https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4587

Jingo Tours and Safaris Limited & another v Swaleh & 2 others (Environment and Land Case E068 of 2026) [2026] KEELC 4587 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4587 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case E068 of 2026 BA Akello, J July 16, 2026 Between Jingo Tours and Safaris Limited 1st Plaintiff Abdulgader Shariff Saleh 2nd Plaintiff and Jamal Shariff Swaleh 1st Defendant George Michiri t/a Fantasy Auctioneers 2nd Defendant Registrar of Lands, Mombasa County 3rd Defendant Ruling 1.Before me is a Notice of Withdrawal of Suit dated 14th July 2026 and filed by Messrs. Derrick Odhiambo Advocates for the Plaintiffs/Applicants. By that Notice the 1st and 2nd Plaintiffs, being Jingo Tours and Safaris Limited and Abdulgader Shariff Saleh, withdraw the entire Notice of Motion dated 22nd June 2026 as against all the Defendants, and pray that the matter be closed with no order as to costs. 2.The Notice of Motion sought, in the main, a stay of execution of the orders issued in MCC MISC/E068/2026: George Muchiri t/a Fantasy Auctioneers v. Abdulgader Shariff Saleh, and ancillary reliefs touching on Title Number CR. 11830, Subdivision 1292/1/MN Mombasa North. The suit is at an early stage. Pleadings have not closed. The application has not been set down for inter partes hearing. No evidence has been taken. 3.The law on this narrow question is settled, and it is short. Order 25 Rule 1 of the Civil Procedure Rules, 2010 speaks with clarity:“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…” 4.The plaintiff, it has long been said, is dominus litis — master of his own suit. He who lights the fire may also, before the neighbours have gathered, quench it. This principle is not a creature of judicial charity; it is a right written into the Rules. The Court of Appeal, in Kenya Commercial Bank Limited v. Benjoh Amalgamated Limited [2014] eKLR, reaffirmed that a plaintiff enjoys an untrammelled right of discontinuance at the pre-hearing stage — subject only to considerations of costs and abuse of process. 5.The Supreme Court has spoken in the same voice. In Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2014] eKLR, the Court affirmed that costs follow the event, but that the award is at the discretion of the Court, to be exercised judiciously and not mechanically. That discretion was again exercised in Mike Mbuvi Sonko v. Clerk, County Assembly of Nairobi City & 12 Others [2022] KESC (SC Petition No. 14 (E021) of 2021), where, upon a like Notice of Withdrawal with no order as to costs, the Supreme Court accepted the withdrawal and directed that each party bear its own costs. 6.And in Cecilia Karuru Ngayu v. Barclays Bank of Kenya Ltd & Another [2016] eKLR, the High Court underscored what is now trite: withdrawal is the plaintiff’s prerogative; but the Court retains the residual power to attach terms as justice requires. 7.I have considered whether there is any warrant to interfere with what the Plaintiffs have proposed. There is none. The Defendants have not been put to the labour of a full defence. No inter partes hearing has been convened. No interim advantage has been reaped by the Plaintiffs in this file which the Defendants must now claw back. The Plaintiffs come to Court not to steal a march, but to lay down their arms. Where the dominus himself asks the Court to close the door, the Court should not press him to keep it ajar. 8.As Lord Denning MR was fond of observing, courts exist to do justice, not to prolong disputes for their own sake; and as Cardozo J. counselled in The Nature of the Judicial Process, the judge’s task is to keep the law’s method “in touch with life.” Life, in the person of these Plaintiffs, has moved on from this application. It is meet that the record should follow. 9.Withdrawal, once made, is a final act. As this Court has repeatedly held — most recently in Ohas & Another v. Gachagua & 5 Others [2023] KEELC 18939 (KLR), and earlier in Charles Kiptarbei Birech v. Paul Waweru Mbugua & Another [2021] eKLR — once a suit or application is withdrawn under Order 25, it ceases to exist and cannot be resurrected within the same file. The Plaintiffs have been so advised, and they persist. That is their right. Orders 10.Accordingly, the Court makes the following orders:(a)The Notice of Withdrawal dated 14th July 2026 is hereby allowed.(b)The Notice of Motion dated 22nd June 2026 is marked as withdrawn in its entirety as against the 1st, 2nd and 3rd Defendants/Respondents.(c)There shall be no order as to costs, as prayed.(d)The file is accordingly closed.It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 16TH DAY OF JULY, 2026.................HON. LADY JUSTICE B. AKELLO, OGWJUDGEIn the presence of:Gillian - Court assistantChoni H/B for Odhiambo for the plaintiffN/A for the defendants