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ELCOtherFast Track Plaint filed 03.02.2015 (case number not stated in judgment)· [2017] KEELC 136 (KLR)

Fred Atieno Genga v Ben Wasonga Genga & another [2017] KEELC 136 (KLR)

Environment and Land Court
13 March 2017
GOG. M. A. Ongondo
249 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner's lawsuit over a Migori plot collapsed at the courtroom door — the plaintiff withdrew the case and was ordered to pay the defendant's legal costs.

What this practically means

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Executive summary

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The Plaintiff/Respondent filed a Fast Track plaint on 03.02.2015 in the Environment and Land Court at Migori seeking a restraint order in respect of Plot No. J7 KOLAL Adjudication Section together with costs, initially suing in person and later through Kwanga Mboya and Company Advocates. The Defendant/Applicant, Ben Wasonga Genga, represented by Roch Odhiambo Advocate, denied the claim in a defence dated 3/4/2015 and prayed for dismissal of the suit. The Defendant filed two Notices of Motion: one dated 24/10/2016 seeking striking out of the plaint, and another dated 14/2/2017 seeking a temporary injunction against the Plaintiff, substitution of Fred Atieno Genga as Defendant, and an order directing the 2nd Respondent to amend the plaint. Both applications were fixed for hearing on 13.03.2017. At the hearing, Mr. Kisia for the Plaintiff applied to withdraw the suit with costs to the Defendant, and Mr. Roch Odhiambo, who had sought striking out of the plaint (citing Nyagah v Nyamu & Anor), raised no objection. The court, Ongondo J, found the withdrawal application merited and allowed it, with costs to the Defendant/Applicant. No orders were made on the Defendant's pending motions. The judgment was delivered, signed and dated at Migori on 13 March 2017.

Key legal issues

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Whether the suit should be permitted to be withdrawn on the day fixed for hearing of the Defendant's applications to strike out the plaint and for other relief

Holding

The court allowed the withdrawal of the suit with costs to the Defendant, there being no objection from the Defendant's counsel

Reasoning

Counsel for the Plaintiff applied to withdraw the suit with costs to the Defendant. The Defendant's counsel, who had pending applications to strike out the plaint and for a temporary injunction, substitution and amendment, raised no objection to the withdrawal. The court found the withdrawal application merited and allowed it, awarding costs to the Defendant as sought. The other pending applications were thus rendered unnecessary and no orders were made on them.

p. 2

Legal principles established

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  • An application by a plaintiff to withdraw a suit, made in open court and unopposed by the defendant, may be allowed by the court with costs to the defendant

Court orders

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  1. 1.The Plaintiff/Respondent's application to withdraw the suit is allowed
  2. 2.Costs of the suit awarded to the Defendant/Applicant as conceded in counsel's withdrawal application

Authorities

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Cases cited (1)

  • Nyagah Vs. Nyamu & Anor
    1976-80 (KLR 8a)
Jurisdiction invoked
Original civil jurisdiction over the suit (plaint seeking restraint order over Plot No. J7 KOLAL Adjudication Section); no specific constitutional or statutory provision cited

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, "Fred Atieno Genga v Ben Wasonga Genga & another [2017] KEELC 136 (KLR)", Case Analysis (2017). Fast Track Plaint filed 03.02.2015 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/136/eng@2017-03-13

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