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Court of AppealOtherCivil Application No. NAI 298 of 2013· [2015] KECA 21 (KLR)

Benson Allan Musonga & another v Jotham Mukoro Mono [2015] KECA 21 (KLR)

Court of Appeal of Kenya
25 June 2015
David Kenani MaragaDaniel Kiyinga MaragaDMDuncan Kiplagat MusingaSKStephen Gatembu Kairu
237 words in judgment
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The bottom line

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Two sides in a Kenyan appeal dispute agreed to drop the case by consent, and the Court of Appeal let the underlying High Court decision stand without costs.

What this practically means

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Executive summary

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This was an application to strike out a notice of appeal lodged by the appellants, Benson Allan Musonga and Roseline Mwikali Karanja, against a decision of the High Court of Kenya at Kitale (Obaga, J.) in HCCC No. 121 of 2012, dated 29th July 2013. The application was brought under rule 84 of the Court's rules and came before the Court of Appeal at Eldoret, coram Maraga, Musinga and Gatembu, JJ.A. Before the application was heard on the merits, counsel for the respondent, Mr Mokua, indicated that he wished to withdraw the notice of appeal that was the subject of the strike-out application. Counsel for the applicants, Mr Kiarie, raised no objection and consented to the withdrawal of the application dated 24th October 2013. The Court accordingly marked the appellants' notice of appeal dated 26th September 2013 as withdrawn under rule 83 of the Rules of the Court, and marked the application dated 24th October 2013 as withdrawn under rule 52. In light of the compromise exhibited by both parties, the Court ordered that each party bear their own costs of the application. The order is dated 25th June 2015. No substantive issues of law were determined, the file was disposed of entirely by consent, and the judgment cites no previous authorities and establishes no new precedent. The effect is that no appeal lies from the High Court decision, which accordingly stands undisturbed.

Key legal issues

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01

Withdrawal of a notice of appeal under rule 83 and of the application under rule 52 by consent

Holding

The Court allowed the notice of appeal and the application to be withdrawn by consent, with each party bearing their own costs.

Reasoning

Counsel for the respondent/applicant (Mr Mokua) sought to withdraw the notice of appeal that was the subject of the strike-out application under rule 84. Counsel for the applicants (Mr Kiarie) raised no objection and consented to the withdrawal of the application dated 24th October 2013. On that consensual basis, the Court marked both the notice of appeal and the application as withdrawn under rules 83 and 52 respectively and made a no-costs order reflecting the compromise.

p. 1

Legal principles established

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  • With the consent of counsel, a notice of appeal may be marked as withdrawn under rule 83 and an application under rule 52 of the Court of Appeal Rules, and where both sides concede, each party may be ordered to bear their own costs

Court orders

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  1. 1.The appellant's notice of appeal dated 26th September 2013 is marked as withdrawn under rule 83 of the Rules of the Court
  2. 2.The appellant's application dated 24th October 2013 is marked as withdrawn under rule 52 of the Rules of the Court
  3. 3.Each party shall bear their own costs of the application

Authorities

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Legislation

  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 83
  • Court of Appeal Rulesrule 52
On appeal from
High Court of Kenya at Kitale
HCCC No. 121 of 2012
Jurisdiction invoked
An application to strike out a notice of appeal under rule 84 of the Court of Appeal Rules; the notice of appeal itself withdrawn under rule 83 and the application under rule 52 of the Rules of the Court

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, "Benson Allan Musonga & another v Jotham Mukoro Mono [2015] KECA 21 (KLR)", Case Analysis (2015). Civil Application No. NAI 298 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/21/eng@2015-06-25

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