1. Before me is a Notice of Motion application dated 25th June 2024 vide which the Respondent seeks the following orders:-
(1) That this honourable Court lacks jurisdiction to hear and determine this appeal because:-
a. This appeal is subjudice to the application dated 15th November 2022, pending before the Tononoka Children Court in TCCC No 107 of 2018;
b. The Appeal against the order of 16th November 2020 is time-barred.
(2) That the Court does declare the appeal herein as an abuse of the Court process and dismiss the same with costs to the Respondent; and
(3) That the costs of this application be borne by the Appellant.
2. Although the Appellant/Respondent was aware of the application, having been served, and even though she was represented by counsel when the matter came up for hearing on 1st and 23rd July, 26th September and 22nd October 2024, neither she nor her advocates responded to the application. On 27th November 2024, when the matter came up for highlighting the written submissions, both she and her advocates were absent.
3. This Court notes that rather than respond to the application, the Appellant filed, in this court, what is stated to be a Notice of Withdrawal of the application pending before the Court below.
4. There is no evidence that said Notice of Withdrawal of the application dated 15th November 2022 was actually filed in the Court below. Even assuming it was, no proof was provided that the purported withdrawal was adopted by the Tononoka Children’s Court and deemed as the order of that Court. It is not the act of filing a Notice of Withdrawal that withdraws a pending application; rather, the adoption of the Notice by the Court does. This Court will, therefore, draw an ineluctable conclusion that the application dated 25th November 2022 is still pending before the Court below.
5. As the application dated 25th June 2024 is unopposed despite ample opportunity given to the Appellant/Respondent, this Court has no option but to allow the same. In the circumstances, I find and hold that this appeal is sub judice. In my view, in the absence of the submissions to the contrary, the appeal is an abuse of the Court process. The appeal is, therefore, struck out.
6. The application dated 25th June 2024 is thus allowed with no order as to costs.
7. Orders accordingly.
Dated and signed at Mombasa this 15th day of January 2025. Delivered virtually via Microsoft TEAMS.