Samuel Kintalele Kiparen & 7 others v Timothy T. Saiyori & 5 others

MERUKANA INVESTMENTS LIMITED………….………………8TH PLAINTIFF -VERSUSTIMOTHY T. SAIYORI……………………….……..………….1ST DEFENDANT SAMSON N.SAIYORI………………………………………….2ND DEFENDANT GEORGE OLUBUTI SANYORIRI……………………………..3RD DEFENDANT JANE WAITHIRA MWANGI (on behalf of 20 – others purchasers)…………………………………………..…4th DEFENDANT LAND REGISTRAR NGONG…………………………...……..5TH DEFENDANT ATTORNEY GENERAL…………………………………...……6TH DEFENDANT RULING __________________________________________________________________ RULING ELC NO. 139/2020 2

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(On the application by the 6th and 7th Plaintiffs to withdraw their suit) 1. On 13th May 2026, Ms. Muthiani Advocate, holding brief for Mr. Morara for the 6th and 7th plaintiffs informed the court that she had instructions to withdraw the suit against the 1 st, 2nd, 3rd and 4th defendants with no order as to costs. In rejoinder, Mr. Muriithi, Advocate holding brief for Mr. Thangei for the 4 th defendant, stated that he had no objection to the withdrawal of the suit but demanded costs. He further informed the court that the 4 th defendant had a counterclaim against the plaintiffs which was undefended. 2. The request by the advocate for the 6 th and 7th plaintiffs poses a dilemma of great magnitude, for the various reasons I will discuss here below; 3. First and foremost this suit was filed by eight (8) plaintiffs jointly against all the 6 defendants. The plaintiffs were all represented by one law firm. On 14th October 2025, however, this court allowed the application by the law firm of Morara Apiemi and Nyangito advocates seeking leave to cease from acting for the 1 st – 5th plaintiffs and the 8th plaintiffs. __________________________________________________________________ RULING ELC NO. 139/2020 3

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4. Ms. Muthiana can therefore speak on behalf of the 6 th and 7th plaintiffs only. She can no longer purport to speak on behalf of the 1st -5th plaintiffs and the 8th plaintiffs. 5. Regarding the intention of the 6 th and 7th plaintiffs to withdraw their suit, I am guided by the pronouncement of the Supreme Court of Kenya in Ref. No. 1 of 2014 – Council of Governors –vs- Senate & another (2014) eKLR, where the court explicitly stated that, “…the right to withdraw, discontinue proceedings or withdraw a notice of appeal respectively ought to be allowed as a matter of right subject to any issue of costs which can be claimed by the respondents if any…” 6. The issue whether a court should award costs upon withdrawal of a matter before it was settled too by the Supreme Court of Kenya in DPP-vs- Michael Sistu Mwaura Kamau & 4 others (2020) eKLR, where the court stated that, “It emerges that the award of costs would normally be guided by the principle that ‘costs follow the event’; the effect being that the party who calls forth __________________________________________________________________ RULING ELC NO. 139/2020 4

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the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously –exercised discretion of the court, accommodating the special circumstances of the case, while being guided by the ends of justice.” 7. In the case of Jasbir Singh Rai & 3 others –vs- Jarlochan Singh Rai & 4 others, the apex court discussed discretion and how it ought to be exercised stating that; “…although there is ……….. good sense in the basic rule of costs- that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows constitute therefore, an that unchanging costs do not consequence in law, of legal proceedings - a position well illustrated by the considered opinions of this court in other cases”. __________________________________________________________________ RULING ELC NO. 139/2020 5

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8. In the circumstances of this case, the court takes note that this matter has prior to the application for withdrawal by the 6 th and 7th defendants been set down for hearing. It was indeed adjourned at the instance of the plaintiffs. While the court upholds the right of the 6th and 7th plaintiffs to withdraw their suit against the defendants, there is absolutely no reason to exonerate them from paying the costs. Consequently, the application to withdraw the suit against the defendants by the 6 th and 7th plaintiffs is allowed but with costs to the defendants. 9. That said, the case by the 1st – 5th plaintiffs and the 8th plaintiffs remain. So is the case by Dr. Moni Wekesa and that of Roselyn Sisiala Wekesa. It remains and is not affected by the withdrawal of the case by the 6th and 7th plaintiffs. The same position applies to the counterclaim. 10. It is trite that a counterclaim is a stand-alone suit. The defendant instituting the counterclaim becomes the plaintiff for all intents and purposes. 11. The Court of Appeal is County Government of Kilifi –vs- Mombasa Cement Limited (2017) eKLR, upheld the above position stating that; __________________________________________________________________ RULING ELC NO. 139/2020 6

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“…(A counterclaim)…breathes its own life and can bring forth the life of a judgment or decision of a court independent of the (main) suit.” 12. The Court of Appeal embraced the holding in Beatrice Mumbi Wamahiu –vs- Mobil Oil Kenya Limited (2011) eKLR, to the effect that, “…the withdrawal of the main suit did not affect the counterclaim. A counterclaim is treated as the separate suit under Section 35 of the Limitation of Actions Act hence its survival cannot be pegged on the pendency of the primary suit”. Final disposition. 13. The final disposition is that; A. The case by the 6th and 7th plaintiffs is hereby marked as withdrawn with costs to the defendants. B. The case by the 1st- 5th plaintiffs and the 8th plaintiff as well as that by Dr. Moni Wekesa and Roselyn Sisiala Wekesa shall be set down for hearing forthwith. __________________________________________________________________ RULING ELC NO. 139/2020 7

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It is so ordered. Dated Signed and Delivered Virtually this 29th September, 2026. Day of M.D. MWANGI JUDGE In the virtual presence of: Mr. Muriithi h/b for Mr. Thangei for the 4 th Defendant Ms. Kalama h/b for Mr. Morara for the 6th and 7th Plaintiffs Ms. Wekesa for the Plaintiffs in ELCC 46 of 2026 N/A by the 1st – 5th and 8th Plaintiff Court Assistant: Alex M.D. MWANGI JUDGE __________________________________________________________________ RULING ELC NO. 139/2020 8

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