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Court of AppealOtherCivil Application No. 19 of 2015 (UR 15/2015)· [2015] KECA 37 (KLR)

Wellington Lusweti Barasa & 74 others v Lands Limited & another [2015] KECA 37 (KLR)

Court of Appeal of Kenya
24 June 2015
David Kenani MaragaD. K. MaragaDMD. K. MusingaSKS. Gatembu Kairu
273 words in judgment
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The bottom line

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The Court of Appeal allowed 75 applicants to withdraw their Supreme Court appeal application, but made them pay the respondents' costs because they gave no warning.

What this practically means

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Executive summary

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This was a short interlocutory order of the Court of Appeal at Eldoret in a contemplated appeal to the Supreme Court. The applicants, Wellington Lusweti Barasa and 74 others, had filed a notice of application dated 11th May, 2015 seeking leave to appeal to the Supreme Court from the ruling of the Court of Appeal (Maraga, Musinga and Gatembu Kairu, JJ.A) dated 8th May, 2015 in Civil Application No. 14 of 2015 between the same parties. At the hearing, counsel for the applicants sought leave to withdraw the application, proposing that there be no order as to costs. Counsel for the two respondents, Lands Limited and Kibogy Properties Limited, raised no objection to the withdrawal but pressed for costs. They explained that they had already filed their response papers and had prepared for the hearing, having received no notice of the applicants' intention to withdraw. The court, coram Maraga, Musinga and Gatembu Kairu, JJ.A, granted leave to withdraw the application as prayed and marked the application dated 11th May, 2015 as withdrawn under rule 52 of the Court of Appeal Rules. However, because the respondents had been put to the expense of filing papers and preparing for a hearing of which they were given no notice of withdrawal, the court departed from the usual 'no order as to costs' on withdrawal and awarded the respondents the costs of the withdrawn application. The order was dated 24th June, 2015 at Eldoret and was signed by all three judges. No substantive issues were determined and no precedent was laid down beyond the costs principle.

Key legal issues

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01

Whether withdrawal of an application without notice to the respondents justifies an award of costs to the respondents

Holding

The court granted leave to withdraw but awarded costs to the respondents because they had filed response papers and prepared for the hearing without any notice of the intended withdrawal.

Reasoning

Counsel for the applicants sought to withdraw the application with no order as to costs. The respondents' counsel raised no objection to the withdrawal but asked for costs, explaining that they had filed their response papers and prepared for the hearing, and had received no notice of the intention to withdraw. Taking account of that prejudice and wasted preparation, the court permitted the withdrawal but nevertheless awarded the respondents their costs of the withdrawn application.

p. 1

Legal principles established

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  • An applicant who withdraws an application without notice to respondents who have already filed papers and prepared for the hearing may be deprived of the usual 'no order as to costs' and the respondents awarded costs of the withdrawn application.

Court orders

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  1. 1.Leave granted to the applicants to withdraw the application dated 11th May, 2015 as prayed
  2. 2.The application dated 11th May, 2015 marked as withdrawn under rule 52 of the Court of Appeal Rules
  3. 3.The respondents awarded costs of the withdrawn application

Authorities

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Legislation

  • Court of Appeal RulesRule 52
On appeal from
Court of Appeal at Eldoret
Civil Application No. 14 of 2015
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to permit withdrawal of an application, exercised under rule 52 of the Court of Appeal Rules; the application concerned leave to appeal to the Supreme Court of Kenya

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, "Wellington Lusweti Barasa & 74 others v Lands Limited & another [2015] KECA 37 (KLR)", Case Analysis (2015). Civil Application No. 19 of 2015 (UR 15/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/37/eng@2015-06-24

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