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Court of AppealDismissedCivil Application No. NAI. 217 of 1999 (NYR.17/99)

SAMSON M’IKUNYUA v CECILIA NKATHA MBUGUA & ANOTHER [2000] KECA 180 (KLR)

Court of Appeal
26 October 2000
179 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled it cannot allow an application to be withdrawn because its rules lack a withdrawal provision, so unwanted applications are simply dismissed.

What this practically means

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Executive summary

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This brief ruling of the Court of Appeal at Nyeri, delivered by Omolo, Shah and Bosire, JJ.A on 26 October 2000, disposes of Civil Application No. NAI. 217 of 1999 (NYR.17/99), in which Samson M'Ikunyua, the applicant, had sought an injunction and stay of proceedings in an intended appeal against the ruling and order of Osiemo, J of the High Court at Meru dated 25 June 1999 in H.C.C.C. No. 96 of 1998. The respondents were Cecilia Nkatha Mbugua and the Meru Central Land Disputes Tribunal. When the application came before the Court, Mr Kariuki, appearing for the applicant, applied to withdraw it, explaining that the land which formed its subject-matter had already been transferred to the first respondent, who had in turn sold a portion of it to third parties. The Court observed that the Rules of the Court contain no provision for the withdrawal of an application. It therefore did not permit a withdrawal but disposed of the matter by dismissal, holding: 'The application is dismissed but we make no order as to costs.' No order as to costs was made, so each party bears its own costs. The Court made no findings on the merits of the intended appeal, did not disturb the ruling of Osiemo, J, and expressed no view on the underlying land dispute. The practical significance of the ruling is its confirmation that, absent a withdrawal provision in the Court's Rules, an application the applicant no longer wishes to pursue is dismissed rather than marked withdrawn, with costs then in the Court's discretion - here, no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application could be withdrawn, there being no provision for withdrawal of an application in the Rules of this Court.
  2. 2.What disposition should be made of an application whose subject-matter (land) has been transferred to the first respondent, who has sold a portion of it to third parties.

Key legal issues

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01

Whether an application may be withdrawn where the Rules of the Court make no provision for withdrawal

Holding

No. The Court declined to treat the application as withdrawn and instead dismissed it, making no order as to costs.

Reasoning

Counsel for the applicant, Mr Kariuki, applied to withdraw the application because the land forming its subject-matter had been transferred to the first respondent, who had sold a portion to third parties. The Court noted that the Rules of the Court of Appeal contain no provision for the withdrawal of an application. Rather than accede to the withdrawal, it disposed of the matter by dismissal, leaving each party to bear its own costs. The Court expressed no view on the merits of the intended appeal or on the High Court's ruling.

p. 1
02

Effect of the subject-matter of an application having been disposed of pending the hearing

Holding

The transfer of the land to the first respondent, and the sale of a portion of it to third parties, meant the application had been overtaken by events and prompted the applicant to seek its withdrawal.

Reasoning

The application for an injunction and stay of proceedings in an intended appeal from the ruling of Osiemo, J dated 25 June 1999 was overtaken by events: the land which it concerned had already been transferred to the first respondent, Cecilia Nkatha Mbugua, who had sold a portion to third parties. This development, communicated to the Court by Mr Kariuki, was the stated basis for the application to withdraw and, ultimately, for the Court's dismissal of the application.

p. 1

Legal principles established

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  • Where the Rules of the Court of Appeal make no provision for the withdrawal of an application, an application which the applicant no longer wishes to pursue is dismissed rather than marked as withdrawn, with costs in the Court's discretion (here, no order as to costs).

Court orders

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  1. 1.The application is dismissed.
  2. 2.No order as to costs (each party to bear its own costs).

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 96 of 1998
Jurisdiction invoked
Not stated in the ruling. The application was governed by the Rules of this Court (the Court of Appeal Rules); the Court noted only that those Rules contain no provision for withdrawal of an application.

Relief refused

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Withdrawal of the application

The Rules of the Court contain no provision for the withdrawal of an application, so the Court disposed of the matter by dismissal instead of permitting a withdrawal.

p. 1

Injunction and stay of proceedings in the intended appeal

The application was never determined on its merits; after counsel sought to withdraw it, because the land forming its subject-matter had been transferred to the first respondent and a portion sold to third parties, the Court dismissed it.

p. 1

Costs

No order as to costs: 'The application is dismissed but we make no order as to costs.' Each party to bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There is no provision for withdrawal of an application in the Rules of this Court.
p. 1Absence of a withdrawal provision in the Court of Appeal Rules
The application is dismissed but we make no order as to costs.
p. 1Final orders - dismissal of the application and no order as to costs
Mr. Kariuki applies, now, to withdraw this application as the land, the subject-matter of this application, has already been transferred to the first respondent who has sold a portion thereof to third parties.
p. 1Subject-matter of the application overtaken by events

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "SAMSON M’IKUNYUA v CECILIA NKATHA MBUGUA & ANOTHER [2000] KECA 180 (KLR)", Case Analysis (2000). Civil Application No. NAI. 217 of 1999 (NYR.17/99). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/180/eng@2000-10-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.