[2000] KEHC 189 (KLR)
The court found that since the plaintiff had applied to discontinue the suit and there was no counterclaim by the defendant, the defendant had no claim that could be reinstated. The defendant cannot compel the plaintiff to continue prosecuting a suit he no longer wishes to pursue. The only relief available to the...
Source-derived case information.
- Citation
- [2000] KEHC 189 (KLR)
- Parties
- Plaintiff: Timothy Jowell Kamano; Defendant: Kariuki Githua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1939 of 1998
- Procedural Posture
- Civil Suit / Ruling on Application for Review of Withdrawal Order
- Outcome
- application dismissed with costs
- Legal Topics
- Withdrawal of Suit, Review of Court Orders, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Jowell Kamano
Plaintiff
Kariuki Githua
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review of Withdrawal Order
Legal Issues
- 1 Whether the court erred in allowing the plaintiff to withdraw the suit without serving the defendant or his advocate with notice.
- 2 Whether the defendant is entitled to have the suit reinstated or to any other relief following the withdrawal.
Ratio Decidendi
The court found that since the plaintiff had applied to discontinue the suit and there was no counterclaim by the defendant, the defendant had no claim that could be reinstated. The defendant cannot compel the plaintiff to continue prosecuting a suit he no longer wishes to pursue. The only relief available to the defendant in such circumstances is an award of costs, which remains at the discretion of the court. The court concluded that the application for review lacked merit and dismissed it with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL SUIT NO. 1939 OF 1998
TIMOTHY JOWELL KAMANO…..…………………………………..PLAINTIFF -VERSUS- KARIUKI GITHUA……………………....….…………………………..DEFENDANT
RULING
The applicant in this application is asking the Court to review its Order of 14th December, 1999 in which the court allowed the Plaintiff to withdraw his case which he did. The applicant says that it was wrong for the Court to grant leave to withdraw without serving him or his advocate with a notice. The court did not take into account that the applicant had obtained an injunction against the plaintiff which injunction according to him was still in force.
I have read the proceedings and the affidavit in support of this application and note from the record that the plaintiff applied to discontinue the suit which application was allowed on 14. 12. 99. There was no counter claim in the defence and hence there is no claim by the defendant, which he could ask to be reinstated. The applicant cannot force the plaintiff to continue with a suit if he did not wish to prosecute. The only thing the applicant as defendant in that suit could ask for is costs for the suit still at the discretion of the court.
This application has no merit and it is dismissed with costs.
Dated and delivered this 29th September, 2000.
KASANGA MULWA
JUDGE