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ELCPartially AllowedKwale Case No E136 of 2023 (Appeal)· [2025] KEELC 649 (KLR)

Kwale International Sugar Company Limited v Ndutumi Auctioneers (Environment and Land Appeal E003 of 2023) [2025] KEELC 649 (KLR)

Environment and Land Court
17 February 2025
LNL.L Naikuni
1,876 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Withdrawing an appeal in Kenya ends it permanently, and the withdrawing party usually pays the other side's legal costs.

What this practically means

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Executive summary

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The Appellant, Ndutumi Auctioneers, had appealed to the Environment and Land Court at Kwale against orders of Hon. Kiongo Kagenyo [RM] in Kwale Case No E136 of 2023 delivered on 14th July 2023 and 23rd August 2023. On 29th January 2025, during directions, Counsel for the Appellant orally applied to withdraw the appeal on the ground that it had been overtaken by events and that the Respondent had filed no response. Counsel for the Respondent, Mr Nyange, did not oppose the withdrawal but sought costs, arguing that the matter was closely related to the active ELC Appeal No 001 of 2023 and that costs follow the event. The court directed written submissions, which were not accessed by the time of the Ruling, and proceeded to determine the matter on its merits. Framing a single issue - whether the withdrawal of the appeal should be subject to payment of costs - the court held that appeals are governed by Sections 79A-G of the Civil Procedure Act and Order 42 of the Civil Procedure Rules, which make no provision for withdrawal, and turned to Order 25 Rules 1, 2 and 3. Relying on Charles Kiptarbei Birech v Paul Waweru Mbugua and Antony Kayaya Juma v Humphrey Ekesa Khaunya, it held that a withdrawn suit ceases to exist and cannot be reinstated. On costs, applying Section 27(1) of the Civil Procedure Act and the principle that costs follow the event, the court found the Respondent, though it filed no response, had been served and incurred advocate's charges through attendance. It marked the appeal as withdrawn and awarded the costs of the appeal to the Respondent.

Key legal issues

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01

Effect of withdrawal of an appeal

Holding

Withdrawal marks the end of the suit; it cannot be reinstated.

Reasoning

The court applied Order 25 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010, and the authorities of Charles Kiptarbei Birech v Paul Waweru Mbugua and Antony Kayaya Juma v Humphrey Ekesa Khaunya, holding that a withdrawn suit ceases to exist and cannot be revived, even by consent.

p. 3
02

Whether costs should be awarded to the Respondent upon withdrawal of the appeal

Holding

Yes; costs of the appeal awarded to the Respondent.

Reasoning

Costs are discretionary under Section 27(1) of the Civil Procedure Act and follow the event. The Respondent, though it filed no response, was served, procured an advocate who attended court, and thereby incurred charges; the Appellant dragged the Respondent to court and should meet the costs occasioned.

p. 4

Legal principles established

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  • A suit or appeal once withdrawn ceases to exist and cannot be reinstated.
  • Costs follow the event unless the court for good reason otherwise orders.

Court orders

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  1. 1.The filed appeal preferred through the Memorandum of Appeal dated 29th August 2023 be and is hereby marked as withdrawn.
  2. 2.The costs of the appeal be awarded to the Respondent herein.

Authorities

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Legislation

  • Constitution of Kenya2010
  • Civil Procedure ActCap. 21, Sections 79A, B, C, D, E & G
  • Civil Procedure ActSection 27(1)
  • Civil Procedure Rules2010, Order 42 Rules 1 to 35
  • Civil Procedure Rules2010, Order 25 Rules 1, 2 & 3

Cases cited (7)

  • Charles Kiptarbei Birech v Paul Waweru Mbugua & another
    [2021] eKLR
  • Antony Kayaya Juma v Humprey Ekesa Khaunya & another
    [2004] eKLR
  • Reids Heweet & Company v Joseph
    AIR 1918 cal. 717
  • Myres v Defries
    (1880) 5 Ex. D. 180
  • Jasbir Rai Singh v Tarchalan Singh
    eKLR (2014)
  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    eKLR (2014)
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
On appeal from
Magistrates' Court
Kwale Case No E136 of 2023
Jurisdiction invoked
Sections 79A, B, C, D, E & G of the Civil Procedure Act, Cap. 21 and Order 42 Rules 1 to 35 of the Civil Procedure Rules, 2010

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, "Kwale International Sugar Company Limited v Ndutumi Auctioneers (Environment and Land Appeal E003 of 2023) [2025] KEELC 649 (KLR)", Case Analysis (2025). Kwale Case No E136 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/649/eng@2025-02-17

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