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ELCOtherKapsabet ELC No. 1 of 2022 (Notice of Motion dated 21st July 2025)

Tuwei & 2 others v Tanui & 2 others (Environment and Land Miscellaneous Application E024 of 2025) [2025] KEELC 6700 (KLR)

Environment and Land Court
1 October 2025
444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed you can withdraw a court application when it becomes pointless, without paying the other side's legal costs.

What this practically means

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Executive summary

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The applicants, through Cherono Chepkosgey and Company Advocates, moved the court by Notice of Motion dated 21st July 2025 seeking, among other live prayers, a temporary injunction restraining the respondents, their agents and family members from holding meetings, conducting harambees, or burying the remains of Tabarno Jepkemei (deceased) on land parcels Songhor/Songhor Block 9 (Soy Sitet) 162 and 160, pending execution of the decree in Kapsabet ELC No. 1 of 2022 (David Kiplimo Tuwei & Others v Kiptabut A. Tanui & 2 others), plus an OCS compliance order and costs. When the application came up for submissions, counsel for the applicants informed the court that it had been overtaken by events because the body had been interred on land other than the suit parcels, and urged the court to mark the application abandoned and close the file. The court invoked Order 25 of the Civil Procedure Rules 2010 and the definition of 'suit' in section 2 of the Civil Procedure Act, and, citing the Supreme Court's decision in Medical Training College, reaffirmed that withdrawal or discontinuance is a party's right subject to the respondent's right to claim costs. Noting the respondents' absence without reason despite notice of the hearing date, the court found no prejudice would arise. Guided by the proviso to section 27(1) of the Civil Procedure Act and Jasbir Singh Rai, the application was marked discontinued with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants may discontinue/abandon their Notice of Motion dated 21st July 2025, it having been overtaken by events
  2. 2.Whether the discontinuance occasions prejudice to the respondents
  3. 3.What order as to costs should follow the discontinuance

Key legal issues

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01

Right of a party to withdraw or discontinue an application or suit

Holding

Discontinuance is a right of the party and should be allowed so long as it occasions no prejudice to the other side, subject to costs

Reasoning

The court invoked Order 25 of the Civil Procedure Rules 2010 governing withdrawal and discontinuance, and the definition of 'suit' in section 2 of the Civil Procedure Act. Relying on Supreme Court authority, it held withdrawal is a party's right subject to costs. Since the relief sought had been overtaken by events and no prejudice would befall the respondents, discontinuance was allowed.

p. 2
02

Costs upon discontinuance

Holding

No orders as to costs were made, guided by the proviso to section 27(1) of the Civil Procedure Act and the Jasbir Singh Rai case

Reasoning

Although a respondent may claim costs on withdrawal, the court has discretion under the proviso to section 27(1) of the Civil Procedure Act. Applying the costs principles in Jasbir Singh Rai, the court found no basis to award costs, particularly as the respondents appeared absent without reason and the application had been overtaken by events.

p. 2

Legal principles established

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  • A party has the right to withdraw or discontinue a matter, subject to the respondent's right to claim costs
  • Courts may make no order as to costs in a discontinued matter, guided by section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.The Notice of Motion dated 21st July 2025 marked as discontinued with no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 25 of the Civil Procedure Rules 2010 and the Civil Procedure Act Chapter 21 Laws of Kenya

Relief refused

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Temporary injunction restraining burial of the deceased's remains on the suit parcels and OCS compliance order

The application was overtaken by events as the body was interred elsewhere; applicants were allowed to discontinue the application

p. 2

Costs

No orders as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the application dated 21st July 2025, is hereby marked as discontinued with no orders as to costs taking into account the proviso to section 27 (1) of the Civil Procedure Act Chapter 21 Laws of Kenya and the holding in Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai Estate & 4 others (2014) eKLR.
p. 2disposition - discontinuance and costs
It is established law that any withdrawal, discontinuance of a matter ought to be allowed as it the right of a party to do so subject to issue of costs which can be claimed by the respondent, if any
p. 2right of withdrawal/discontinuance
In the premises, I find that the applicants have the right to discontinue this matter as the same would not occasion any prejudice to the Respondent thereby.
p. 2no prejudice to respondent
It is so ordered.
p. 2final orders

Issues in the judgment

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minor

The application record describes the parties as applicants/respondents in a first-instance motion but the relief references executing a decree in the underlying suit Kapsabet ELC No. 1 of 2022, which shares the same case number as the present application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tuwei & 2 others v Tanui & 2 others (Environment and Land Miscellaneous Application E024 of 2025) [2025] KEELC 6700 (KLR)", Case Analysis (2025). Kapsabet ELC No. 1 of 2022 (Notice of Motion dated 21st July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6700/eng@2025-10-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.