Atlantis Life Science Ltd v Abuti (Civil Appeal E222 of 2024) [2025] KEHC 19388 (KLR) (9 September 2025) (Ruling) Neutral citation: [2025] KEHC 19388 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIAMBU CIVIL APPEAL E222 OF 2024 DO CHEPKWONY, J SEPTEMBER 9, 2025 BETWEEN ATLANTIS LIFE SCIENCE LTD ............................................................ APPLICANT AND ANTONY AURA ABUTI .................................................................... RESPONDENT (Being an Appeal from the ruling delivered by the Honourable Tawal Jacklyne Khalimesi on 5th December, 2024) RULING 1. The Appellant/Applicant lodged the present appeal and application for stay of execution orders, both dated 18th December, 2024. On 20th December, 2024, this Court issued an Order directing the appellant to serve the application upon the Respondent. The Appellant/Applicant then filed Notice of Withdrawal of Appeal dated 23rd December, 2024 seeking to withdraw the appeal with no orders as to costs. When the matter came up on 5th March 2025 only the Appellant’s Counsel was present but the court was indisposed and another date of 27th March, 2025 was given. 2. On this day, the Appellant’s Counsel sought to have the appeal withdrawn with no orders on costs since the decretal sum had been settled by the Respondent. The Respondent’s Counsel did not object to the withdrawal of appeal but sought for costs. He holds that the court had directed that a response and submissions be filed on the application and was later served with the Notice of withdrawal of the Appeal. The Appellant’s Counsel objected to this on the ground that it was only the first time that the parties were appearing in court. He stated that through the Affidavit of Service filed the Respondent was aware of the withdrawal of the appeal. 3. This court has gone through the Case Tracking System and notes that there is no document filed by the Respondent in the matter not even Notice of Appointment of Advocates to show that the Respondent has incurred any costs in the matter. The Notice of withdrawal of Appeal was filed just days after filing https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19388/eng@2025-09-09 1
page 1 of 2
of the appeal which was after the Respondent paid the decretal sum. The court finds that it would amount to unjust enrichment for the Respondent to seek costs in the appeal yet no action has been undertaken by the Respondent. Given that the Respondent is not formally on record he cannot be awarded costs for the attendance of 27th March, 2025. For that reasons the court hereby marks the Appeal herein as withdrawn with no orders as to costs. The court directs the file to be marked as closed. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 9TH DAY OF SEPTEMBER ,2025. D. O. CHEPKWONY JUDGE In the presence of: Mr. Kirugu holding brief for Mr. Ogutu counsel for the Appellant Court Assistant - Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19388/eng@2025-09-09 2
page 2 of 2