Kioko v Kioko & 2 others (Environment and Land Case Civil Suit 150 of 2010) [2026] KEELC 3292 (KLR)

3. The 2nd defendant opposed it by way of the replying afidavit of his counsel, Stanley Muema, deposed on 22 October 2025. Concisely, counsel informs the court that the suit was scheduled for a pretrial conference, but the plaintifi's previous advocates informed the court of the plaintifi's decision to withdraw the suit, as evidenced by the properly filed notice of withdrawal. As a result, the suit was marked as withdrawn, with costs awarded to the defendants. After the withdrawal, the 2nd defendant filed its bill of costs (BOC), dated 30th April 2024 and later amended on 7th February 2025, for taxation by the taxing oficer. 4. However, the plaintifi has now filed this application solely to delay and frustrate any potential execution that may follow the taxation of the BOC. Further, if the plaintifi's previous advocates acted without his instructions, as alleged, it is the plaintifi's responsibility to lodge a complaint with the Advocates' Complaints Commission (ACC). Lastly, the motion has been filed inordinately late. By the replying afidavit of Onyango Omogo, deposed on 3 September 2025, the 3rd defendant challenged the motion and reiterated counsel Muema’s assertions, which this court need not repeat. 5. The motion is canvassed by written submissions. The plaintifi’s submissions, filed by its law firm on record, Ms. D.K Muema & Co. Advocates, are dated 9 April 2026. As for the 2nd defendant, its law firm on record, Ms. B.M Mung'ata & Co. Advocates, filed written submissions dated 27 April 2026. Lastly, the 3rd defendant’s submissions were filed by its law firm on record, Ms. Ombok & Owuor Advocates LLP, dated 24 April 2026. Accordingly, having carefully considered the motion, its grounds, the afidavits, the rival submissions, and guided by the law and judicial precedents, the single issue for determination is whether a withdrawn suit can be reinstated, and we address it. 6. This issue was addressed only by the 2nd and 3rd defendants. From the record, this matter had been pending in court for 13 years before the plaintifi, through his previous law firm on record, filed a notice of withdrawal of the suit dated 15 September 2023, thereby withdrawing the consolidated cases against the defendants. His actions were permissible and were statutorily anchored in Order 25, Rules 1 and 2 of the Civil Procedure Rules, which provide as follows: “ [Order 25, rule 1] At any time before the setting down of the suit for hearing the plaintifi may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action. 7. 8. Discontinuance [Order 25, rule 2] (1) Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all the parties. (2) Where a suit has been set down for hearing the court may grant the plaintifi leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just. (3) The provisions of this rule and rule 1 shall apply to counterclaims.” This legal provision has been the subject of legal interpretation. In Priscilla Nyambura Njue v Geovhem Middle East Ltd; Kenya Bureau of Standards (Interested Party) [2021] KEHC 13341 (KLR), which has been relied upon by both the 2nd and 3rd defendants, the court held that the right provided under Order 25 Rules 1 & 2 (1) is not fettered by any conditions as a plaintifi has the absolute right to exercise a withdrawal at his convenience at any time before the judgment is passed. This court https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3292/eng@2026-06-02 2

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associates itself with this persuasive decision, which resonates with the Apex court’s decision in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), which held: “ 90. 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. All that the court can do is to make an order as to costs where it is deemed appropriate.” 9. Thus, when the matter was brought before this court on 19 October 2023, the previous counsel for the plaintifi, Mr. Gitonga, informed the court of the plaintifi's intention to withdraw the suit, and the defence counsel present in court did not object, save for payment of the costs of the suit. The court subsequently marked the suit as withdrawn and awarded costs to the defendants for their participation in the proceedings. Notably, the matter is now subject to taxation proceedings before the taxing oficer for the assessment and eventual settlement of those costs. 10. Having laid the legal basis for withdrawal and the surrounding circumstances of the withdrawal of the suit, which was proper as the plaintifi was represented by previous counsel who had an implied general authority to withdraw the suit, and there is no evidence of impropriety, we now revert to our core issue for determination. 11. The 2nd and 3rd defendants argue that a suit that has been withdrawn cannot be reinstated. Indeed, this court concurs with this position and expressly finds that 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. In essence, once the withdrawal is formalised as a court order, it ceases to have any efiect, as the Order does not provide for the revocation of a withdrawal. 12. This court interprets this Order, particularly Rule 4, to mean that the action can only be revived through the filing of a subsequent suit upon payment of costs associated with the previously withdrawn case. Additionally, the court is permitted to stay the proceedings of the subsequent suit until such costs have been duly paid in relation to the withdrawn suit. Our courts are abounding with jurisprudence on this issue. In Priscilla Nyambura (Supra), it was held: “ The withdrawal is complete or efiective as soon as it takes place. The right to revoke the withdrawal can only be allowed by the legislature by expressly providing so in the rule and not by the courts. In the same vein, the rules do not confer the court with power to reinstate a suit once withdrawn. Order 25 Rule 1 provides that the withdrawal shall not be a defence to any subsequent action. Before me is not a subsequent action, but the same suit. 13. Similarly, Charles Kiptarbei Birech v Paul Waweru Mbugua & another [2021] KEELC 394 (KLR), the court had this to say: “ 19. Of importance to note is that the Rules that provide for the discontinuance or withdrawal of a suit do not provide for the revocation of withdrawal notice or the setting aside of the suit. And once a suit is discontinued in whichever manner howsoever, it ceases to exist. A party cannot breathe life into it by whichever means, not even by a consent setting aside the orders of withdrawal. This is because, once a suit is withdrawn there is no party that exists in relation to that suit. The existence of a suit can be equated to the existence of light from a bulb: it only exists if there is an electric current and the gadget known as “bulb”. Once the either the light or the bulb cease to be in contact, the light goes out and in its place is darkness. The only way to get light again in that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3292/eng@2026-06-02 3

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bulb is to supply current to it. The light that comes into existence again it not the continuation of the one that went out: it is new.” 14. Given the above and guided by the law and judicial precedent, this court need not say more. 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. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 2ND DAY OF JUNE, 2026. HON. A. Y. KOROSS JUDGE 02.06.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms. Kanja Court Assistant. Mr. D. K. Muema for plaintifi/applicant. Mr. S. Muema for the 2nd defendant. Mr. Glenn Innocent for 3rd defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3292/eng@2026-06-02 4

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