https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9837

Deceased v Aster Healthcare Limited & another (Civil Case E323 of 2025) [2026] KEHC 9837 (KLR) (Civ) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 9837 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E323 of 2025 SN Mutuku, J June 24, 2026 Between Jack One Star Machika (Suing as the Spouse of the Deceased) Plaintiff and Aster Healthcare Limited 1st Defendant Kenyatta University Funeral Home 2nd Defendant Ruling Background 1.Jack One Star Machika (the Plaintiff) instituted the present suit in his capacity as the spouse of Mary Kita Ambaka (the deceased) by way of a Plaint dated 27th November 2025 in which he sought an injunction and declaration orders and costs of the suit and interest, against Aster Healthcare Limited and Kenyatta University Funeral Home (the 1st and 2nd Defendants), in respect of a claim for unlawful detention of the remains of the deceased as security for payment of pending hospital bills and mortuary fees. 2.The plaint was accompanied by an application of like date in which the Plaintiff sought mandatory injunctive orders restraining the Defendants from further detaining the remains of the deceased and further compelling them to unconditionally release the said remains to the Plaintiff. 3.The 1st Defendant raised a Preliminary Objection (PO) dated 4th December 2025 seeking to challenge both the suit and the application on the ground that the Plaintiff had filed them in the absence of the requisite letters of administration. The PO was determined by this court and was dismissed. 4.On 15th December 2025, when the application was fixed for hearing, the parties recorded the following consent:“By consent of the parties, the Plaintiff deposits a sum of Kshs.100,000/- to the 1st Defendant by close of business on 15th December 2025, in exchange for the release of the original burial permit to the Plaintiff and the release of the body of the deceased to the Plaintiff upon payment of the mortuary charges by the Plaintiff.That the undisputed bill as at 17th October 2025 shall be settled by the Plaintiff in monthly instalments of Kshs. 50,000/- effective on or before the 31st January 2026 and thereafter, on or before the last day of each subsequent month, until payment in full.” 5.The court fixed the matter for mention on 16th December 2025 on which date, it was confirmed that the Plaintiff had paid the earlier agreed sum of Kshs. 100,000/- and that the burial permit had been released to him. Consequently, the application dated 21st November, 2025 was compromised by consent of the parties in terms of the earlier consent recorded and adopted by the court as an order of the court on 15th December 2025. The Defendants were directed to file their pleadings within 21 days thereof. The matter was scheduled for case management before the Deputy Registrar on 10th February 2026. 6.Sometime thereafter, the 1st Defendant filed a statement of defence and counterclaim dated 4th February 2026 in which the 1st Defendant denied the allegations of the Plaint and sought Kshs. 1,539,103/- being the outstanding hospital bills incurred during the course of the deceased’s medical treatment between 18th October 2025 and 30th October 2025 when she passed on. 7.The record shows that the 2nd Defendant never entered appearance in the matter. The Notice of Withdrawal 8.The record shows that the Plaintiff filed a Notice of Withdrawal of the Suite dated 4th February 2026 indicating his intention to entirely withdrawn the suit herein. 9.The 1st Defendant filed Grounds of Opposition dated 9th February 2026 challenging the Notice of Withdrawal of the suit. The 1st Defendant raised the following grounds:i.That the suit has a partial judgment in favour of the 1st Defendant by virtue of the consent recorded in court on 15th December 2025.ii.That the Plaintiff has failed to comply with the order of the court issued on 15th December 2025 and confirmed on 16th December 2025 in respect of payments of undisputed amounts due to the 1st Defendant. Instead of honoring his payments, he seeks to withdraw and terminate the suit.iii.That the 1st Defendant has a pending counterclaim against the Plaintiff.iv.That the Notice of Withdrawal is an outright abuse of the court process. Oral Submissions 10.Parties were directed to argue the emerging issues on the Notice of Withdrawal and issue of costs through oral submissions. 