Daudi Kiptugen v Commissioner of Lands & 4 Others [2015] KECA 13 (KLR)

Court of Appeal of Kenya

27 May 2015

DMD. K. Musinga

342 words in judgment

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The bottom line

Kenya's Court of Appeal let a landowner withdraw his stay-of-execution application and appeal notice, but made him pay the respondents' costs.

What this practically means

Executive summary

This is a short in-chambers ruling of the Court of Appeal at Eldoret delivered by D. K. Musinga, JA, on 27th May 2015 in Civil Application No. NAI 247 of 2013. The application was a single judge's application for stay of execution of orders issued on 19th August 2013 by S. Munyao, J, pending the hearing and determination of an appeal against the learned judge's ruling delivered on 23rd August 2013 in ELC No. 787 of 2012 at Eldoret. When the matter came up for hearing, Mr Korir, counsel for the applicant Daudi Kiptugen, sought leave to withdraw the application dated 6th September 2013, together with a notice of appeal filed on 4th September 2013. He acknowledged the application had not been served for the hearing date, although a notice of withdrawal had been filed and served the previous day. Mr Mbeja, holding brief for the respondents' advocates, raised no objection to the withdrawal but sought costs, conceding the respondents had at least been served with a hearing notice. The Judge considered the brief submissions, granted leave to withdraw both the application and the notice of appeal on the ground that the application had been overtaken by events, and marked the application withdrawn under rule 52 of the Court of Appeal Rules. The applicant was ordered to bear the costs of the application. No substantive issue on stay of execution or the merits of the intended appeal was determined, and the underlying ruling in ELC No. 787 of 2012 was not disturbed.

Key legal issues

Withdrawal of a pending application and notice of appeal

Holding

The Court granted leave to withdraw both the application for stay of execution and the notice of appeal, the application having been overtaken by events, and marked it withdrawn under rule 52 of the Court of Appeal Rules.

Reasoning

Counsel for the applicant sought leave to withdraw the application and the accompanying notice of appeal. Counsel for the respondent raised no objection, though he sought costs. The single Judge noted that the application had not been served for the hearing date and that it had been overtaken by events, granting leave to withdraw and placing costs on the applicant.

p. 2

Legal principles established

An application overtaken by events may be withdrawn with leave of the Court, and a party withdrawing an application without having served it may be condemned to bear its costs.

Court orders

1.Leave granted to the applicant to withdraw the application dated 6th September 2013
2.Leave granted to the applicant to withdraw the notice of appeal filed on 4th September 2013
3.The application marked as withdrawn under rule 52 of the Court of Appeal Rules
4.The applicant shall bear the costs of the application

Authorities

Legislation

Court of Appeal Rulesrule 52

On appeal from: High Court of Kenya; ELC No. 787 of 2012
Jurisdiction invoked: Court of Appeal Rules (application for stay of execution under the Court's Rules; withdrawal under rule 52)

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (1)

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

Mbugua v Kerre & 2 others (Civil Appeal E121 of 2023) [2026] KECA 638 (KLR)
[2026] KECA 638 (KLR)25 Mar 2026

Cite this brief

Caselaw, "Daudi Kiptugen v Commissioner of Lands & 4 Others [2015] KECA 13 (KLR)", Case Analysis (2015). Civil Application No. NAI 247 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/13/eng@2015-05-27

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