[2023] KEELC 20473 (KLR)
The court found that since the suit had not been set down for hearing, the plaintiff was entitled to withdraw it as of right under Order 25 Rule 1 of the Civil Procedure Rules. The court considered the circumstances of the withdrawal, including the assertion that the suit was filed without valid instructions, and...
Source-derived case information.
- Citation
- [2023] KEELC 20473 (KLR)
- Parties
- Plaintiff: Damah Alliance Limited; Defendant: David Muthami Muthee; Defendant: Martin Ngige
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E204 of 2023
- Procedural Posture
- Environment and Land Case / Ruling on Notice of Withdrawal Before Hearing
- Outcome
- Suit withdrawn with no order as to costs.
- Judges
- EK Wabwoto
- Legal Topics
- Withdrawal of Suit, Costs Orders, Procedure Before Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damah Alliance Limited
Plaintiff
David Muthami Muthee
Defendant
Martin Ngige
Defendant
Procedural Posture
Environment and Land Case / Ruling on Notice of Withdrawal Before Hearing
Legal Issues
- 1 Whether the plaintiff is entitled to withdraw the suit before it is set down for hearing without leave of court.
- 2 Whether the withdrawal should be subject to any terms, including costs.
Ratio Decidendi
The court found that since the suit had not been set down for hearing, the plaintiff was entitled to withdraw it as of right under Order 25 Rule 1 of the Civil Procedure Rules. The court considered the circumstances of the withdrawal, including the assertion that the suit was filed without valid instructions, and determined that it was just to allow the withdrawal with no order as to costs. The defendants did not object to the withdrawal itself, and the only issue was costs, which the court declined to award.
Court Disposition
Suit withdrawn with no order as to costs.
Orders
- The plaintiff's suit is withdrawn.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
Damah Alliance Limited v Muthee & another (Environment & Land Case E204 of 2023) [2023] KEELC 20473 (KLR) (2 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20473 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E204 of 2023
EK Wabwoto, J
October 2, 2023
Between
Damah Alliance Limited
Plaintiff
and
David Muthami Muthee
1st Defendant
Martin Ngige
2nd Defendant
Ruling
1. The plaintiff herein Damah Alliance Limited instituted this suit vide a plaint dated 8th June, 2023 through the law firm of Chesikaw & Kiprop Advocates.
2. Subsequently thereafter and having served the defendants herein, the plaintiff filed a notice of change of Advocates and appointed the law firm of Rene & Hans LLP Advocate. The said Advocates filed a Notice of Withdrawal of the entire suit with no orders as to costs. The said notice was dated September 14, 2023. The reasons stated in the said notice were that the firm of Chesikaw & Kiprop Advocates had filed the suit without any lawful and valid instructions by the Directors of the Plaintiff and in the circumstances, the said suit is nullity ab initio.
3. On September 18, 2023, when this matter came up for directions, the defendants who were present had no objection to the withdrawal of the same save for costs as was prayed by the 1st defendant.
4. Order 25 of the Civil Procedure Rules provides for withdrawal of suits as follows;“(1)(1)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.(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 Plaintiff 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.”
5. The right to withdraw a suit under order 25 rules 1 and 2(1) is not fettered by any conditions and a party who intends to withdraw their suit, has an absolute right to do so. However, under order 25 rule 2(2), withdrawal of a suit requires permission of the court and the withdrawal may be subject to terms that the court considers just, including payment of costs or filing of any other suit.
6. This court has considered the said notice of withdrawal filed by the plaintiff. The court has further considered the circumstances in respect to the said withdrawal. This suit was yet to be set down for hearing and in the circumstances, this court shall proceed to allow the withdrawal of the plaintiff’s suit filed herein with no order as to costs.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF OCTOBER, 2023. E.K. WABWOTOJUDGE