11.Mr. Masinde, counsel for the Plaintiff, argued that his client wishes to withdraw the suit under Order 25, Rule 1 of the Civil Procedure Rules (CPR) hence the Notice of Withdrawal and that the Plaintiff has complied with the requirements set out in the aforesaid provision. Mr. Masinde relied on the Plaintiff’s list and bundle of authorities dated 12th May 2026 in urging the court to allow the withdrawal of the suit and argued that the Plaintiff is at liberty to withdraw his suit, which liberty ought not to be denied or limited; that at the time of filing the Notice of Withdrawal, the 1st Defendant had not filed its pleadings and that the time stipulated for filing pleadings had since lapsed in any event and that the 1st Defendant’s pleadings were filed in a matter that had become non-existent. 12.On the subject of costs, Mr. Masinde submitted that costs follow the event, unless there are good reasons for the court to order otherwise and that in the circumstances, the court ought to order each party to bear its own costs of the withdrawn suit. 13.On the other hand, Mr. Musuwe, advocate for the 1st Defendant, contended that the Notice of Withdrawal constitutes an abuse of the court process since there is a partial judgment in favour of his client pursuant to the consent order recorded between the parties; that furthermore, the 1st Defendant is yet to receive the payments stipulated in the terms of the recorded consent. 14.Counsel, contended, further, that Order 25 of the CPR does not cater for a situation where a suit is withdrawn while there are still orders in place requiring compliance and that in such circumstances, the court is at liberty to decline to allow a withdrawal. 15.Counsel submitted that it remains uncertain whether the Plaintiff will honour his obligations under the consent order if the withdrawal is allowed; that in addition, the 1st Defendant will have no clear way of pursuing execution against the Plaintiff if the suit is withdrawn and the Plaintiff defaults, since the court will become functus officio upon the said withdrawal and will not be able to supervise the Plaintiff thereafter, as regards the consent judgment and that in the interest of justice and in line with Section 3A of the Civil Procedure Act (CPA), the court ought to decline the withdrawal of this suit. 16.In support of those submissions, Mr. Musuwe cited Beijing Industrial Designing & Researching Institute v Lagoon Development Limited [2015] KECA 365 (KLR) found in the 1st Defendant’s list and bundle of authorities dated 12th May 2026, where the Court of Appeal held that the court is at liberty to exercise its inherent power in disallowing the withdrawal of a matter as a means of abusing the court process or defeating the ends of justice. 17.Counsel further submitted that the counterclaim was filed before close of pleadings and that the 1st Defendant has since complied with pre-trial directions. He urged the court to not take away his client’s right to be heard on the counterclaim. 18.On the issue of costs, counsel submitted that the Plaintiff be given specific timelines to pay the judgment sum plus costs, failing which default judgment shall be entered against him and that costs ought to be determined before a withdrawal can be allowed. 19.In a rejoinder, Mr. Masinde argued that the consent on record can give rise to a preliminary decree which is enforceable. He additionally argued that some of the authorities constituting the 1st Defendant’s bundle are distinguishable since they were decided within the context of a stay of execution, which is not similar to what is being sought here. That furthermore, in the Beijing Industrial Designing & Researching Institute v Lagoon Development Limited case, the withdrawal in question was filed in an attempt to evade contempt of court proceedings. Determination 20.I have carefully considered the Notice of Withdrawal, the Grounds of Opposition and the rival oral arguments as well as the respective authorities relied upon. 21.From the contents thereof, the Notice of Withdrawal is anchored on Order 25, Rule 1 of the CPR, which expresses 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.” 22.From the record, it is clear that the Notice of Withdrawal herein was filed before the suit was set down for hearing. However, that notwithstanding, I have considered the arguments both supporting and opposing the Notice of Withdrawal. 23.It is generally accepted that a party is at liberty to withdraw a suit if he or she so wishes, as was reaffirmed by the Supreme Court in the case of Robert Mutiso Lelli v Kenya Medical Training College & 2 Others- Petition (Application) No. 10 of 2021, listed in the Plaintiff’s bundle of authorities, where the Court reasoned that a party’s liberty to withdraw a matter cannot be taken away from him or her. Nevertheless, it is noteworthy that the Supreme Court acknowledged in the said matter, that a substantive application is required to be filed in that respect. 