1.Upon perusing the notice of motion application by the 1st respondent dated 9th September, 2021 and filed on 22nd September, 2021 seeking orders to strike out the petition of appeal by the petitioner, for being in violation of the provisions of article 163(4) of the Constitution and rule 33 of the Supreme Court Rules 2020 and/or in the alternative, the court to order the petitioner to provide costs of Kshs 50 Million in priority and as a precondition to the prosecution of the instant petition; the application being predicated under the provisions of article 163(4)(8) and (9) of the Constitution and sections 3, 12, 15(1) and (2),21(1) and (2), 24, 30(2), 31, 32 and 36(1) of the Supreme Court of Kenya Act, 2011 and rules 2, 3(1), (5), 6(1) and (b), 31(1), (3), (6) and (7), 33(1) and (2), 36(1), 37(1) and (2), 38(1)(a), (2)(a) and 46(1) of the Supreme Court Rules 2020 and;
2.Upon reading the 1st respondent’s grounds in support of the application, the supporting affidavit sworn by Prof Michael Kiptoo on behalf of the 1st respondent, where the 1st respondent avers that the petition fails to meet the jurisdictional threshold under article 163(4) of the Constitution and section 30(2) of the Supreme Court Act and;
3.Upon considering the 1st respondent’s written submissions filed on 22nd September, 2021 wherein it is contended that the petitioner did not raise any questions of constitutional interpretation and application in his defence filed in response to the counter claim by the 1st respondent before the trial court and neither were any such issues addressed by the Court of Appeal in its judgement nor was any certification sought from the Court of Appeal that the intended appeal involves matters of general public importance as provided for under section 30(2) of the Supreme Court Act 2011 as read with rule 33 Supreme Court Rules 2020 and;
4.Noting the 1st respondent’s further submission that they were never served with the Notice of Appeal as mandated under sections 31 and 36(1) of the Supreme Court Act as read with rule 37 (1) of the Supreme Court Rules and their further contention that the Record of Appeal was lodged out of time after 30 days in contravention of section 32 of the Supreme Court Act and rule 38(1)(a) of the Supreme Court Rules and;
5.Further noting from the record that the application is not directly responded to but instead, the petitioner, by way of a notice of motion application dated 7th October 2021 and filed on 14th October, 2021 seeks an order that the petition dated 21st August, 2021 and filed on 23rd August, 2021 be marked as withdrawn on the grounds that: -
6.Further noting that the above grounds are repeated in the supporting affidavit sworn on 7th October, 2021 by Prof Migai Akech, the Advocate on record for the petitioner and;
7.Upon reading the written submissions by the petitioner in support of his application where he submits that this court held in the case of Council of Governors v Senate & another; SC Reference No 1 of 2014; eKLR that the choice by a party to withdraw a matter before court, as a general rule, cannot be taken away from that party and that with the petitioner having given reasons seeking for withdrawal of the petition, then the withdrawal should be granted in accordance with rule 27(1) of the Supreme Court Rules 2020 and;
8.Having considered the two related applications before us, we now opine as follows:We further held in Hamdia Yaroi Nuri v Faith Tumaini Kombe & 2 others; SC Petition (Application) No 38 of 2018;  eKLR that a party who seeks to withdraw from proceedings is required to file a substantive application seeking to withdraw from the proceedings.
9.In the event and for reasons above:
10.It is so ordered.