[2017] KEELC 1751 (KLR)
The court held that the plaintiff's notice of withdrawal was invalid because the suit had already been set down for hearing on 4th November, 2015. Order 25 Rule 1 of the Civil Procedure Rules only permits withdrawal by notice before the suit is set down for hearing. Since the procedural threshold was not met, the...
Source-derived case information.
- Citation
- [2017] KEELC 1751 (KLR)
- Parties
- Plaintiff: Danson Miano Kangangi; Defendant: Njogu Ncekebu; Defendant: Esther Ciakuthi Njogu; Defendant: Bonface Mbogo Njogu; Defendant: Phineas Mutembei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 131 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Notice of Withdrawal
- Outcome
- Plaintiff's notice of withdrawal declared void ab initio; suit to proceed for directions.
- Judges
- FM Njoroge
- Legal Topics
- Withdrawal of Suit, Order 25 Rule 1, Setting Down for Hearing, Procedural Invalidity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Danson Miano Kangangi
Plaintiff
Njogu Ncekebu
Defendant
Esther Ciakuthi Njogu
Defendant
Bonface Mbogo Njogu
Defendant
Phineas Mutembei
Defendant
Procedural Posture
Land and Property Suit / Ruling on Notice of Withdrawal
Legal Issues
- 1 Whether the plaintiff's notice of withdrawal of suit is valid under Order 25 Rule 1 of the Civil Procedure Rules after the suit was set down for hearing.
- 2 Whether the withdrawal notice filed after the suit was set down for hearing has any legal effect.
Ratio Decidendi
The court held that the plaintiff's notice of withdrawal was invalid because the suit had already been set down for hearing on 4th November, 2015. Order 25 Rule 1 of the Civil Procedure Rules only permits withdrawal by notice before the suit is set down for hearing. Since the procedural threshold was not met, the purported withdrawal was void ab initio. The court therefore declared the notice of withdrawal filed on 21st June, 2017 as having no legal effect and ordered that the matter proceed for directions.
Court Disposition
Plaintiff's notice of withdrawal declared void ab initio; suit to proceed for directions.
Orders
- The intended withdrawal of the suit vide the notice dated 25.4.2017 and filed on 21.6.2017 is declared void ab initio.
- Notice to issue to parties to appear in court for directions on 21st November, 2017.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 131 OF 2017
FORMERLY MERU ELC CASE NO. 38 OF 2011 (O.S)
DANSON MIANO KANGANGI….…………….…….................…..PLAINTIFF
VERSUS
NJOGU NCEKEBU…………..….……………………………....1ST DEFENDANT
ESTHER CIAKUTHI NJOGU…………………………………..2ND DEFENDANT
BONFACE MBOGO NJOGU……………………………..……3RD DEFENDANT
PHINEAS MUTEMBEI ……………………………………….....4TH DEFENDANT
RULING
1. This court has received a Notice of withdraw said to be pursuant to Order 25 Rule 1 of the Civil Procedure Rules which states as follows:
“RE: NOTICE PURSUANT TO ORDER 25 RULE 1 OF C.P RULES OS NO. 38 OF 2011 – DANSON MIANO KANGANGI VERSUS NJOGU NCEKEBU AND 3 OTHERS.
“The above matter refers
“Under instructions from our above named client, the plaintiff, we hereby wholly withdraw this suit against the defendants/respondents with no order as to costs.”
Yours faithfully,
FOR LEORNRD K. ONDARI & CO.
L.K. ONDARI
ADVOCATE.
2. Order 25, Rule 1 states as follows:
“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 the claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.”
3. Court records shows that this suit was set down for hearing to take place on 4th November, 2015. The setting down for hearing, by dint of order 25, rule 1, invalidates the plaintiffs Notice of Withdrawal of this suit dated 25th April, 2017 and filed at the registry on 21. 6.2017.
4. Consequently, this court declares the intended withdrawal of this suit vide the notice dated 25. 4.2017 but filed at the registry on 21. 6.2017 void ab inition.
5. It is ordered that Notice be issued to the parties to come to court for directions on 21st November, 2017.
Delivered in open court at Chuka this 27th day of September, 2017 in the presence of:
CA: Ndegwa
Parties absent
P.M. NJOROGE
JUDGE