[2020] KEHC 7785 (KLR)
The court held that the notice of withdrawal filed on 27/1/2020 effectively disposed of Petition No. 7 of 2019 and closed the file in the absence of any order varying or setting aside the withdrawal. Consequently, the application dated 27/1/2020, filed after the withdrawal, was a nullity and could not be...
Source-derived case information.
- Citation
- [2020] KEHC 7785 (KLR)
- Parties
- Applicant: Thomson Kerongo; Applicant: Rigena Human Rights Watchdog Organization; Respondent: Dr. Robert Ripng’eno Cheruiyot; Respondent: Dr. Otieno Enock Ondari; Respondent: Procurement Officer Kisii Teaching and Referral Hospital; Respondent: The Kisii Teaching and Referral Hospital; Respondent: The Kisii County Government; Respondent: The Ethics and Anti-Corruption Commission
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Petition 7 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Withdrawal and Striking Out Application
- Outcome
- application struck out; file closed; costs to respondents
- Judges
- AG Ndung'u
- Legal Topics
- Withdrawal of Petition, Amendment of Pleadings, Mutunga Rules Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomson Kerongo
Applicant
Rigena Human Rights Watchdog Organization
Applicant
Dr. Robert Ripng’eno Cheruiyot
Respondent
Dr. Otieno Enock Ondari
Respondent
Procurement Officer Kisii Teaching and Referral Hospital
Respondent
The Kisii Teaching and Referral Hospital
Respondent
The Kisii County Government
Respondent
The Ethics and Anti-Corruption Commission
Respondent
Procedural Posture
Constitutional Petition / Ruling on Withdrawal and Striking Out Application
Legal Issues
- 1 Whether the petition could be withdrawn without compliance with the Mutunga rules.
- 2 Whether the application dated 27/1/2020 could be filed after withdrawal of the petition.
- 3 Whether leave was required to amend the petition under rule 18 of the Mutunga rules.
Ratio Decidendi
The court held that the notice of withdrawal filed on 27/1/2020 effectively disposed of Petition No. 7 of 2019 and closed the file in the absence of any order varying or setting aside the withdrawal. Consequently, the application dated 27/1/2020, filed after the withdrawal, was a nullity and could not be entertained. The court further noted that any audience given to the petitioner after the withdrawal was in error, as there was no proper petition before the court. The application was therefore struck out, and the file deemed closed by virtue of the withdrawal notice. Costs were awarded to the respondents.
Court Disposition
application struck out; file closed; costs to respondents
Orders
- The application dated 27/1/2020 is struck out.
- The file is deemed closed by virtue of the withdrawal notice dated 27/1/2020.
Full Case Text
Judgment text and source record
34 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CORAM: A.K NDUNG’U , J
PETITION NO. 7 OF 2019
THOMSON KERONGO.................................................................................1ST PETITIONER
RIGENA HUMAN RIGHTS WATCHDOG ORGANIZATION................2ND PETITIONER
VERSUS
DR. ROBERT RIPNG’ENO CHERUIYOT.................................................1ST RESPONDENT
DR. OTIENO ENOCK ONDARI ................................................................2ND RESPONDENT
PROCUREMENT OFFICER KISII TEACHING AND
REFERRAL HOSPITAL...............................................................................3RD RESPONDENT
THE KISII TEACHING AND REFERRAL HOSPITAL...........................4TH RESPONDENT
THE KISII COUNTY GOVERNMENT........................................................5TH RESPONDENT
THE ETHICS AND ANTI-CORRUPTION COMMISSIO.........................6TH RESPONDENT
RULING
1. The petition herein was lodged in court on 20/11/2019. At the initial exparte hearing, directions were given that the same be served. Responses which include a preliminary objection from the 1st and 2nd respondents were filed.
2. On the 27/11/2019 the parties appeared before the court and directions were given that the matter be mentioned on 18/12/2019 for directions as to hearing.
3. On the 18/12/2019 the trial Judge was not sitting and the sitting sister court ordered matter to be mentioned on 13/2/2020 for directions.
4. In the intervening period, the petitioner on the 27/1/2020 filed a notice of withdrawal of the petition against the respondents.
5. On the same date the petitioner filed, in the same file, a notice of motion under certificate of urgency seeking various reliefs. When this application was placed before court, directions were given that the matter be placed before me today for directions as to hearing.
6. There was no appearance for the petitioner when the matter came up today.
7. Mr. Godia has submitted that no leave was sought to amend the petition and therefore the amended petition should be struck out to pave way for the hearing of the preliminary objection by the 1st and 2nd respondents.
8. Ms Wairimu has stated that the purported withdrawal is not in line with the Mutunga rules as no notice to withdraw was filed. Even assuming there was a withdrawal, the application dated 27/1/2020 was filed in a vacuum as there was no pending petition. Again, even if the aim was to amend, leave ought to have been sought as per rule 18 of the Mutunga rules.
9. Mr. Mosota has urged that the matter be struck out for want of prosecution.
10. I have considered the record and the submissions by counsel. There is on record a notice of withdrawal filed and received in this court on 27/1/2020. By virtue of this withdrawal, this petition being Petition No. 7 of 2019 was thus disposed of and the file closed in the absence of any order varying or setting aside the withdrawal notice.
11. Having withdrawn the petition, the petitioner could not legally and procedurally file the application dated 27/1/2020 in the withdrawn file. That filing is a nullity ab inito.
12. Indeed the audience given to the petitioner on 3/2/2020 and on 6/2/2020 was in error as there was no proper petition before the court following the withdrawal of the same on 27/1/2020.
13. In the premises, the application dated 27/1/2020 is struck out and the file herein deemed closed by virtue of the withdrawal notice dated 27/1/2020. The respondents shalls costs.
Dated, signedanddeliveredatKisiithis13thday ofFebruary, 2020.
A. K. NDUNG'U
JUDGE
Mr. Mosota, advocate for 3rd respondent
Mr. Godia, advocate for 1st and 2nd respondents
Wairimu Kamau, advocate for 6th respondent