SAMSON M’IKUNYUA v CECILIA NKATHA MBUGUA & ANOTHER [2000] KECA 180 (KLR)
The bottom line
#Kenya's Court of Appeal ruled it cannot allow an application to be withdrawn because its rules lack a withdrawal provision, so unwanted applications are simply dismissed.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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application could be withdrawn, there being no provision for withdrawal of an application in the Rules of this Court.
- 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
#Whether an application may be withdrawn where the Rules of the Court make no provision for withdrawal
No. The Court declined to treat the application as withdrawn and instead dismissed it, making no order as to costs.
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.
Effect of the subject-matter of an application having been disposed of pending the hearing
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.
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.
Legal principles established
#- 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of an application, an application which the applicant no longer wishes to pursue is dismissed rather than marked as withdrawn, with costs in the Court's discretion (here, no order as to costs).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
#- 1.The application is dismissed.
- 2.No order as to costs (each party to bear its own costs).
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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.
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.
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
#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.
The application is dismissed but we make 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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.