Ndangána v Masika & another (Environment and Land Appeal E021 of 2023) [2025] KEELC 7778 (KLR)
The bottom line
#Once you withdraw an appeal in Kenya, it takes effect immediately on service and generally cannot be reinstated, the Environment and Land Court has ruled.
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 applicant deserves the orders sought - namely expunging the notice of withdrawal of appeal, allowing new advocates to come on record, and amending the Memorandum of Appeal
Key legal issues
#Effect of notice of withdrawal of appeal before setting down for hearing
Withdrawal took effect upon service and the appeal stood withdrawn; it could not be expunged or reinstated
Relying on Order 25 of the Civil Procedure Rules as explained in Beijing Industrial Designing, where a suit/appeal has not been set down for hearing, the withdrawing party has an absolute right to withdraw, and withdrawal takes effect upon service of the notice. No directions had been issued and no Record of Appeal filed, so the withdrawal was pre-setting down and effective on service on 15/02/2024. No law permitting reinstatement was cited.
Alleged lack of instructions to former advocates
The presumption of instructions was not rebutted
It is trite law that instructions to an advocate are presumed to exist unless proved otherwise, per Kenya Commercial Bank v Specialized Engineering. The appellant adduced no evidence showing that Kiveu & Company acted without instructions at the point of withdrawal, so the expunging prayer failed.
Change of advocates
Leave granted for Maobe Mukhwana & Company Advocates to come on record
Under Order 9 Rule 9 a party may change advocates after conclusion of a case with leave of court. The appellant is entitled to an advocate of choice and no impediment exists, so that prayer was allowed even though the rest of the application failed.
Legal principles established
#- A withdrawal of suit or appeal made before setting down takes effect upon service of the notice of withdrawal
- Instructions to an advocate are presumed to exist unless proved otherwise
- Once an appeal is withdrawn there is nothing capable of being reinstated
Court orders
#- 1.The firm of Maobe Mukhwana & Company Advocates granted leave to represent the appellant in place of Kiveu & Company Advocates
- 2.Prayer for expunging notice of withdrawal of appeal dismissed
- 3.Prayer for reinstatement of withdrawn appeal dismissed
- 4.Prayer for amendment of Memorandum of Appeal dismissed
- 5.Application dated 3rd May 2024 dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Court and Civil Procedure Rules (Order 25, Order 9 Rule 9)
Relief refused
#Expunging the notice of withdrawal of appeal and reinstating the appeal
Withdrawal took effect upon service; once withdrawn, an appeal cannot be reinstated and no law permitting reinstatement was cited
Amendment of the Memorandum of Appeal
The appeal having been effectively withdrawn as of 15/2/2024, there is no appeal before court capable of being amended
Costs
Application dismissed with costs to the respondent
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.
In my view once an appeal is withdrawn, there is nothing capable of being reinstated
the application dated 3rd May 2024 is hereby dismissed with costs to the respondent
a party can withdraw their suit any time before the suit is set down for hearing. In such a case, the withdrawal takes efiect on the service of the withdrawal notice
Issues in the judgment
#Judgment inconsistently dates the service of the notice of withdrawal, using both 2014 and 2024
Judgment cites Order 25 of the Civil Procedure Rules as 'Order 26 Rule 1'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndangána v Masika & another (Environment and Land Appeal E021 of 2023) [2025] KEELC 7778 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7778/eng@2025-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.