[1998] KECA 194 (KLR)
The Court held that since there is no provision in the Court of Appeal Rules allowing for the withdrawal of an application, the proper course is to strike out the application rather than permit its withdrawal. The preliminary objection by the respondents was upheld, and the applicants' Notice of Motion was struck...
Source-derived case information.
- Citation
- [1998] KECA 194 (KLR)
- Parties
- Applicant: Sun and Fun Limited; Applicant: Mayungu Restaurant Ltd; Respondent: Samuel Kanogo Ritho; Respondent: Onmdaln Dpil Aidhtoiwf Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 58 of 1998
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application struck out with costs to the respondents.
- Judges
- JE Gicheru, AB Shah, E Owuor
- Legal Topics
- Stay of Execution, Withdrawal of Application, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sun and Fun Limited
Applicant
Mayungu Restaurant Ltd
Applicant
Samuel Kanogo Ritho
Respondent
Onmdaln Dpil Aidhtoiwf Limited
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants can withdraw a Notice of Motion under the Court of Appeal Rules.
- 2 Whether the preliminary objection by the respondents should be upheld.
Ratio Decidendi
The Court held that since there is no provision in the Court of Appeal Rules allowing for the withdrawal of an application, the proper course is to strike out the application rather than permit its withdrawal. The preliminary objection by the respondents was upheld, and the applicants' Notice of Motion was struck out with costs awarded to the respondents. The Court did not address the merits of the underlying application for stay of execution, as the procedural issue was dispositive.
Court Disposition
Application struck out with costs to the respondents.
Orders
- The applicants' Notice of Motion dated 13th March 1998 is struck out with costs to the respondents.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Gicheru, Shah & Owuor JJ.A)
CIVIL APPLICATION NO. NAI. 58 OF 1998 (20/98 UR)
BETWEEN
1. SUN AND FUN LIMITED .................. APPLICANT/2ND DEFENDANT
2. MAYUNGU RESTAURANT LTD ............... APPLICANT/3ND DEFENDANT
AND
1. SAMUEL KANOGO RITHO ................. R2. E SP ONMDAELNITN/DPIL AIDNHTOIWF F LIMITED ................ RESPONDENT/1ST DEFENDANT
(Application for stay of execution pending hearing and determination of an appeal from the ruling of the High Court of Kenya at Nairobi (Hon. Justice Kuloba) dated 30th September, 1997
in
H.C.C.C No. 4403 of 1994)
*********************
RULING OF THE COURT
Dr. Khaminwa wishes to withdraw the applicants' Notice of Motion dated 13th of March 1998. There is no provision in our Rules for withdraw of an application. The matter before us relates to a preliminary objection taken by the respondents.
We order that the applicants' Notice of Motion be and is hereby struck out with costs to the respondents.
Dated and delivered at Nairobi this 6th day of October, 1998.
J. E. GICHERU
.................
JUDGE OF APPEAL
A. B. SHAH
.................
JUDGE OF APPEAL
E. OWUOR
.................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR