Kimutai & another v Tarus; Saina & 2 others (Applicant) (As a Legal Representatives of the Estate of Kipsaina arap Tarus alias Kipsaina Tarus - Deceased) (Environment & Land Case 12 of 2021) [2025] KEELC 3908 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a party who explains their reasons can freely withdraw a court application before it is decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted leave to withdraw their notice of motion dated 9th March 2021
Key legal issues
#Whether leave to withdraw an application should be granted
Leave granted where counsel gave reasons for the withdrawal
The court applied the principle that a party who gives reasons for withdrawing a matter before court cannot as a general rule be deprived of that choice. Counsel for the applicants stated the applicants intended to file a fresh application owing to changes in the matter. There being no response opposing the withdrawal, the court found merit in the request and allowed it with no orders as to costs.
Legal principles established
#- A party's choice to withdraw a matter before court, having given reasons, cannot as a general rule be taken away from that party
Court orders
#- 1.Leave granted to the applicants to withdraw the notice of motion dated 9th March 2021
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya and Article 159 of the Constitution of Kenya 2010
Relief refused
#Leave to amend the Defence in E & L No. 12 of 2021 to substitute the deceased defendant with the administrator of his estate
Application withdrawn before hearing; not determined on merits
Consolidation of E & L No. 12 of 2021 with E & L No. 57 of 2021 and No. E006 of 2022
Application withdrawn before hearing; not determined on merits
Costs
No orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is established law that the choice by a party to withdraw a matter before court having given reasons thereof as a general rule, cannot be taken away from that party
Accordingly, I hereby allow the withdrawal of the application dated 9th March 2025 with no orders as to costs.
Issues in the judgment
#The judgment describes the application as dated 9th March 2021 in the opening paragraph but as dated 9th March 2025 in the final order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimutai & another v Tarus; Saina & 2 others (Applicant) (As a Legal Representatives of the Estate of Kipsaina arap Tarus alias Kipsaina Tarus - Deceased) (Environment & Land Case 12 of 2021) [2025] KEELC 3908 (KLR)", Case Analysis (2025). E & L No. 12 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3908/eng@2025-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.