- Civil Appeal / Withdrawal Before Hearing
- Outcome
- Appeal withdrawn with costs to the respondent.
- Legal Topics
- Withdrawal of Appeal, Costs Award, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mugao Nkungu
Appellant
Julia Wanja Muchege
Respondent
Procedural Posture
Civil Appeal / Withdrawal Before Hearing
Legal Issues
- 1 Whether the appellant is entitled to withdraw the appeal as of right before hearing.
- 2 Whether the respondent is entitled to costs upon withdrawal of the appeal.
Ratio Decidendi
The court held that the appellant was within his right to withdraw the appeal before it was set down for hearing by filing a Notice of withdrawal, as provided under Order 25 Rule 1 of the Civil Procedure Rules. The respondent had been duly served with both the memorandum of appeal and the Notice of withdrawal and did not object to the withdrawal, save for the issue of costs. The court found that, in the circumstances, the withdrawal was proper and that the respondent was entitled to costs as requested. Accordingly, the appeal was marked as withdrawn with costs to the respondent.
Court Disposition
Appeal withdrawn with costs to the respondent.
Orders
- The appeal is hereby marked as withdrawn with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC APPEAL CASE NO. E009 OF 2021
STEPHEN MUGAO NKUNGU ...........................APPELLANT
VERSUS
JULIA WANJA MUCHEGE..............................RESPONDENT
RULING
1. This matter was scheduled for directions on 7th December, 2021 to confirm whether the original record from the subordinate court had been availed and whether the Record of Appeal has been filed and served. On 10th November, 2021, the Appellant through his advocates on record M/s. Kijaru, Njeru & Co. Advocate filed a Notice of withdrawal of the appeal. When the matter came up before court on 7th December, 2021, only Mr. Murango Mwenda advocate for the Respondent was present in court having been served to attend. There was no appearance on behalf of the appellant. The Respondent’s counsel confirmed to the court that they had been served with the Notice of withdrawal of the Appeal and that the Respondent had no objection to the withdrawal subject to the payment of costs.
2. Order 25 Rule 1 of the Civil Procedure Rules provides as follows:
1. At any time before the setting down of the suit for hearing the Plaintiff may by notice in writing, which shall be served on all parties, wholly discontinued his suit against all or any of the Defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.
3. Under the Civil Procedure Act, “suit” means all proceedings commenced in any manner prescribed. In my opinion, this also includes an appeal. Accordingly, pursuant to the provisions of Order 25 Rule 1 of the Civil Procedure Rules, the Appellant was within his right to withdraw the appeal by filing the Notice of withdrawal herein. It is also apparent that the Respondent had been served with the memorandum of appeal and the Notice of withdrawal, hence the attendance by the Respondent’s advocate in court.
4. Having perused the Notice of withdrawal dated 10th November, 2021 and filed on even date, I make the following orders:
a) The Appeal herein is hereby marked as withdrawn with costs to the Respondent.
5. It is so ordered.
DELIVERED IN OPEN COURT AT CHUKA THIS 7TH DAY OF DECEMBER, 2021 IN THE PRESENCE OF:
CA: NDEGWA
Murango Mwenda for the Respondent
N/A for Appellant.
C. K. YANO,
JUDGE.