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ELCOtherNot stated in judgment

Nyabihiri & another v Nyabihiri (Environment & Land Case 92 of 2018) [2024] KEELC 5758 (KLR)

Environment and Land Court
22 July 2024
GOG.M.A. Ongondo
239 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a land dispute applicant to withdraw their application without penalty, since no one showed the withdrawal was made in bad faith.

What this practically means

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Executive summary

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This short ruling of the Environment and Land Court at Migori deals with a Notice of Motion dated 13th May 2024 by the applicant/defendant, which principally sought a stay of sale, transfer and disposal of a quarter of land reference Bukira/Bwisaboka/702 pending an intended review of the judgment in the suit, as well as leave to reopen the case, amend the pleadings and set the suit down for hearing. When the matter came up before G.M.A. Ongondo J, Mr S. Orina, learned counsel for the applicant, applied for withdrawal of the application to enable the applicant regularise the position in the suit. Mr Agure Odero, learned counsel for the respondents/plaintiffs, raised no opposition to the withdrawal. The court, citing Oscar Oluoch Ouma Kabote and Loice Kawaka & others [2022] eKLR, held that an applicant who has not demonstrated bad faith is entitled to withdraw an application. Finding merit in the prayer for withdrawal, the court marked the application dated 13th May 2024 as withdrawn and directed that each party bear their respective costs. The substantive relief in the motion was therefore never determined on its merits; the disposition was purely procedural. The ruling was dated, signed and delivered in open court at Migori on 22nd July 2024, with Mr Tom Maurice as Court Assistant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be allowed to withdraw the Notice of Motion dated 13th May 2024

Key legal issues

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01

Whether the applicant could withdraw the Notice of Motion dated 13th May 2024

Holding

The application was allowed to be withdrawn since no bad faith was demonstrated

Reasoning

Counsel for the applicant sought leave to withdraw the motion to enable the applicant regularise the position in the suit. Counsel for the respondents/plaintiffs did not oppose withdrawal. Relying on Oscar Oluoch Ouma Kabote and Loice Kawaka & others [2022] eKLR, the court held that an applicant who has not demonstrated bad faith is entitled to withdraw an application, found merit in the withdrawal prayer, and marked the motion withdrawn with no costs awarded to either side.

p. 1

Legal principles established

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  • An applicant is entitled to withdraw an application where no bad faith has been demonstrated

Court orders

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  1. 1.The application dated 13th May 2024 marked as withdrawn
  2. 2.Each party to bear their respective costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

GO
majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the court over its own proceedings (suit regarding land reference Bukira/Bwisaboka/702)

Relief refused

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Stay of sale, transfer and disposal of a quarter of land reference Bukira/Bwisaboka/702, reopening of the case, amendment of pleadings and setting the suit down for hearing

Not determined on merits; the application was withdrawn by counsel before hearing

p. 1

Costs

Each party shall bear their respective costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the applicant is entitled to withdraw the application as he has not demonstrated any bad faith herein as noted in Oscar Oluoch Ouma Kabote and Loice Kawaka & others [2022] eKLR
p. 1Withdrawal of application without bad faith
the application dated 13th May 2024, be and is hereby marked as withdrawn and each party shall bear their respective costs
p. 1Final orders

Issues in the judgment

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minor

The case title, suit case number and neutral citation are not stated anywhere in the judgment

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, "Nyabihiri & another v Nyabihiri (Environment & Land Case 92 of 2018) [2024] KEELC 5758 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5758/eng@2024-07-22

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