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Court of AppealPartially AllowedCivil Appeal No. 33 of 2013· [2014] KECA 518 (KLR)

Ntarangwi Ikiara v Commissioner Of Lands & 2 Others [2014] KECA 518 (KLR)

Court of Appeal
23 June 2014
1,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you can withdraw your own lawsuit at any time, but you must pay the other side's costs, and any existing orders end.

What this practically means

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Executive summary

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The appellant had filed two consolidated suits in the Meru High Court: HCCC No. 153 of 1995 (O.S.) against the Commissioner of Lands and Municipal Council of Meru, challenging the acquisition and allocation of Plot No. Ntima/Igoki/2224, and a second suit seeking eviction of Jackson Munyua Mutuera from that plot. During the hearing the appellant sought to discontinue HCCC No. 153 of 1995 under Order 25 Rule 2(2) of the Civil Procedure Rules. The respondents objected, and Lady Justice Mary Kasango, in a ruling dated 29th September 2011, struck out the notice of discontinuance, reasoning principally that subsisting status quo orders would survive discontinuance to the plaintiff's perpetual benefit and that the defendants might have claims they could not litigate elsewhere. The appellant appealed. The Court of Appeal held, first, that grounds attacking the ruling of 28th May 2010 were incompetent because no Notice of Appeal had been filed in respect of it. On the merits, the Court held the learned judge erred in law: subsisting orders in a suit collapse when the suit is withdrawn or discontinued; a defendant with no counterclaim cannot insist on the plaintiff's suit remaining alive as a forum for a hypothetical claim, being free to file its own suit; and the respondents demonstrated no prejudice, costs being an adequate recompense. The Court declared the memorandum of appeal and grounds relating to the 2010 ruling incompetent, ordered that HCCC No. 153 of 1995 be withdrawn in its entirety against the respondents, directed the appellant to pay the respondents' costs of that suit, and made no order as to costs of the appeal. The appeal therefore partially succeeded.

Key legal issues

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01

Effect of withdrawal or discontinuance of a suit on subsisting interlocutory (status quo) orders

Holding

The learned judge erred in law in holding that a status quo order would continue to subsist after discontinuance of the suit in which it was made; such orders collapse upon discontinuance.

Reasoning

The High Court had refused discontinuance principally because status quo orders over the suit property were still subsisting and would, if the suit were discontinued, remain in the plaintiff's favour perpetually. The Court of Appeal held this was an error of law, restating the trite position that orders made in a suit fall away when the suit is withdrawn or discontinued. The judge therefore erred in striking out the notice of discontinuance on that basis.

p. 2
02

Whether a defendant without a counterclaim can resist discontinuance to preserve a forum for a possible claim

Holding

The judge erred in holding that the 1st and 2nd respondents could possibly have a claim they could not litigate if not parties to the plaintiff's suit.

Reasoning

The record showed the Commissioner of Lands had no counterclaim or other relief asserted in the suit. If the government had a claim over the property, nothing prevented it from filing its own case. It is therefore an error of law to require a plaintiff's suit to remain alive so a defendant without a counterclaim can ventilate a hypothetical claim in it.

p. 3
03

Right to discontinue a suit and the remedy of costs

Holding

A plaintiff is entitled to withdraw or discontinue a suit subject to paying the other party's costs; costs are an adequate recompense where no prejudice is demonstrated.

Reasoning

The respondents had not demonstrated what prejudice they would suffer if HCCC No. 153 of 1995 were withdrawn. The Court held that the entitlement to discontinue is subject to payment of costs, and in the circumstances an award of costs was sufficient to protect the respondents, making refusal of discontinuance unjustified.

p. 3
04

Competence of appeal grounds concerning a ruling with no Notice of Appeal

Holding

Grounds attacking the ruling of 28th May, 2010 were declared incompetent because no Notice of Appeal was filed in respect of that ruling.

Reasoning

The memorandum of appeal sought to challenge both the rulings of 28th May, 2010 and 29th September, 2011. On examination of the record, the Court established there was no Notice of Appeal relating to the 2010 ruling, and therefore the appellant could not argue or challenge that ruling in the present appeal.

p. 2

Legal principles established

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  • When a suit is withdrawn or discontinued, any subsisting interlocutory orders made in that suit, including status quo orders, collapse and come to an end with the withdrawal or discontinuance.
  • A plaintiff is entitled to withdraw or discontinue a suit he or she has filed, subject to payment of costs to the other party, absent demonstrated prejudice.
  • A party without a counterclaim in a suit cannot complain that discontinuance of that suit deprives it of a forum; it may file its own separate suit to ventilate any claim.
  • An appeal cannot canvass a decision against which no Notice of Appeal was filed; grounds relating to such a decision are incompetent.

Court orders

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  1. 1.The memorandum of appeal and grounds of appeal relating to the ruling delivered on 28th May, 2010 are declared incompetent
  2. 2.High Court Civil Case No. 153 of 1995 is withdrawn in its entirety against the respondents
  3. 3.The appellant shall pay the costs of HCCC No. 153 of 1995 to the respondents
  4. 4.There shall be no order as to costs in this appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 2 (2)
On appeal from
High Court of Kenya at Meru
HCCC No. 153 of 1995 (O.S.)
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution read with the Court of Appeal's appellate jurisdiction (provision not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ntarangwi Ikiara v Commissioner Of Lands & 2 Others [2014] KECA 518 (KLR)", Case Analysis (2014). Civil Appeal No. 33 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/518/eng@2014-06-23

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