Reuben Oyamo Ondiek & another v Joash Odhiambo Orangi [2017] KEELC 46 (KLR)
The bottom line
#Kenya's High Court let land dispute parties withdraw their injunction application to try settlement talks, while freezing the property's current state until the case ends.
What this practically means
#Executive summary
#Key legal issues
#Withdrawal of an interlocutory application by consent
The court allowed the Plaintiffs' oral application to withdraw their Notice of Motion seeking conservatory orders, the Respondent having raised no objection
The Plaintiffs' counsel applied to withdraw the motion, indicating an intention to pursue alternative dispute resolution. The Defendant's counsel raised no objection and also favoured ADR. The court found the prayer merited and allowed it, guided by the constitutional principle under Article 159(2)(c) that encourages alternative dispute resolution, and the authority in Council of Governors v Senate on a party's liberty to withdraw a matter.
Costs upon withdrawal
No order as to costs was made, costs being discretionary and following the event under the proviso to Section 27 of the Civil Procedure Act
The court invoked the proviso to Section 27 of the Civil Procedure Act and the Rai v Rai authority on costs following the event. Since the application was withdrawn and the Respondent did not oppose the withdrawal, the court exercised its discretion to make no order as to costs rather than awarding costs to the Respondent.
Preservation of the status quo pending trial
The court directed that the existing status quo on the suit property be maintained until the suit is heard and determined
Although the motion seeking conservatory orders was withdrawn, the court proprio motu directed that the existing status quo on L.R. No. Suna East Wasweta 1/20368(3) be observed and maintained until the suit is heard and determined, thereby preserving the position of the parties pending full trial of the substantive dispute.
Legal principles established
#- A party has the liberty to withdraw a matter before the court, consistent with the constitutional encouragement of alternative dispute resolution under Article 159(2)(c) of the Constitution of Kenya 2010
- Costs are within the discretion of the court and follow the event, per the proviso to Section 27 of the Civil Procedure Act
Court orders
#- 1.Leave granted to the Plaintiffs to withdraw the Notice of Motion dated 1/2/2017
- 2.No order as to costs on the withdrawal of the Notice of Motion
- 3.Existing status quo on L.R. No. Suna East Wasweta 1/20368(3) to be observed and maintained until the suit is heard and determined
- 4.Parties urged to embrace Alternative Dispute Resolution and at liberty to move the court appropriately
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40 and 51 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuben Oyamo Ondiek & another v Joash Odhiambo Orangi [2017] KEELC 46 (KLR)", Case Analysis (2017). Notice of Motion dated 1/2/2017 (suit re L.R. No. Suna East Wasweta 1/20368(3)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/46/eng@2017-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.