Winstone v Bolo (Enviromental and Land Originating Summons E026 of 2024) [2025] KEELC 7975 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff may withdraw the entire Originating Summons orally when the suit had already been set down for formal proof hearing
- 2.Under which provision of Order 25 the withdrawal falls and on what terms it may be allowed
- 3.What conditions, if any, should be imposed on the withdrawal
Key legal issues
#Mode of withdrawal of a suit set down for hearing
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)
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.
Whether the court can refuse withdrawal
The court cannot bar a party from withdrawing their matter; it can only impose terms such as costs
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.
Effect of withdrawal of an abated suit
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
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.
Legal principles established
#- 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
#- 1.The oral application for withdrawal of the entire Originating Summons is allowed
- 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.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 25 Rules 1 and 2 of the Civil Procedure Rules 2010
Relief refused
#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
#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.
This court cannot stop any party from withdrawing their matter since it is their unfettered right to do so.
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.
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.
There shall be no order as to costs.
Issues in the judgment
#Parties are referred to only as 'Plaintifi/Applicant' and 'Respondent' with no names given anywhere in the judgment
The judgment does not state the case number, court station, or the subject matter of the Originating Summons
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.