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ELCOther· [2024] KEELC 4605 (KLR)

Katu v Masaku & another (Environment and Land Appeal E013 of 2021) [2024] KEELC 4605 (KLR)

High Court of Kenya
12 June 2024
TMT. Murigi
374 words in judgment
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The bottom line

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A Kenyan High Court ruled that a respondent to an appeal that was never formally admitted cannot claim costs when the appellant withdraws it.

What this practically means

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Executive summary

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This ruling of the High Court (T. Murigi, J) delivered on 12th June 2024 via Microsoft Teams dealt with a Notice of Withdrawal of Appeal dated 26th October 2023, filed by the Appellant through the firm of Muumbi & Co. Advocates. The Memorandum of Appeal itself had been filed on 3rd November 2021. When the matter came up for directions on 7th March 2024, Counsel for the Appellant confirmed the withdrawal, while Counsel for the 2nd Respondent, Ms Kyalo, raised no objection but sought costs of the appeal. Counsel for the Appellant opposed costs, arguing the appeal had never taken off and that the 2nd Respondent had already been awarded costs in an application dated 21st November 2021. The court perused the record and found that the appeal had not been admitted in accordance with Section 79B of the Civil Procedure Act. Relying on the holding in Muli Mutiso vs Mbithi Ndolo & Another, HCCA 120/2003 (Mks), the court held that without admission of an appeal and service thereon, a Respondent has no role to play in the appeal, and any costs to which such a Respondent might be entitled are limited to interlocutory matters, not the appeal itself. Accordingly, the court allowed the withdrawal and ordered that the appeal be marked withdrawn with no orders as to costs.

Key legal issues

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Entitlement to costs on withdrawal of an unadmitted appeal

Holding

The 2nd Respondent is not entitled to costs because the appeal had not been admitted under Section 79B of the Civil Procedure Act

Reasoning

The court perused the record and found the appeal had never been admitted under Section 79B. Until admission and service, a Respondent has no role in the appeal, which lies between the judge and the Appellant. Any Respondent costs are limited to interlocutory matters such as stay applications, of which none was established here as attracting costs on the appeal itself.

p. 1

Legal principles established

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  • Where an appeal has not been admitted under Section 79B of the Civil Procedure Act, a Respondent has no role in the appeal and is not entitled to costs upon its withdrawal

Court orders

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  1. 1.The Appeal is withdrawn with no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 79B

Cases cited (1)

  • Muli Mutiso vs Mbithi Ndolo & Another
    HCCA 120/2003 (Mks)
On appeal from
not stated
Jurisdiction invoked
Appellate jurisdiction under the Civil Procedure Act, including Section 79B (admission of appeals)

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, "Katu v Masaku & another (Environment and Land Appeal E013 of 2021) [2024] KEELC 4605 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4605/eng@2024-06-12

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