[2017] KEHC 4096 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA IN BUSIA

LAND & ENVIRONMENTAL DIVISION

ELC NO. 31 OF 2012

ATTORNEY GENERAL.............................................................1ST PLAINTIFF

BUSIA DAIRY FARMERS CO-OPERATIVE SOCIETY.....…2ND PLAINTIFF

VERSUS

JAMES NDIRANGU NG’ANG’A …….……………….…..…... DEFENDANT

BENSON NG’ANG’A NDIRANGU ………..…........… INTERESTED PARTY

R U L I N G

1. The application before me is a Notice of Motion dated 16/5/2017 and filed on the same date. It was filed by the 2nd Plaintiff BUSIA DAIRY FARMERS CO-OPERATIVE SOCIETY- essentially against the 1st Plaintiff - ATTORNEY GENERAL - because the 1st Plaintiff has intimated intention to withdraw the suit. The 2nd Plaintiff is opposed to such withdrawal, hence this application. The other parties in the suit have joined the fray and this is because of actual or perceived benefits that the proposed withdrawal brings to them. The other parties are JAMES NDIRANGU NG’ANG’A (Defendant) and BENSON NG’ANG’A NDIRANGU (Interested Party).

2. The prayers in the 2nd Plaintiffs application are as follows:

Prayer 1: Notice of withdrawal of suit against the Defendant dated 22/3/2017 and all consequential orders be set aside.

Prayer 2: The costs of the application be provided for.

3. According to the 2nd Plaintiff, the proposed withdrawal is irregular as leave for withdrawal was not sought first. It would appear to be the position of the Plaintiff that as the case is part-heard, Order 25 Rules 1 and 2(2) of Civil Procedure Rules, 2010, would require that such leave be sought first. The 2nd Plaintiff complains that no explanation has been given for the sudden withdrawal of the case. It was averred too that the withdrawal jeopardises the 2nd Plaintiff’s case.

4. The 1st Plaintiff responded vide replying affidavit filed on 19/4/2017. The 1st Plaintiff asserted that the case was filed on behalf of the government and its various agencies. The 2nd Plaintiff is not one such agency. It was averred that the 2nd Plaintiff applied to join the suit and was allowed. After that, the 2nd Plaintiff was supposed to file pleadings but did not. The 2nd Plaintiff was said to have failed to do so because the principle of RES-JUDICATA would be an obstacle to it. That is why it has been litigating through the 1st Plaintiff. The 1st Plaintiff said that no brief is held for 2nd Plaintiff.

5. As pointed out earlier, the Defendant and the Interested Party also joined the fray. The Defendant first filed grounds of opposition on 16/5/2017 and later filed a replying affidavit on 19/5/2017. His position is that the application is an abuse of the Court process. He pointed out that it is the right of the 1st Plaintiff to seek to withdraw the matter. In any case, the Defendant further said, the 2nd Plaintiff was given a chance to file a case against him but failed to do so. And previous litigation between the Defendant and 2nd Plaintiff had led to eviction of 2nd Plaintiff from the suit land.

6. On his part, the Interested Party filed a replying affidavit on 16/5/2017. His response is in general agreement with that of 1st Plaintiff and Defendant.

7. The application was canvassed by way of written submissions. The 2nd Plaintiff’s submissions were filed on 23/5/2017. It was reiterated that the 1st Plaintiff could not withdraw the suit without seeking leave. The 2nd Plaintiff submitted however that should the Court find otherwise, then the suit should be allowed to proceed to its conclusion between itself and the Defendant. This position is taken because the suit is said to be a joint one.

8. The 1st Plaintiff’s submissions were filed on 19/4/2017. According to the Plaintiff, the application is defective and incompetent. The application was also said to be aimed at vexing the other parties and inordinately prolong an already concluded matter. The rest of the 1st Plaintiff’s submissions is actually a re-statement of what the replying affidavit contains.

9. The Defendant submissions were filed on 19/5/2017. It was pointed out that the 2nd Plaintiff is not a proper party in this suit. The Court was urged to dismiss the suit. The Interested Party also asked for dismissal. His submissions were filed on 18/5/2017. According to the Interested Party, the application herein is only meant to circumvent the cause of justice by delaying the conclusion of the suit.

10. I have considered the application, the various responses made, and the submissions of all parties. It is clear that the 2nd Plaintiff would wish the 1st Plaintiff to proceed with the case against the 1st Plaintiff’s wish. When a plaintiff comes to court to agitate for his rights, he decides and designs the scope of his case. No one else can do that for the Plaintiff. If such plaintiff decides not to pursue his rights, no one, not even a court of law, can force him to pursue them.

11. In our Civil Procedure Act and/or rules, there is no provision enjoining the Court to refuse permission to withdraw a suit. There is no provision too to compel a plaintiff to proceed with a suit. And the principle underlying this position is simple: INVITO BENEFECIUM NON DATUR,which is legal lingo for the position that the law confers upon a man no rights or benefits which he does not desire.

12. The 1st Plaintiff clearly does not desire to pursue the case. The 2nd Plaintiff obviously wants the 1st Plaintiff to continue with the case. The fact of the matter is that the position of the 2nd Plaintiff is misplaced in law. The correct position in law is that no court can revoke a withdrawal.

13. It appears to me that the 2nd Plaintiff was not sure of the correctness of its position and that is why it urged the Court to allow it to continue with its case in case it allows the application. This request is again misplaced. Such a prayer is in the first place not included in the application; it only comes in the submissions. Then secondly, it is not for the court to decide for the 2nd Plaintiff what to do. It is upon the 2nd Plaintiff to weigh up its options and decide what to do. It is as simple as that. Besides, the 2nd Plaintiff has been proceeding with the case and has not been disallowed to do so. The request is therefore un-necessary.

14. The various parties in this case made wide ranging remarks both in their responses and submissions. Most of these remarks were un-necessary. The facts on which the application was premised were simple. And the law is also simple as I have stated in this ruling. That is why I have avoided responding to some of the remarks.

15. The upshot, in light of the foregoing, is that the application herein is misplaced and unmeritorious. I therefore dismiss it with costs.

Dated, signed and delivered at Busia this 26th day of July, 2017.

A. K. KANIARU

JUDGE

In the Presence of:

1st Plaintiff: ...............................................................................

2nd Plaintiff: ..............................................................................

Defendant: ...............................................................................

Interested Party: ......................................................................

Counsel: ...................................................................................