John Kimely Birech v Alice Chepketer Chemiron & 2 others
The bottom line
#The Environment and Land Court at Kapsabet confirmed that anyone who files a court application can freely withdraw it before it is served, without paying costs.
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 withdrawal of the application dated 21st July 2026 is meritorious
Key legal issues
#Whether an unserved application may be withdrawn with no orders as to costs
Yes; the applicant has the right to withdraw and unserved respondents suffer no prejudice
Relying on the Supreme Court's decision in Robert Mutiso Lelli v Kenya Medical Training College, the court held that a party's liberty to withdraw cannot be curtailed. The application had not been served and there was no response, so no prejudice would befall the respondents. The notice of withdrawal was found merited and the application was marked withdrawn in entirety.
Legal principles established
#- A party's liberty to withdraw a matter cannot be taken away and the court must allow withdrawal where no prejudice is caused
Court orders
#- 1.The application dated 21st July 2026 is marked as withdrawn in entirety with no orders as to costs
- 2.The case is closed accordingly
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to permit withdrawal of an application; civil procedure principles on withdrawal
Relief refused
#Conservatory orders restraining the Respondents from coercing the 1st Respondent's husband to execute documents over title No. Kapsabet Municipality/116
Sought away by withdrawal of the application before inter partes hearing
Temporary injunction restraining dealing with Land Title No. Kapsabet Municipality/116
Application withdrawn in entirety
Costs
No orders 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.
the application dated 21st July 2026 is hereby marked as withdrawn in entirety with no orders as to costs and this case closed accordingly.
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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kimely Birech v Alice Chepketer Chemiron & 2 others", Case Analysis (2026). ELCLMISC. NO. E012 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5712/eng@2026-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.