Kioko v Kioko & 2 others (Environment and Land Case Civil Suit 150 of 2010) [2026] KEELC 3292 (KLR)
The bottom line
#The Environment and Land Court in Machakos ruled that a suit withdrawn in court is gone for good and cannot be reinstated.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether a withdrawn suit can be reinstated
Key legal issues
#Whether a withdrawn suit can be reinstated
The notice of motion was not merited; the suit, having been properly withdrawn on 19 October 2023 under Order 25 Rules 1 and 2, cannot be reinstated, the Rules being silent on reinstatement and the withdrawal having been formalised as a court order.
The court found that the previous counsel had implied general authority to withdraw the suit and there was no evidence of impropriety. Order 25 of the Civil Procedure Rules provides no mechanism for revoking a withdrawal once adopted as a court order; revival is only possible through a subsequent suit upon payment of costs. The court associated itself with Priscilla Nyambura Njue and Charles Kiptarbei Birech, and with the Supreme Court's decision in Salat v IEBC affirming the absolute right of withdrawal.
Whether the withdrawal of the suit was proper despite the plaintiff's claim that it was done without his instruction or knowledge
The withdrawal was proper, as the plaintiff was represented by previous counsel who had an implied general authority to withdraw the suit and there was no evidence of impropriety.
The record showed the matter had been pending for 13 years before the plaintiff's previous law firm filed a notice of withdrawal dated 15 September 2023. On 19 October 2023 previous counsel Mr. Gitonga informed the court of the intention to withdraw; defence counsel did not object save for costs. Any grievance against previous advocates lies in a complaint to the Advocates' Complaints Commission, as the 2nd defendant argued, and the application was filed inordinately late.
Legal principles established
#- A party has an absolute right to withdraw a suit before judgment, and a court cannot bar withdrawal; it may only make an order as to costs
- A suit that has been withdrawn and the withdrawal adopted as a court order cannot be reinstated; Order 25 does not provide for revocation of a withdrawal
- Once a suit is discontinued or withdrawn it ceases to exist and cannot be revived by any means, including a consent; only a fresh subsequent suit is available
Court orders
#- 1.The notice of motion dated 12 August 2025 is dismissed
- 2.Costs of the application awarded to the 2nd and 3rd defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules, and Section 19 of the Environment and Land Court Act 2011
Relief refused
#Setting aside of the orders made on 19 October 2023 withdrawing the plaintiff's suit
Order 25 of the Civil Procedure Rules is silent on reinstatement; once withdrawal is formalised as a court order it ceases to have effect and cannot be revoked
Reinstatement of the plaintiff's suit for hearing
A withdrawn suit ceases to exist and can only be revived through the filing of a subsequent suit upon payment of costs
Costs
Costs of the notice of motion dated 12 August 2025 awarded to the 2nd and 3rd defendants, as they participated in these proceedings.
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.
It finds that the notice of motion dated 12 August 2025 is not merited and hereby dismisses it, with costs to the 2nd and 3rd defendants as they participated in these proceedings.
the legal framework outlined in Order 25 of the Civil Procedure Rules is silent on the procedures for reinstating a suit after the plaintifi has filed a notice of withdrawal that has been adopted as an order of the court.
the action can only be revived through the filing of a subsequent suit upon payment of costs associated with the previously withdrawn case.
A party’s right to withdraw a matter before the court cannot be taken way. A court cannot bar a party from withdrawing his matter.
once a suit is withdrawn there is no party that exists in relation to that suit.
Issues in the judgment
#The judgment uses the plural 'we' throughout despite recording a single judge in the coram
The pleading roles are inconsistent - the movant is called 'plaintifi' but opposed by 'the 2nd and 3rd defendants', while prayers refer to 'prayer 2' among only four prayers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kioko v Kioko & 2 others (Environment and Land Case Civil Suit 150 of 2010) [2026] KEELC 3292 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3292/eng@2026-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.