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ELCOtherLand Originating Summons E004 of 2025

Busiega v Ng'arng'ar & another

Environment and Land Court
22 September 2026
GOG M A Ongondo
514 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's adverse possession claim was withdrawn with costs after the court confirmed every litigant has the right to abandon their own case.

What this practically means

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Executive summary

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The plaintiff, Samuel Shijinga Busiega, instituted an Originating Summons dated 24th March 2025 against Jane Jemaiyo Ng'arng'ar and the Chief Land Registrar Nandi, claiming to have acquired parcels Nandi/Koibarak 'B'/781 and 815 by adverse possession. The defendants, through Rotich, Langat and Partners Advocates, opposed the summons by a replying affidavit sworn on 30th June 2026 and a preliminary objection of even date. Before the hearing, the plaintiff filed a notice of withdrawal dated 22nd July 2026, duly served. Counsel for the plaintiff (M/s Adeya of Amasakha and Company Advocates) sought leave to withdraw the suit. Mr. Moses Rotich Langat, for the defendants, confirmed service and raised no objection, but sought costs, noting the plaintiff had previously filed Kapsabet ELCC No. E032 of 2023 and Eldoret High Court Civil Appeal Nos. 457 and 488 of 1996, all withdrawn, and urging that costs be awarded to avoid misuse of court process and resources. Plaintiff's counsel ultimately conceded the suit could be withdrawn with costs to the defendants. Framing the sole question as whether the withdrawal was merited, Ongondo J applied the Supreme Court's decision in Robert Mutiso Lelli v Kenya Medical Training College & 2 others, holding that a party's liberty to withdraw a matter cannot be taken away and no prejudice arises from withdrawal. Since the parties agreed costs be borne by the plaintiff, the court marked the entire suit as withdrawn with costs to the defendants and closed the case.

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's withdrawal of the suit is merited

Key legal issues

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Whether the notice of withdrawal dated 22nd July 2026 should be allowed

Holding

Yes - withdrawal is merited; a party has the right to withdraw its suit and the parties agreed costs be borne by the plaintiff

Reasoning

The court applied the Supreme Court's decision in Robert Mutiso Lelli, holding that a party's liberty to withdraw a matter cannot be taken away and the court must allow withdrawal if the party deems fit. Both counsel confirmed service of the notice of withdrawal and agreed the suit be withdrawn with costs to the defendants, so no prejudice arose.

p. 2

Legal principles established

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  • A party's liberty to withdraw a matter cannot be taken away; the court must allow withdrawal where the party deems fit, subject to costs

Court orders

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  1. 1.The suit commenced by originating summons dated 24th March 2025 is marked as withdrawn in its entirety with costs to the defendants

The bench

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

GO
majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court Act, original jurisdiction over land disputes (not expressly cited in the ruling)

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.

Accordingly, the instant suit commenced by way of an originating summons dated 24th March 2025 in entirety, is hereby marked as withdrawn with costs to the defendants. So, case closed.
p. 2Final orders - withdrawal of suit
Indeed a party's liberty to withdraw a matter cannot be taken away and the court has to allow a party who has approached the court to withdraw such a matter, if he deems so fit to do
p. 2Right to withdraw proceedings

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, "Busiega v Ng'arng'ar & another", Case Analysis (2026). Land Originating Summons E004 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5603/eng@2026-09-22

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