[2009] KEHC 3544 (KLR)
The court found that although the respondents had improperly filed both Grounds of Opposition and a Replying Affidavit, their intention to oppose the main application was clear. The court emphasized that its primary function is to determine the rights of parties rather than to punish procedural lapses, especially...
Source-derived case information.
- Citation
- [2009] KEHC 3544 (KLR)
- Parties
- Appellant: Thomas Otieno Mbewa; Respondent: William Okoth Abatha (Legal Rep. Estate of Valentine Abatha Awuor); Respondent: Homa Bay Teachers Children Scheme
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 53 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application Regarding Withdrawal of Grounds of Opposition
- Outcome
- Application to withdraw Grounds of Opposition allowed with costs to the applicant.
- Judges
- AO Muchelule
- Legal Topics
- Withdrawal of Pleadings, Grounds of Opposition, Replying Affidavit, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Otieno Mbewa
Appellant
William Okoth Abatha (Legal Rep. Estate of Valentine Abatha Awuor)
Respondent
Homa Bay Teachers Children Scheme
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application Regarding Withdrawal of Grounds of Opposition
Legal Issues
- 1 Whether the respondents can withdraw the Grounds of Opposition after filing both Grounds of Opposition and a Replying Affidavit contrary to Order 50 rule 16(1) of the Civil Procedure Rules.
- 2 Whether the court should allow the withdrawal and on what terms.
Ratio Decidendi
The court found that although the respondents had improperly filed both Grounds of Opposition and a Replying Affidavit, their intention to oppose the main application was clear. The court emphasized that its primary function is to determine the rights of parties rather than to punish procedural lapses, especially where such lapses can be remedied by an award of costs. The court held that the respondents could withdraw the Grounds of Opposition, provided they pay the applicant's costs occasioned by the withdrawal. The application to withdraw was therefore allowed, with costs to the applicant.
Court Disposition
Application to withdraw Grounds of Opposition allowed with costs to the applicant.
Orders
- Respondents are allowed to withdraw the Grounds of Opposition.
- Respondents to pay costs occasioned by the withdrawal to the applicant.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
Civil Appeal 53 of 2009
THOMAS OTIENO MBEWA …..……..........................….…… APPELLANT
VERSUS
WILLIAM OKOTH ABATHA )
Legal Rep. Estate of VALENTINE ) ……………..…….. RESPONDENT
ABATHA AWUOR HOMA BAY )
TEACHERS CHILDREN SCHEME )
RULING
When the Respondents were served with this application they sought to defend it and filed both Grounds of Opposition and a Replying Affidavit. Under Order 50 r 16(1) of the Civil Procedure Rulesthey were entitled to file either of them, but not both. The Applicant noticed the lapse of the part of the Respondents and was going to take up the point at a preliminary stage. The Respondents now seek to withdraw the Grounds of Opposition in order to be left with the Replying Affidavit. Mr. Otienofor the Applicant opposes the request to withdraw and wonders under what provisions of the law the request is being made. Mr. Osoro for the Respondents indicated he was making the application under Order 24 rule 2of the Civil Procedure Rules. It is basic that those provisions don’t apply. But, like I said in the foregoing, the Respondents have demonstrated an intention to oppose the main application. I am mindful that courts exist for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline (Chemwolo and another vs. Kubende [1984] LLR 219 (CAK)). There is no error or default that cannot be put right by payment of costs. Section 3A of the Civil Procedure Act exists for the purpose of making sure that the wider interests of justice are taken care of.
I allow the request by the Respondents to withdraw the Grounds of Opposition, but ask them to pay costs.
DATED at KISII this 29thday of May, 2009.
A.O. MUCHELULE
JUDGE