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ELCPartially AllowedNot stated in judgment

Winstone v Bolo (Enviromental and Land Originating Summons E026 of 2024) [2025] KEELC 7975 (KLR)

Environment and Land Court
14 November 2025
1,446 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a plaintiff to withdraw a land suit but blocked refiling on the same issue without fresh court permission.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (Hon. Dr. Iur Nyagaka, Judge) deals with an oral application by the plaintiff to withdraw the entire Originating Summons, made on the date fixed for formal proof hearing on 11th November 2025. The court traced the procedural history: the matter had been screened for mediation without success, was set for notice to show cause for want of compliance, and was eventually fixed for formal proof. The court distinguished Order 25 Rule 1, which permits withdrawal by written notice before a suit is set down for hearing, from Order 25 Rule 2, which governs withdrawal after setting down - either by written consent of all parties or by leave of the court on terms as to costs and any subsequent suit. Relying on Skyline Sacco Society Ltd v Cheboror, Salat v IEBC and Beijing Industrial Designing & Researching Institute v Lagoon Development Limited, the court held that a party's right to withdraw is unfettered and cannot be barred by the court, which may only impose just conditions. However, the court noted that the suit had abated over a year earlier under Order 5 Rule 6 because summons were never collected and served within thirty days of issue, and the plaintiff had nonetheless purported to fix it for formal proof. The withdrawal was allowed, but to prevent abuse of court process, the applicant is barred from filing any fresh suit against the same party over the same subject matter without first obtaining the leave of the court. There was no order as to costs. The ruling was delivered virtually on 14th November 2025, with none of the parties present.

Questions the Court framed

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

  1. 1.Whether the plaintiff may withdraw the entire Originating Summons orally when the suit had already been set down for formal proof hearing
  2. 2.Under which provision of Order 25 the withdrawal falls and on what terms it may be allowed
  3. 3.What conditions, if any, should be imposed on the withdrawal

Key legal issues

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01

Mode of withdrawal of a suit set down for hearing

Holding

Where a suit has been set down for hearing, withdrawal requires either a written consent signed by all parties or leave of the court on such terms as are just; an oral application falls under Order 25 Rule 2(2)

Reasoning

Order 25 Rule 1 permits withdrawal by written notice only before setting down for hearing. Once set down, Rule 2 applies: discontinuance is by written consent of all parties or by court leave on terms as to costs and any subsequent suit. The application here was oral and made at the formal proof hearing, so the court's leave was required.

p. 2
02

Whether the court can refuse withdrawal

Holding

The court cannot bar a party from withdrawing their matter; it can only impose terms such as costs

Reasoning

Relying on Skyline Sacco, Salat and Beijing Industrial, the court held the right to withdraw is unfettered and cannot be taken away; the court's role is limited to imposing just conditions for withdrawal.

p. 3
03

Effect of withdrawal of an abated suit

Holding

The suit had abated over a year earlier for failure to collect and serve summons within thirty days; the withdrawal seals it completely and refiling on the same subject matter requires the court's leave

Reasoning

Order 5 Rules 1, 3 and 6 require summons to issue and be collected for service within thirty days, failing which the suit abates. The suit had abated over a year prior, and the plaintiff purported to fix it for formal proof without service. To prevent abuse of court process, any fresh suit on the same subject matter requires prior leave.

p. 3

Legal principles established

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  • A party has an unfettered right to withdraw a suit, but where it has been set down for hearing the withdrawal requires the court's permission and may be subject to terms as to costs or refiling
  • A summons not collected for service within thirty days of issue causes the suit to abate

Court orders

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  1. 1.The oral application for withdrawal of the entire Originating Summons is allowed
  2. 2.The applicant is not permitted to file another suit against the same party over the same subject matter without first seeking and obtaining the leave of the court
  3. 3.No order 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 Rules 1 and 2 of the Civil Procedure Rules 2010

Relief refused

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Unconditional liberty to file a fresh suit over the same subject matter

The suit had abated for want of service within thirty days, and withdrawal of an abated suit seals it completely; leave of the court is required before refiling

Costs

There shall be no order 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.

Where a suit has been set down for hearing the court may grant the plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just.
p. 2Withdrawal of a suit set down for hearing
This court cannot stop any party from withdrawing their matter since it is their unfettered right to do so.
p. 2Unfettered right of withdrawal
The plaintifi has withdrawn an abated suit: it abated over a year ago. I doubt whether an abated suit withdrawn can ever be revived. The withdrawal seals it completely.
p. 3Effect of withdrawal of an abated suit
the applicant is not permitted to or shall not file another suit against the same party over the same subject matter, without first seeking from and being granted the leave of this court to do so.
Final order - leave required for any fresh suit
There shall be no order as to costs.
p. 3Costs

Issues in the judgment

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minor

Parties are referred to only as 'Plaintifi/Applicant' and 'Respondent' with no names given anywhere in the judgment

minor

The judgment does not state the case number, court station, or the subject matter of the Originating Summons

minor

The court labels the decision a 'RULING' on an oral application for withdrawal, i.e. an interlocutory decision rather than a final judgment after full hearing

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, "Winstone v Bolo (Enviromental and Land Originating Summons E026 of 2024) [2025] KEELC 7975 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7975/eng@2025-11-14

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