Katu v Masaku & another [2024] KEELC 4605 (KLR)

Katu v Masaku & another (Environment and Land Appeal E013 of 2021) [2024] KEELC 4605 (KLR) (12 June 2024) (Ruling)

Neutral citation: [2024] KEELC 4605 (KLR)

Republic of Kenya

In the Environment and Land Court at Makueni

Environment and Land Appeal E013 of 2021

TW Murigi, J

June 12, 2024

Between

Mulue Muasya Katu

Appellant

and

Kimenye Masaku

1st Respondent

Wambua Kimenye

2nd Respondent

Ruling

1. This matter came up for directions on 7th March, 2024, when Ms Kellen Learned Counsel for the Appellant informed the Court that they had filed a Notice of withdrawal of Appeal dated 26th October, 2023.

2. Ms Kyalo, Learned Counsel for the 2nd Respondent had no objection to the Appeal being withdrawn subject to payment of costs.

3. Ms Kellen argued that the 2nd Respondent is not entitled to costs for the reason that the appeal had not taken off. Counsel contended that the 2nd Respondent had been awarded costs in the application dated 21st November, 2021.

4. The record shows that the Appellant filed a Memorandum of Appeal dated 3rd November 2021 through the firm of Muumbi and Co. Advocates. On 26th October 2023, the Appellant filed a Notice of Withdrawal of Appeal through the firm of Muumbi & Co. Advocates.

5. I have carefully perused the record and I note that the Appeal has not been admitted in accordance with Section 79B of the Civil Procedure Act. In the circumstances, it is the finding of this court that Respondent is not entitled to costs. In so finding, I am persuaded by the holding in the case of Muli Mutiso vs Mbithi Ndolo & Another, HCC.A 120/2003 (Mks) where the court held that:“without admission of an appeal and service thereon there is yet no role for the Respondent save perhaps in an interlocutory application say for stay of execution pending appeal. Costs in such a case would be limited to those interlocutory matters and not the Appeal per se. If a Respondent enters the Appeal, fixes it for mention for an unclear purpose and then the Memorandum of Appeal is withdrawn, he cannot claim costs. I say so because as yet he has no role to play in it. The matter is for the judge and the Appellant who can take action on it without the Respondent.”

6. The upshot of the foregoing is that the Appeal herein is withdrawn with no orders as to costs.

….……………………………….HON. T. MURIGIJUDGERULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 12TH DAY OF JUNE, 2024. IN THE PRESENCE OF:Ms. Kyalo of the 2nd Respondent.Court Assistant Kwemboi2MKN RLG ELC APPEAL NO. E013 OF 2021