Murgor & another v Choge (As the Administrator of the Estate of Kipchoge Arap Biego - Deceased) (Enviromental and Land Originating Summons E040 of 2022) [2025] KEELC 6518 (KLR)
The bottom line
#A Kenyan court confirmed plaintiffs can freely withdraw their land case before trial, and walked away without paying the other side's legal 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 plaintiffs should be allowed to withdraw the originating summons with no orders as to costs
- 2.Whether the withdrawal was made in bad faith or caused prejudice to the defendant
Key legal issues
#Whether a plaintiff may withdraw a suit at will
Yes; the liberty to withdraw a filed matter cannot be taken away and the court should allow a party who approached the court to withdraw
The court relied on the Supreme Court's Lelli decision to hold that withdrawal is a matter of party liberty. Counsel for the plaintiffs sought withdrawal, the defendant had never entered appearance, and no prejudice arose. The court therefore exercised its discretion in favour of withdrawal.
Whether withdrawal should attract costs against the plaintiffs
No; no orders as to costs were made, guided by the proviso to section 27(1) of the Civil Procedure Act and precedent
The court found no bad faith and no appearance of prejudice to the defendant, who had not entered appearance. Invoking the proviso to section 27(1) of the Civil Procedure Act, the Abote decision and the Jasbir Singh Rai case, it declined to award costs, noting the nature and circumstances of the suit.
Legal principles established
#- A party has the liberty to withdraw a matter they have filed, and this liberty cannot be taken away
- Withdrawal may be allowed with no orders as to costs where no prejudice or bad faith is demonstrated, having regard to the proviso to section 27(1) of the Civil Procedure Act
Court orders
#- 1.The suit generated by the originating summons dated 6th December 2022 is marked as withdrawn
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; Civil Procedure Act Chapter 21 Laws of Kenya (section 27(1) proviso on costs)
Relief refused
#Declaration extinguishing the registered proprietor's interest over Nandi/Ndubeneti/198
Suit withdrawn before determination
Order vesting the suit land on the plaintiffs and rectification of the register
Suit withdrawn before determination
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.
Thus, the present suit generated by an originating summons dated 6th December 2022, is hereby marked as withdrawn.
Given the nature of the suit, the circumstances and taking into account the proviso to section 27 (1) of the Civil Procedure Act Chapter 21 Laws of Kenya, Abote case (supra) and the holding in Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai Estate & 4 others (2014) eKLR, I make no orders as to costs.
It is well settled that a party has the liberty to withdraw a matter and it cannot be taken away hence, the court has to allow a party who has approached the court to withdraw such a matter
In the circumstances, the plaintifis' counsel had advanced good reasons for the withdrawal of the suit. The court has the discretion to allow the withdrawal.
Issues in the judgment
#Typographical error in judgment: 'cots' appears where 'costs' is intended
Parties are not named in the judgment extract; referred to only as 'the plaintifis' and the defendant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murgor & another v Choge (As the Administrator of the Estate of Kipchoge Arap Biego - Deceased) (Enviromental and Land Originating Summons E040 of 2022) [2025] KEELC 6518 (KLR)", Case Analysis (2025). Originating Summons dated 6th December 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6518/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.