24.On the flip side, it is noteworthy that the withdrawal or discontinuance of a suit causes both the suit and plaintiff to cease to exist, and renders the court functus officio in the matter. This was the position taken by the court in the case of Madison General Insurance Company Limited v Kipkosgei [2025] KEHC 11921 (KLR) where the Court stated that:“The applicable provisions of the law on withdrawal of suits is Order 25 Rule 1 of the Civil Procedure Rules. The anchor principles are articulated in the case of Smt. Rais Sultana Begam v Abdul Qadir & Others which held:“The consequence of an act of withdrawal is that the Plaintiff ceases to be a Plaintiff before the Court, if he is the only Plaintiff and withdraws the whole of the suit, the suit comes to an end and nothing remains pending before the Court, if he withdraws only a part of the suit that part goes out of the jurisdiction of the court and it is left with only the other part. This is a natural consequence of the act; a further consequence imposed by sub rule (3) is that he cannot institute a fresh suit in respect of the subject matter. He becomes a subject to this bar as soon as he withdraws the suit. It follows as a corollary that he cannot revoke or withdraw the act of withdrawal. If he absolutely barred from instituting a fresh suit, it means that he is absolutely barred from reviving his status as a Plaintiff before the Court.It stands reason that when a withdrawal the Plaintiff ceased to be a party and the Court ceased to have jurisdiction over the suit and thus become functus officio nothing but a fresh suit can again invest the Court with jurisdiction over it. As far as the withdrawn suit is concerned the suit is at an end and no further proceedings can be in it; the suit and the Plaintiff do not exist and no application such as an for revoking the withdrawal can be made in the suit or by the Plaintiff.” ” 25.In this matter, the record is clear that prior to the Notice of Withdrawal, the parties herein entered into a consent thereby compromising the application dated 21st November 2025 filed by the Plaintiff. The said consent was adopted as an order of the court. Contrary to the arguments by the 1st Defendant, the said consent was not made within the context of a judgment compromising the suit: rather, it merely constituted a consent order. 26.There is nothing on the record to indicate that the terms of the said consent have been entirely complied with or otherwise fulfilled. Similarly, the said consent has not been set aside by the court for whatever reason. It is thus evident that if the Plaintiff is allowed to withdraw his suit, the same will cease to exist, including the consent order currently in place. 27.I therefore agree with the position taken by the 1st Defendant, that if the present suit is withdrawn and there is a default on the part of the Plaintiff with respect to any of the terms of the consent order, it will have no legal recourse against the Plaintiff thereafter, arising from the consent order. 28.In my considered view therefore, much as a party is at liberty to withdraw his or her claim, the circumstances of the present matter are not suitable for allowing an automatic withdrawal of the Plaintiff’s claim, in view of the terms of the existing consent order. 29.Separately and on the issue whether the 1st Defendant filed its pleadings within the stipulated timelines, going by the record it is clear that when the parties appeared before the court on 16the December 2025, directions were given for the filing of the parties’ respective pleadings within 21 days thereof, paving way for pre-trial directions on 10th February 2026. 30.It is apparent from the record that the 1st Defendant filed its statement of defence and counterclaim on or about 4th February 2026 being the same date on which the Plaintiff’s Notice of Withdrawal was filed. I note that although the 1st Defendant’s pleadings were filed outside the timelines given by this court, the pre-trial directions were yet to be undertaken in this matter and further that, the pleadings had not yet closed. For the foregoing reasons, I will and do hereby exercise my discretion and decline to strike out the 1st Defendant’s pleadings at this instance. 31.For the above reasons, I am not persuaded that it would be in the best interest of justice to allow the Notice of Withdrawal at this stage. There is a valid consent order on record. It is yet to be fully complied with. It is my considered view that the Plaintiff is at liberty to seek withdrawal of his suit upon demonstration that he has complied with the consent order recorded herein. 32.Consequently, the Notice of Withdrawal dated 4th February 2026 is hereby held in abeyance, pending further directions on this matter in line with this ruling. 33.It is so ordered. DATED, SIGNED AND DELIVERED THIS 24TH DAY OF JUNE 2026.S. N. MUTUKUJUDGE