Makitoni & 2 others v Mukhwana (Suing as the administrator of the Estate of Teresina Musebe) & 3 others; Masinde (Suing as the administrator of the Estate of Michael Watamba) (Interested Party) (Enviromental and Land Originating Summons 109 of 2000) [2025] KEELC 1332 (KLR)
The bottom line
#A Kenyan court refused to let plaintiffs abandon their land case verbally, ruling that withdrawal requires a written notice formally served on all parties.
What this practically means
#Executive summary
#Key legal issues
#Whether withdrawal of a suit may be effected orally without a formal notice
Order 25 of the Civil Procedure Rules contemplates a written notice served on all parties; although the Order does not bar an oral request, the plaintiffs here failed to comply with the prescribed format and the court declined the oral withdrawal
Order 25 Rule 1 provides for discontinuance by notice in writing served on all parties before setting down for hearing; Rule 2 preserves the court's discretion. The court held that while the Order does not expressly bar an oral request, withdrawal must be through the prescribed format, and where rights have accrued to a defendant or the process might be abused, court sanction is required. The plaintiffs having made only an oral application, the court declined it absent a formal notice.
Whether the court should make findings on the validity of the title deed issued to the plaintiffs
The court declined to make conclusive findings on whether the title deed issued to the plaintiffs survives the ruling setting aside the initial judgment, absent a formal application or notice
The court noted that no party had appealed or sought review of the ruling setting aside the initial judgment from which the plaintiffs obtained a title deed, and no formal application challenged the title. Without a formal notice of withdrawal and objection to it, the court considered its jurisdiction on discontinuance limited and declined to make conclusive findings on the competing title claims.
Legal principles established
#- A plaintiff may withdraw a suit under Order 25 Rule 1 of the Civil Procedure Rules through the prescribed format, and where a defendant has acquired a right or is protected by an order, the plaintiff must seek the sanction and endorsement of the court, which has discretion to allow or reject leave on terms
- The right to discontinue or withdraw a suit may not be used to abuse the process of the court or defeat the ends of justice
Court orders
#- 1.The invitation to allow withdrawal of the suit without a formal application or notice is declined
- 2.The plaintiffs, if they wish to exercise their right under Order 25 of the Civil Procedure Rules, are directed to file and serve upon all the parties a formal notice of withdrawal within 14 days
- 3.Failure to file such notice, the suit shall be dismissed for non-prosecution after 30 days from the date of the ruling
- Jurisdiction invoked
- Not expressly stated; matter before the Environment and Land Court in its original jurisdiction, disposing of an application under Order 25 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makitoni & 2 others v Mukhwana (Suing as the administrator of the Estate of Teresina Musebe) & 3 others; Masinde (Suing as the administrator of the Estate of Michael Watamba) (Interested Party) (Enviromental and Land Originating Summons 109 of 2000) [2025] KEELC 1332 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1332/eng@2025-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.