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Court of AppealOtherCivil Application (Kisumu) - Motion dated 18th July 2025 (application dated 11th July 2025)· [2026] KECA 617 (KLR)

Mohammed Juma Ponda (citor) v Watenya Wa Murambi Ramadhan (deceased)

Court of Appeal of Kenya
13 March 2026
522 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 ruled you cannot win court orders through arguments alone; you must file a formal Notice of Motion for each relief you seek.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu delivered by H. A. Omondi, JA, arising from an interlocutory application in a pending appeal. The appellant, Mohammed Juma Ponda, had applied on 11th July 2025 to substitute the deceased respondent, Ramadhan Watenya, with his legal representative, Suela Naliaka Murambi, who held a Limited Grant of Letters of Administration Ad Litem issued on 21st May 2025 in Bungoma High Court Succession Misc. Cause No. E007 of 2025. The respondent died on 19th March 2024, causing the appeal to abate under Rule 99(3) of the Court of Appeal Rules. In written submissions dated 3rd October 2025, counsel Mr. Donald Bulimo sought leave to withdraw the Notice of Motion dated 18th July 2025, acknowledging it was premature since no revival of the abated appeal had first been sought, and simultaneously argued for extension of time and revival of the appeal. The court held that counsel could not seek extension of time and revival merely through submissions absent a formal Notice of Motion, and observed that withdrawing the only pending motion - which carried the substitution prayer - would leave no basis for any substitution order. Exercising inherent jurisdiction under Rule 42 of the Court of Appeal Rules and Section 3A of the Civil Procedure Act, the court deemed the Motion of 18th July 2025 withdrawn with no orders on costs. There was no response to the application and no substantive decision on substitution, revival or extension of time; those reliefs remain for a properly framed application.

Key legal issues

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01

Whether withdrawal of an application may be effected on counsel's request and inherent jurisdiction

Holding

Yes - the court has inherent jurisdiction under Rule 42 of the Court of Appeal Rules and Section 3A of the Civil Procedure Act to allow counsel to mark an application withdrawn in the interest of justice.

Reasoning

The applicant acknowledged that the Motion of 18th July 2025, which sought only substitution, was premature because revival of the abated appeal had not first been sought. Counsel orally sought leave to withdraw it. The court, exercising its inherent jurisdiction in the interest of justice, deemed the Motion withdrawn with no orders as to costs.

p. 2
02

Whether the court could grant extension of time, revival of the abated appeal and substitution without a formal motion

Holding

No - such substantive reliefs require a formal Notice of Motion and cannot be granted on the basis of submissions.

Reasoning

Counsel addressed the court on extension of time and revival of the abated appeal in written submissions, but filed no corresponding Notice of Motion. The court held that submissions cannot substitute for a formal application, and that withdrawing the only pending motion (which carried a substitution prayer) left nothing on which orders of substitution could rest.

p. 2

Legal principles established

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  • Applications must be brought by formal Notice of Motion; a party cannot obtain substantive orders through written submissions alone.

Court orders

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  1. 1.The Notice of Motion dated 18th July 2025 is marked as withdrawn on application by counsel for the applicant
  2. 2.No orders on costs
On appeal from
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null
Jurisdiction invoked
Rule 42 of the Court of Appeal Rules and Section 3A of the Civil Procedure Act (inherent jurisdiction to allow withdrawal of an application)

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, "Mohammed Juma Ponda (citor) v Watenya Wa Murambi Ramadhan (deceased)", Case Analysis (2026). Civil Application (Kisumu) - Motion dated 18th July 2025 (application dated 11th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/617/eng@2026-03-13

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