[1997] KECA 187 (KLR)
The court granted leave to withdraw the application because the Notice of Appeal sought to be served out of time was not filed by the applicant but by another party to the judgment. Since the respondents did not object to the withdrawal, and the application was improperly before the court, it was appropriate to...
Source-derived case information.
- Citation
- [1997] KECA 187 (KLR)
- Parties
- Applicant: Wilson Orito Omusina; Respondent: John Kimosop Maina; Respondent: James Mukotswe; Respondent: Mumias Sugar Company Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 89 of 1997
- Procedural Posture
- Civil Application / Application for Extension of Time to Serve Notice of Appeal
- Outcome
- Application marked as withdrawn with costs to the respondents.
- Legal Topics
- Extension of Time, Notice of Appeal, Withdrawal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Orito Omusina
Applicant
John Kimosop Maina
Respondent
James Mukotswe
Respondent
Mumias Sugar Company Ltd
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to Serve Notice of Appeal
Legal Issues
- 1 Whether leave should be granted to withdraw the application for extension of time to serve notice of appeal out of time.
- 2 Whether costs should be awarded to the respondents upon withdrawal of the application.
Ratio Decidendi
The court granted leave to withdraw the application because the Notice of Appeal sought to be served out of time was not filed by the applicant but by another party to the judgment. Since the respondents did not object to the withdrawal, and the application was improperly before the court, it was appropriate to allow the withdrawal. The court further ordered that the respondents be awarded costs of the application, assessed at Kshs. 2,000, in accordance with the principle that costs follow the event.
Court Disposition
Application marked as withdrawn with costs to the respondents.
Orders
- Leave granted to withdraw the application.
- Application marked as withdrawn.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI CORAM: (BOSIRE AG. JA (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 89 OF 1997
BETWEEN WILSON ORITO OMUSINA ....................................APPLICANT AND 1. JOHN KIMOSOP MAINA 2. JAMES MUKOTSWE 3. MUMIAS SUGAR COMPANY LTD .........................RESPONDENT
(Being an application for extension of time to serve notice of appeal out of time in an intended appeal from the judgement of the High Court of Kenya at Nairobi (Justice Mbogholi-Msagha dated 16th December, 1992 in H.C.C.C. NO. 3265 OF 1985 *********************
RULING
Miss J.A. Guserwa, Counsel on record for the applicant has applied for leave to withdraw this application on the ground that the Notice of Appeal sought to be served out of time was not filed by the applicant but a different person who was also a party in the judgment already appealled against. Mr Balala for the respondents does not have any objection. In the circumstances and for the reasons given by Counsel for the applicant I grant the leave sought and order that the application be marked as withdrawn. The respondent shall have the costs of the application assessed at Kshs.2,000/=.
Dated at Nairobi this 4th day of June 1997.
S.E.O. BOSIRE
......................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR