https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4472

Ogalo v Abuor (Environment and Land Case E002 of 2026) [2026] KEELC 4472 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4472 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case E002 of 2026 CC Oluoch, J July 16, 2026 Between Andrew Guya Ogalo Applicant and Henry Odhiambo Abuor Respondent Ruling The Application 1.This is a ruling on a Notice of Motion application dated 9th April 2026 brought under Order 45 and 51 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3, 3A, and 80 of the Civil Procedure Act (Cap 21); Sections 16A and 19 of the Environment and Land Court Act; and Articles 3(1), 10, 20, 40, 48, 50(1) and 159(2)(d) of the Constitution of Kenya, 2010. The Applicant seeks the following orders from this Court:(a)Review and/or setting aside of the order of 4/3/2026, marking this matter as withdrawn with no order as to costs.(b)Reinstatement of this matter for hearing and determination.(c)Redesignation of the case number as ELCL OS No. E002 of 2026 and not ELCL Case No. E002 of 2026.(d)The costs of this application be in the cause. 2.The Applicant’s arguments, as set out in the supporting affidavit sworn by Andrew Guya Ogalo on 9th April 2026, are that he instituted this matter on 8th January 2026, seeking a declaration of entitlement to Land Parcel Number Kisumu/Korando/1193 by virtue of adverse possession. The Applicant avers that, although the pleadings were properly drafted as an Originating Summons in compliance with Order 37 of the Civil Procedure Rules, the case number was erroneously recorded during electronic filing as ELC Case No. E002 of 2026 instead of ELC OS No. E002 of 2026. 3.The Applicant averred that the Respondent was duly served with the pleadings on 12th January 2026 and 15th January 2026 but failed to enter an appearance or file a response. The matter was subsequently scheduled for a routine case management conference before the Deputy Registrar on 4th March 2026. 4.The Applicant further avers that on 3rd March 2026, while out of the country and unable to attend the virtual court session, he instructed a colleague, Ms Nancy Owiti, Advocate, to hold his brief. On 4th March 2026, Ms Owiti appeared before the Deputy Registrar and erroneously applied for the withdrawal of the suit with no orders as to costs. The court granted the application and marked the matter as withdrawn. 5.The Applicant contends that Ms Owiti acted without his express or implied instructions. He annexed WhatsApp correspondence and a formal demand letter dated 5th April 2026, addressed to Ms Owiti, seeking an explanation for her actions. The Applicant maintains that he intends to prosecute the matter to its logical conclusion, that the Respondent will suffer no prejudice if the matter is reinstated, and that the overriding objective of substantive justice favours reinstating and administratively redesignating the suit to correct the initial filing error. 6.The record indicates that Henry Odhiambo Abuor, the Respondent, has not responded by entering an appearance or submitting a reply despite being served with the initial pleadings and the current Notice of Motion. Analysis and Determination 7.I have carefully considered the application, the supporting affidavit, the annexures provided, and the applicable statutory and case law. Although the application is unopposed, the court is duty-bound to evaluate whether the procedural and administrative reliefs sought are tenable under the Civil Procedure Rules and the strictures of the Judiciary’s Case Tracking System (CTS). The issues arising for determination are twofold:(a)Whether the court can review, set aside the order of withdrawal, and reinstate a suit that was formally withdrawn by an advocate holding brief for the Applicant.(b)Whether the court can administratively redesignate a case number from an “ELC Case” to an “Originating Summons” (ELC OS) within the Judiciary's E-Filing system without requiring the payment of fresh fees. 8.I will begin with the prayer for the setting aside of the withdrawal and the reinstatement of the suit. The record confirms that on 4th March 2026, Ms Owiti, an Advocate of the High Court, appeared before the Deputy Registrar, acting for the Applicant. She applied to withdraw the suit, and, on the representations of an officer of the court, the court allowed the application. Order 25 Rule 1 of the Civil Procedure Rules permits a plaintiff to discontinue a suit at any time before it is set down for hearing. It provides that:“At any time before the setting down of the suit for hearing the plaintiff 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.” 9.The established jurisprudence of our courts is well settled regarding the absolute finality of such an action. I associate myself with the holding in Charles Kiptarbei Birech v Paul Waweru Mbugua [2021] eKLR, where the court held that:“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 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”. 10.In arriving at this decision, the Court above cited with approval Priscilla Nyambura Njue v Geovhem Middle East Ltd; Kenya Bureau of Standards (Interested Party) [2021] eKLR, where Justice Mativo (as he then was) observed:“Withdrawal of a suit is itself its end. The right of a plaintiff to withdraw his suit is not a divine right but a right expressly conferred upon him by Order 25 and no right is similarly conferred upon him to revoke or rescind the withdrawal. So long as he remains the plaintiff, he may do any act which he may do in that capacity; he cannot, after withdrawal of the suit resulting in the loss of the capacity, do an act which can be done only in that capacity. Put differently, there is no provision conferring the right to revoke the withdrawal and there is no justification for saying that the right to withdraw includes in itself a right to revoke the withdrawal. …The withdrawal took effect immediately the court permitted it and as observed earlier, Order 25 has no provision permitting reinstatement of a suit once the withdrawal has taken effect.” 11.Order 25 Rule 1 of the Civil Procedure Rules provides that, once a suit is withdrawn, the proceedings come to an end as against the defendants; the suit is legally dead and cannot be reinstated by an application for review. When an advocate exercises their ostensible authority to withdraw a suit in court, the court’s withdrawal order is final. The subsequent revelation of a breakdown in internal instructions between the client and counsel, or of the advocate holding the brief, does not retroactively nullify the withdrawal but rather shifts the burden of liability exclusively to the advocate in their professional capacity. Attempting to cure such breaches of instruction by pleading with the court for reinstatement ignores the finality of discontinued proceedings under Order 25 of the Civil Procedure Rules. If an advocate acts negligently or outside their instructions, the remedy lies in filing a fresh suit and, if need be, separately pursuing professional negligence proceedings against the errant advocate. 12.Regarding the second issue, the Applicant seeks the redesignation of the system-generated case number. In the era of manual court registries, correcting a misdesignated case number was a trivial clerical task. However, under the contemporary E-Filing and Case Tracking System (CTS) infrastructure, the Court lacks the back-end administrative capability to manually modify a system-generated case prefix. Reassigning a new case number, as requested, requires uploading a new set of pleadings and payment of filing fees. I therefore disallow the application. The only option available to the Applicant is to file a fresh suit. Final Orders 13.I make the following final orders:(a)The Notice of Motion application dated 9th April 2026 is hereby dismissed in its entirety.(b)The order of the Deputy Registrar dated 4th March 2026 marking the suit as withdrawn remains in force.(c)The Applicant is at liberty to file a fresh suit by way of Originating Summons.(d)As the application was unopposed, there shall be no orders as to costs. DELIVERED VIRTUALLY, SIGNED AND DATED THIS 16TH DAY OF JULY 2026.C.C. OLUOCHJUDGEIn the presence of:Court Assistant: Faith