Republic v Export Processing Zones Authority & 2 others; London Distillers (K) Ltd & 3 others (Interested Parties) Ex parte Erdermann Property Limited [2020] KEELC 1228 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant could withdraw its application for leave to institute judicial review proceedings as of right
Generally yes, where the matter has not been set down for hearing, but the right is not absolute where contempt proceedings are pending against the withdrawing party
The court accepted the general rule from John Ochanda and Salat that a party may withdraw proceedings as of right subject to costs, and Order 25 Rule 1 of the Civil Procedure Rules. However, following the Beijing Industrial case, where an application for committal for contempt against the party is pending, the public interest in upholding the supremacy of the law outweighs the party's private right to withdraw. The pending contempt application meant the suit could not be terminated at the Applicant's instance alone.
Effect of pending contempt proceedings on the right to withdraw
Withdrawal to defeat pending contempt proceedings is an abuse of court process and cannot be permitted
Relying on the Court of Appeal in Beijing Industrial Designing & Researching Institute v Lagoon Development Limited, the court held that contempt proceedings are quasi-criminal, involve the public interest at large, and a party alleged to be in contempt cannot terminate the proceedings by withdrawing its own suit. Such withdrawal would sacrifice the public interest in the rule of law and amount to an abuse of process under Section 3A of the Civil Procedure Act.
Legal principles established
#- A party enjoys an absolute right to withdraw a suit that has not been set down for hearing, subject only to costs, but that right is lost where contempt of court proceedings are pending against that party, because contempt proceedings are quasi-criminal and implicate the public interest.
- Withdrawal of a suit for the purpose of defeating pending contempt proceedings is an abuse of the process of court which the court has power to stop under Section 3A of the Civil Procedure Act.
Court orders
#- 1.The Applicant's Notice of Withdrawal of the suit is struck out with costs to the 1st Interested Party
- 2.The issue of costs of the withdrawal was not addressed since withdrawal was declined
- Jurisdiction invoked
- Inherent power of the High Court under Section 3A of the Civil Procedure Act and Order 25 of the Civil Procedure Rules, 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Export Processing Zones Authority & 2 others; London Distillers (K) Ltd & 3 others (Interested Parties) Ex parte Erdermann Property Limited [2020] KEELC 1228 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1228/eng@2020-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.