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Court of AppealOtherCivil Appeal No. 141 of 2003· [2006] KECA 1 (KLR)

Aden Sugow Ahmed v Elias Barre Shill & 2 others

Court of Appeal of Kenya
27 April 2006
SBS.E.O BosirePWP.N. WakiWDW.S. Deverell
192 words in judgment
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The bottom line

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A Kenyan election appeal was withdrawn in 2006, the High Court decision stands, and the withdrawing appellant must pay the respondents' costs.

What this practically means

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Executive summary

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This short record is not a substantive appellate judgment but a withdrawal order disposing of Civil Appeal No. 141 of 2003 without any hearing on the merits. The appeal had been brought by Aden Sugow Ahmed against Elias Barre Shill, Jama Hassan Ginni and the Electoral Commission of Kenya, arising out of a ruling and order made by Mary Ang'awa J on 27 May 2003 in Nairobi High Court Election Petition No. 2 of 2003. When the matter came before the Court of Appeal at Nairobi, constituted by Bosire, Waki and Deverell JJ.A, the appellant, having reconsidered his position with regard to the appeal, informally applied for leave to withdraw it. Counsel for the respondents did not oppose the withdrawal but prayed that the court grant them the costs of the appeal. Having considered the informal application, the court granted it and ordered that the appeal be and is hereby withdrawn under rule 93(5) of the Court of Appeal Rules. It further awarded the costs of the appeal to the respondents, to be agreed, failing agreement, to be taxed. No question of law or fact arising from the election petition or from the ruling below was identified, argued or determined, no authority was cited, and no reasons were given beyond the court's disposal of the withdrawal application. The decision of the High Court therefore stands entirely undisturbed. The only operative effects of this order are the termination of the appeal and the costs award in favour of the respondents. The order was made at Nairobi on 27 April 2006 and bears the signatures of all three Judges of Appeal, with no separate opinion.

Key legal issues

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01

Whether leave should be granted to withdraw the appeal on an informal, unopposed application

Holding

Leave was granted and the appeal was formally withdrawn under rule 93(5) of the Court of Appeal Rules.

Reasoning

The court records that the appellant, having reconsidered his position with regard to the appeal, informally applied for leave to withdraw it. Counsel for the respondents did not oppose the withdrawal, but prayed for the costs of the appeal. The court considered the informal application and granted it, and made a formal order of withdrawal under rule 93(5) of the Court of Appeal Rules.

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02

Whether the respondents should receive the costs of the withdrawn appeal

Holding

The costs of the appeal were awarded to the respondents, to be agreed between the parties and, failing agreement, to be taxed.

Reasoning

Counsel for the respondents did not oppose the withdrawal of the appeal but prayed that the court grant them the costs of the appeal. Having considered the informal application for withdrawal together with that unopposed prayer, the court awarded the costs of the appeal to the respondents, to be agreed and, failing agreement, to be taxed, thus disposing of the appeal entirely.

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Legal principles established

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    Court orders

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    1. 1.Leave granted to the appellant to withdraw the appeal; the informal application was granted
    2. 2.The appeal withdrawn under rule 93(5) of the Court of Appeal Rules
    3. 3.The costs of the appeal awarded to the Respondents, to be agreed, failing agreement, to be taxed
    On appeal from
    High Court of Kenya at Nairobi
    H.C. Election Petition No. 2 of 2003
    Jurisdiction invoked
    Not expressly stated in the order; it is an appeal to the Court of Appeal from a ruling in a High Court election petition, and the only provision invoked is rule 93(5) of the Court of Appeal Rules, under which the appeal was withdrawn

    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, "Aden Sugow Ahmed v Elias Barre Shill & 2 others", Case Analysis (2006). Civil Appeal No. 141 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/1/eng@2006-04-27

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