Catholic Diocese of Eldoret v Kimutai & another (Environment & Land Case E014 of 2024) [2025] KEELC 3975 (KLR)
The bottom line
#A Kenyan court confirmed parties can withdraw court applications when circumstances change, but withdrawal doesn't automatically shield them from paying costs.
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 defendants/applicants should be permitted to withdraw their notice of motion dated 31st December 2024 without costs, on the ground that the application had been overtaken by events following their eviction from the suit property
Key legal issues
#Whether the defendants' application dated 31st December 2024 could be withdrawn
Yes. The court found the withdrawal meritorious because the defendants had been evicted from the suit property and the application had been overtaken by events, and a party's choice to withdraw with reasons cannot generally be taken away.
Counsel for the defendants sought to withdraw the motion without costs, explaining the defendants had already been evicted from LR NO. Nandi/Kamobo/2181, rendering the application moot. Counsel for the plaintiff did not oppose withdrawal. The court applied the principle that a party who gives reasons for withdrawing a matter cannot generally be deprived of that choice, and held the withdrawal meritorious.
Costs of the withdrawn application
The withdrawal was allowed with costs in the cause; the applicants' request to withdraw without costs was not granted in those terms.
Although Mr Oduor sought withdrawal without costs, the court allowed the withdrawal of the application with costs in the cause, meaning the question of costs was left to be determined in the main cause rather than fixed at the withdrawal stage.
Legal principles established
#- A party's choice to withdraw a matter before court, having given reasons therefor, cannot as a general rule be taken away from that party
Court orders
#- 1.The withdrawal of the application dated 29th October 2024 was allowed with costs in the cause
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 (Cap 21) and Order 22 Rule 22 of the Civil Procedure Rules 2010
Relief refused
#The interim prayers in the notice of motion dated 31st December 2024 (re-opening of the premises, return of attached property, and temporary stay of execution) were never determined, the application having been withdrawn
The application was withdrawn by the applicants as it had been overtaken by events, the defendants having been evicted from the suit property
Costs
Costs in the cause
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 trite 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 ; see Council of Governors-vs-Senate & another ; SC Reference No. 1 of 2014 (2014) eKLR.
Wherefore, I hereby allow the withdrawal of the application dated 29th October 2024 with costs in the cause.
Clearly, learned counsel for the applicants/defendants explained that the defendants have been evicted from the suit property. That therefore, the application has been overtaken by events herein.
Issues in the judgment
#The motion under consideration is dated 31st December 2024, but the court's operative order refers to an application dated 29th October 2024; it is unclear whether this is a typographical error or a reference to a different application (the hearing of which the 31st December 2024 motion sought to stay).
The judgment's opening heading is empty (paragraphs 1 and 2 numbering) and the plaintiff/respondent's name is nowhere stated; the parties are identified only by role.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catholic Diocese of Eldoret v Kimutai & another (Environment & Land Case E014 of 2024) [2025] KEELC 3975 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3975/eng@2025-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.