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ELCPartially AllowedMalindi ELC 53 of 2018

Neswa Investments Ltd & 2 others v Chengo & another (Environment and Land Case E029A of 2023) [2026] KEELC 703 (KLR)

Environment and Land Court
11 February 2026
612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed plaintiffs to withdraw their land suit over defendants' objections, but made them pay the defendants' costs.

What this practically means

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Executive summary

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The court gave directions on deconsolidation and withdrawal arising from two consolidated Environment and Land Court suits at Malindi: Malindi ELC 53 of 2018 and Malindi ELC E029A of 2023, consolidated by order of Makori J. on 27/9/2023. Earlier, Malindi ELC 53 of 2018 had come up for dismissal for want of prosecution, when counsel (Mr. Mwanzia) disclosed that the subject titles had been cancelled by the National Land Commission. Other counsel, including Mr. Gakuo, stated they were unaware of the consolidation. On 17/12/2025 Mr. Mwanzia indicated the plaintiffs wished to withdraw their suit, arguing the dispute had been rendered moot by the cancellation of titles. Mr. Gakuo and Mr. Maundu opposed the withdrawal as mischievous; Mr. Omollo did not object, subject to costs. The court held that a case belongs to the parties and the filer is the most concerned party in withdrawal; although a matter set down for hearing cannot be withdrawn unilaterally without the court's consent, there was no reason to bar the claimants from withdrawing. No application for deconsolidation was on file. The court allowed the withdrawal of Malindi ELC 53 of 2018 with costs awarded to the defendants, directed that the remaining suit proceed as though no deconsolidation had occurred unless a future consolidation order is made, and fixed a pretrial mention for 23rd April 2026. Judgment delivered at Malindi on 11th February 2026 by Mwangi Njoroge, Judge.

Questions the Court framed

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

  1. 1.Whether the consolidation of Malindi ELC 53 of 2018 with Malindi ELC E029A of 2023 should be deconsolidated
  2. 2.Whether the plaintiffs in Malindi ELC 53 of 2018 should be allowed to withdraw their suit over the objections of some defendants

Key legal issues

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01

Withdrawal of a suit set down for hearing over the objection of opposing parties

Holding

The court allowed the withdrawal notwithstanding objections, subject to costs to the defendants

Reasoning

The court held that a case belongs to the parties and the filer is the most concerned party in a withdrawal. Although a matter set down for hearing cannot be withdrawn unilaterally and requires the court's consent, the court found no reason to bar the claimants from withdrawing, particularly where the dispute had been rendered moot by cancellation of the titles by the National Land Commission. Compelling a claimant to litigate a moot dispute would serve no purpose.

p. 2
02

Effect of withdrawal on the consolidation with Malindi ELC E029A of 2023

Holding

The remaining suit proceeds as if no deconsolidation had occurred, absent a future consolidation order

Reasoning

There being no application for deconsolidation on file, the court did not formally deconsolidate the suits. Instead it directed that unless a future order consolidates the suits, the remaining matter shall proceed as though there had never been any deconsolidation with Malindi ELC 53 of 2018, and fixed a pretrial mention date.

p. 2

Legal principles established

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  • A suit that has been set down for hearing can only be withdrawn with the consent of the court, not unilaterally
  • A case belongs to the parties, not the court, and the filer of a case is the party most concerned in its withdrawal

Court orders

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  1. 1.The withdrawal of the suit Malindi ELC 53 of 2018 is allowed and the defendants are awarded costs of the suit
  2. 2.Unless any future order is made that the suit be consolidated with any other related suit, the matter (ELC E029A of 2023) shall proceed as though there was never any deconsolidation with Malindi ELC 53 of 2018
  3. 3.The matter to be mentioned on 23rd April 2026 for pretrial

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Inherent directions jurisdiction of the Environment and Land Court over a consolidated suit (consolidation order of Makori J. of 27/9/2023)
Consolidated with
Malindi ELC E029A of 2023

Relief refused

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Objections by Mr. Gakuo and Mr. Maundu to the withdrawal of the suit

A case belongs to the parties; compelling the claimant to proceed would be futile

p. 2

Costs

The defendants are awarded costs of the suit following the withdrawal of Malindi ELC 53 of 2018.

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.

A case belongs to the parties and not the court and in matters of withdrawal the filer of the case is the most concerned party, for he would be abandoning his claim.
p. 2Ownership of litigation and withdrawal
The withdrawal of a matter that has already been set down for hearing should be by consent of the court and it cannot be done unilaterally.
p. 2Consent of court required for withdrawal of a matter set down for hearing
The withdrawal of the suit Malindi ELC 53 of 2018 is allowed and the defendants are hereby awarded costs upon of the suit;
p. 2Final orders - withdrawal allowed with costs
Unless any order be made in future that suit be consolidated with any other related suit, it shall proceed as though there was never any deconsolidation with Malindi ELC 53 of 2018 in the first place;
p. 2Final orders - effect of withdrawal on consolidation

Issues in the judgment

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minor

Typographical errors in the judgment text: 'plaintifis', 'fiogging a dead horse', and 'costs upon of the suit' in the final orders

minor

Dates in the narrative appear inconsistent: the record states the matter came up on 7/10/2025 after a mention fixed for 29/10/2024, and the withdrawal is recorded twice on 17/12/25

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, "Neswa Investments Ltd & 2 others v Chengo & another (Environment and Land Case E029A of 2023) [2026] KEELC 703 (KLR)", Case Analysis (2026). Malindi ELC 53 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/703/eng@2026-02-11

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