James Thendu Gitau & another v John Nginga Magecha [2020] KEELC 156 (KLR)
The bottom line
#A Kenyan court set aside its own judgment because it had been delivered after the underlying suit was withdrawn, but refused to recognise the withdrawn appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal had been properly withdrawn
The appeal had not been properly withdrawn because it had been set down for hearing and was pending judgment, so leave of the Court was required before withdrawal; therefore the appeal was not discontinued.
Order 25 Rule 1 confers an absolute right of withdrawal only before the suit is set down for hearing. Citing Beijing Industrial Designing & Research Institute v Lagoon Development Ltd, the Court outlined three scenarios: before setting down (absolute right), after setting down with consent of all parties, or after setting down without consent (leave of Court required on just terms). Since the appeal here was pending judgment, withdrawal without leave was ineffective.
Whether the lower Court suit (ELC 8 of 2018) had been validly withdrawn
The lower Court suit was automatically withdrawn upon the filing of the Notice of Withdrawal on 4th May 2020, as it was still at a preliminary stage and had not been set down for hearing.
Following Kofinaf Company Limited v Nahashon Ngige Nyagah, the right to discontinue a suit not yet set down for hearing under Order 25 Rule 1 is absolute, takes effect upon filing of the Notice, and requires no leave of Court or endorsement. Only an interim application had been heard in the subordinate suit, so the withdrawal was effective.
Whether the Judgment of 4th June 2020 should be reviewed and set aside
Yes - the judgment granted orders pending the hearing and determination of a non-existent suit, amounting to an error apparent on the face of the record justifying review under Section 80 of the Civil Procedure Act and Order 45 Rule 1.
The Court's power to review its own decision must be exercised within the framework of Section 80 of the Civil Procedure Act and Order 45 Rule 1. Applying Nyamogo & Nyamogo v Kogo, an error apparent on the face of the record is one where a substantial point of law stares one in the face and there could be no two opinions. Because the Court was unaware of the withdrawal of the lower Court suit when delivering judgment, the orders had no anchor and review was proper.
Legal principles established
#- A plaintiff's right to discontinue a suit not yet set down for hearing under Order 25 Rule 1 is absolute and takes effect upon filing of the Notice of Withdrawal without leave of Court
- Where an appeal has been set down for hearing and is pending judgment, the appellant requires leave of Court to withdraw it
- A judgment granting orders pending the hearing and determination of a suit that has already been withdrawn is an error apparent on the face of the record warranting review
Court orders
#- 1.The Notice of Motion Application dated 15th June 2020 is allowed entirely with no orders to costs
- 2.The Judgment of the Court dated, signed and delivered on 4th June 2020 is reviewed and set aside
- 3.The application is allowed with no orders to costs
- Jurisdiction invoked
- Inherent power to review its own judgment under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Thendu Gitau & another v John Nginga Magecha [2020] KEELC 156 (KLR)", Case Analysis (2020). Notice of Motion dated 15th June 2020 (in Appeal arising from ELC No. 8 of 2018, Gatundu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/156/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.