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ELCOtherNot stated in judgment· [2026] KEELC 3417 (KLR)

Swaleh v Mohamed & others (Environment and Land Case E005 of 2026) [2026] KEELC 3417 (KLR)

Environment and Land Court
19 May 2026
MNMwangi Njoroge
253 words in judgment
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The bottom line

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A Malindi land court ruled that when a plaintiff withdraws a case early, both sides usually walk away paying their own legal costs.

What this practically means

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Executive summary

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This short ruling of the Environment and Land Court at Malindi, delivered by Mwangi Njoroge J on 19 May 2026, resolves the only live issue between the parties: who should pay costs after the plaintiff withdrew the suit. On 3 February 2026, at the first mention, counsel for the plaintiff, Mr. Magolo, informed the court that his client had elected to withdraw the matter. The suit was accordingly marked as withdrawn, but the parties could not agree on costs, and the question was left to the court. The judge began from the general rule in Section 27 of the Civil Procedure Act that costs follow the event unless the court orders otherwise. He observed that the withdrawal occurred before a defence was filed, so the defendants' work on the suit was minimal - only a replying affidavit to a motion dated 16 January 2026 had been filed. The court also commended the plaintiff's decision to withdraw at an early stage rather than drag all parties and the court through full litigation, in keeping with the current dispensation favouring alternative dispute resolution, and expressed the view that parties should part amicably, including on costs. Exercising its discretion, the court ordered that each party bear its own costs of the suit. The judgment contains no findings on the merits of the underlying land dispute, and no case authorities were cited.

Key legal issues

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01

Costs following a notice of withdrawal before filing of a defence

Holding

The court exercised its discretion under Section 27 of the Civil Procedure Act to order that each party bear its own costs, given the minimal work done by the defendants and the plaintiff's commendable early withdrawal.

Reasoning

The court noted the matter was withdrawn at the first mention before any defence was filed; the defendants' only work was a replying affidavit to a motion. Early withdrawal avoided dragging parties and the court through full litigation and aligned with the encouragement of alternative dispute resolution. Amicable resolution on costs was therefore appropriate.

p. 1

Legal principles established

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  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court orders otherwise, and a party who withdraws a suit at an early stage may fairly be left to bear their own costs.

Court orders

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  1. 1.Each party to bear their own costs of the suit
Jurisdiction invoked
Section 27 of the Civil Procedure Act (costs follow the event)

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, "Swaleh v Mohamed & others (Environment and Land Case E005 of 2026) [2026] KEELC 3417 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3417/eng@2026-05-19

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