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ELCOtherNot stated in judgment· [2021] KEELC 358 (KLR)

Stephen Mugao Nkungu v Julia Wanja Muchege [2021] KEELC 358 (KLR)

High Court of Kenya
7 December 2021
CYC. K. Yano
360 words in judgment
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The bottom line

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The High Court at Chuka confirmed that an appellant can withdraw an appeal in Kenya simply by filing and serving a written notice, but usually pays the other side's costs.

What this practically means

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Executive summary

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This was an appeal before the High Court at Chuka, scheduled for directions on 7th December 2021 to confirm whether the original subordinate court record had been availed and whether the Record of Appeal had been filed and served. On 10th November 2021, the Appellant filed a Notice of withdrawal of the appeal through the firm of M/s. Kijaru, Njeru & Co. Advocates. When the matter came up on 7th December 2021, only Mr. Murango Mwenda, counsel for the Respondent, attended; there was no appearance for the Appellant. Respondent's counsel confirmed service of the Notice of withdrawal and raised no objection, save that costs be paid. The court held that Order 25 Rule 1 of the Civil Procedure Rules permits a party, before setting down a suit for hearing, to discontinue it by written notice served on all parties. Interpreting the Civil Procedure Act's definition of 'suit' as covering all proceedings commenced in any prescribed manner, Yano J held that this includes an appeal, and that the Appellant was therefore within his rights to withdraw the appeal by notice. Service of both the memorandum of appeal and the Notice of withdrawal on the Respondent was confirmed. The court allowed the withdrawal and marked the appeal as withdrawn, awarding costs to the Respondent. The judgment was delivered in open court at Chuka on 7th December 2021, with Ndegwa as Court Assistant.

Key legal issues

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01

Whether an appeal may be discontinued by notice of withdrawal under Order 25 Rule 1 of the Civil Procedure Rules

Holding

Yes; 'suit' under the Civil Procedure Act includes an appeal, and the Appellant was entitled to withdraw the appeal by notice before hearing.

Reasoning

Order 25 Rule 1 permits a plaintiff to discontinue a suit by written notice served on all parties before setting down for hearing. The court read 'suit' broadly, as the Civil Procedure Act defines it as all proceedings commenced in any prescribed manner, which encompasses an appeal. Service on the Respondent was confirmed, and the Respondent did not object, seeking only costs.

p. 2

Legal principles established

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  • The word 'suit' under the Civil Procedure Act includes an appeal, so an appeal may be withdrawn by notice under Order 25 Rule 1 of the Civil Procedure Rules.

Court orders

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  1. 1.The Appeal is marked as withdrawn with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure ActDefinition of 'suit'
On appeal from
Subordinate court
Jurisdiction invoked
Appellate jurisdiction of the High Court; withdrawal pursuant to Order 25 Rule 1 of the Civil Procedure Rules

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, "Stephen Mugao Nkungu v Julia Wanja Muchege [2021] KEELC 358 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/358/eng@2021-12-07

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