Invest and Grow Sacco Limited v Amudavi

Court of Appeal

23 September 2022

DMDK Musinga

186 words in judgment

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AI-assisted case brief

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The bottom line

A Sacco withdrew its late-appeal application at the Court of Appeal after a jurisdictional challenge, and was ordered to pay the other side's costs.

What this practically means

Executive summary

This is a brief single-judge order of the Court of Appeal at Nairobi, delivered by DK Musinga, JA (P), on September 23, 2022, in Civil Application E283 of 2022. Invest and Grow Sacco Limited had filed an application dated August 3, 2022 seeking extension of time to file an appeal out of time against Wycliff Shivachi Amudavi. The respondent filed a notice of preliminary objection contending that the Court of Appeal lacked jurisdiction to hear and determine the application by virtue of section 81 of the Co-operative Societies Act, which governs appeals from co-operative tribunals. Prompted by that objection, the applicant by a request dated September 7, 2022 sought leave to withdraw its application. The court acceded to the request and marked the application as withdrawn with costs to the respondent. The order made no determination on the merits of the extension of time and did not rule on the jurisdictional objection, which therefore remains an open question. The decision is procedural, binds no lower court on any substantive proposition, and its only operative effect is the withdrawal of the application and the award of costs to the respondent.

Key legal issues

Withdrawal of an application for extension of time

Holding

The application was marked as withdrawn with costs to the respondent at the applicant's own request, prompted by a preliminary objection questioning the court's jurisdiction under section 81 of the Co-operative Societies Act.

Reasoning

The applicant itself requested withdrawal by a request dated September 7, 2022, after the respondent filed a notice of preliminary objection contending that the Court lacked jurisdiction over the application by virtue of section 81 of the Co-operative Societies Act. The single judge acceded to that request and marked the application withdrawn, awarding costs to the respondent. No substantive determination of the jurisdictional question or the extension-of-time merits was made.

p. 1

Legal principles established

An applicant may withdraw a pending application before the Court of Appeal, and the court may mark it withdrawn with costs to the opposing party, particularly where a preliminary objection on jurisdiction is pending.

Court orders

1.The applicant's application dated August 3, 2022 for extension of time to file an appeal out of time is marked as withdrawn with costs to the respondent, pursuant to the applicant's request dated September 7, 2022

Authorities

Legislation

Co-operative Societies Actsection 81

Jurisdiction invoked: Inherent appellate jurisdiction of the Court of Appeal over interlocutory applications; the respondent invoked section 81 of the Co-operative Societies Act to challenge jurisdiction

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Invest and Grow Sacco Limited v Amudavi", Case Analysis (2022). Civil Application E283 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1000/eng@2022-09-23

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