Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment· [2018] KEELC 3454 (KLR)

Caren Atieno Agida & another v Elisha Jabuya Olweru & another [2018] KEELC 3454 (KLR)

High Court of Kenya
1 February 2018
GOG. M. A. Ongondo
579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

The High Court confirmed that anyone can withdraw their own court application at any time, and here the land injunction was withdrawn with no costs awarded.

What this practically means

#

Executive summary

#
This was an interlocutory ruling delivered at Migori by G.M.A. Ongondo J on 1 February 2018. By a notice of motion dated 11 May 2017, the defendant/applicant, represented by Mr Kirui Advocate, sought a temporary injunction restraining the 1st and 2nd respondents and an interested party from trespassing onto, fencing, destroying property on or otherwise interfering with land parcel No. KANYADA/KATIENO/KATUMA/A/2246 pending hearing of the application and of the main suit, together with costs. The application was grounded on the applicant's claim that his deceased father, Olweru Oketa, was the legal proprietor of the suit land following what the applicant alleged was a fraudulent and secret succession and sub-division of parcel KANYADA/KOTIENO/KATUMA A/845 by the 2nd respondent; that both his deceased parents were buried on the land; that he had been in occupation for over 50 years; and that the 2nd respondent had maliciously sold the whole parcel to the 1st respondent and allotted 2 acres to the interested party as fees. When the application came up, the applicant's own counsel applied to have it marked as abandoned or withdrawn. The request was unopposed. Relying on Salat v IEBC & 7 others (2014) KLR-SCK, the court applied the principle that a party's right to withdraw a matter cannot be taken away, and marked the application withdrawn with no orders as to costs. The court granted a final chance for compliance with Order 11 of the Civil Procedure Rules, 2010, fixed mention for pre-trial directions on 14 March 2018, and directed the defendant's counsel to serve the plaintiffs' counsel. The main suit continues.

Key legal issues

#
01

Whether a party may withdraw an interlocutory application before determination

Holding

Yes; the right to withdraw cannot be taken away by the court. The unopposed request by the applicant's counsel to mark the application withdrawn was granted with no orders as to costs.

Reasoning

Counsel for the defendant/applicant applied to have the application marked as abandoned or withdrawn. The request was not opposed and the court found it merited. Relying on Salat v IEBC & 7 others (2014) KLR-SCK, the court held that a party's right to withdraw a matter before the court cannot be taken away, and accordingly marked the injunction application withdrawn without costs.

p. 2

Legal principles established

#
  • A party retains an unfettered right to withdraw a matter before the court, and the court cannot bar that withdrawal

Court orders

#
  1. 1.The application dated 11/5/2017 marked as withdrawn with no orders as to costs
  2. 2.Final chance granted to the parties to comply with Order 11 Civil Procedure Rules, 2010
  3. 3.Mention for pre-trial directions on 14/3/2018
  4. 4.The defendant's counsel to serve the plaintiffs' counsel accordingly

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 11

Cases cited (1)

  • Salat –v- IEBC & 7 other
    (2014) KLR-SCK
Jurisdiction invoked
Inherent powers of the court under the Civil Procedure Rules, 2010 (Order 11 directions); no specific constitutional provision cited

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Caren Atieno Agida & another v Elisha Jabuya Olweru & another [2018] KEELC 3454 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3454/eng@2018-02-01

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