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ELCPartially AllowedNot stated in the judgment (appeal against ruling of Machakos Chief Magistrate's Court ELC No. 71 of 2018)· [2021] KEELC 665 (KLR)

Shadrack Silla Muthama v Kebaso Wycliffe Maengwe [2021] KEELC 665 (KLR)

Environment and Land Court
30 November 2021
1,906 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can withdraw a case without permission, but filing it first means you must pay the other side's costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Nyukuri, J) determines an oral application by counsel for the Appellant, made on 28 October 2021, to have an appeal against the ruling of the Magistrate's Court of 22 September 2020 marked as withdrawn with no order as to costs. Counsel asserted the appeal had been filed in error in the name of Shadrack Silla Muthama, a non-client, and that under Order 25 Rule 1 of the Civil Procedure Rules a notice of withdrawal filed on 13 May 2021 took effect upon filing. Counsel for the Respondent did not oppose withdrawal but sought costs, noting the Respondent had entered appearance, filed a preliminary objection and other documents, and that the withdrawal notice was never adopted as a court order. The court framed two issues: whether the notice of withdrawal took effect upon filing, and whether withdrawal should be subject to costs. Relying on the Salat and Beijing Industrial Designing decisions, the court held that a party has an absolute right to withdraw before setting down, so no leave was required, but that under Order 25 Rule 1 the notice takes effect upon service, which was never effected. The court rejected the claim of mistaken identity, holding the Memorandum of Appeal and supporting affidavits show Kebaso Wycliffe Maengwe was the true Appellant. Having filed and served the appeal and forced the Respondent to incur costs, the Appellant could not avoid costs. The appeal was marked as withdrawn with costs awarded to the Respondent.

Key legal issues

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01

Whether the Notice of Withdrawal took effect upon filing

Holding

It did not; it took effect only upon service, which the Appellant never effected. However, leave was unnecessary as the appeal had not been set down for hearing.

Reasoning

Order 25 Rule 1 requires the written notice of withdrawal to be served on all parties. The Appellant filed the notice on 13 May 2021 but did not serve it, prompting the Respondent to fix the matter for mention. Since the appeal was never set down for hearing, the Appellant's right to withdraw was not fettered by any condition and leave of court was not required.

p. 2
02

Whether withdrawal should be conditional on payment of costs

Holding

Yes; costs were awarded to the Respondent despite the appeal not being set down for hearing.

Reasoning

The claim that the appeal was filed for the wrong party was rejected: the Memorandum of Appeal body and the supporting affidavits sworn by Kebaso Wycliffe Maengwe show he was the true Appellant. Having filed and served the appeal, causing the Respondent to instruct counsel and file documents, the Appellant could not escape liability for costs.

p. 3
03

Identity of the true Appellant

Holding

Kebaso Wycliffe Maengwe, not Shadrack Silla Muthama, was the Appellant despite the swapped names in the title of the Memorandum of Appeal.

Reasoning

Counsel argued the appeal was filed in error for a non-client. The court held the Memorandum of Appeal's body identifies Maengwe as the aggrieved party, and he swore the supporting affidavits in the stay applications. Exchanging the names in the title did not change the identity of the Appellant.

p. 3

Legal principles established

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  • A party has an absolute right to withdraw a suit/appeal before it is set down for hearing, without leave; the court may only order costs where appropriate
  • Under Order 25 Rule 1, a notice of withdrawal takes effect upon service on all parties, not merely upon filing

Court orders

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  1. 1.The appeal be and is hereby marked as withdrawn
  2. 2.The costs of the appeal are awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 (appeal commenced by Memorandum of Appeal)
  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure RulesOrder 25 Rule 2(1)
  • Civil Procedure RulesOrder 25 Rule 2(2)

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others
    Supreme Court Application No. 16 of 2014
  • Beijing Industrial Designing & Researching Institute vs. Lagoon Development Limited
    [2015] eKLR
  • Abayomi Babatunde vs. Pan Atlantic Shipping & Transport Agencies Ltd & Others
    SC 154/2002
On appeal from
Chief Magistrate's Court, Machakos
ELC No. 71 of 2018
Jurisdiction invoked
Appellate jurisdiction under the Civil Procedure Rules (Order 42) following leave granted by the Lower Court; not a first-instance suit

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shadrack Silla Muthama v Kebaso Wycliffe Maengwe [2021] KEELC 665 (KLR)", Case Analysis (2021). Not stated in the judgment (appeal against ruling of Machakos Chief Magistrate's Court ELC No. 71 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/665/eng@2021-11-30

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