https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4948

Njoroge (Suing as the Legal Representative of John Joel Maina Thuo) v Kariuki & 23 others (Environment and Land Case 25 of 2022) [2026] KEELC 4948 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELC 4948 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case 25 of 2022 CK Yano, J July 30, 2026 Between Joseph Waweru Njoroge (Suing as the Legal Representative of John Joel Maina Thuo) Plaintiff and Lucy Wairimu Kariuki 1st Defendant Dennis Anyega Nyambega 2nd Defendant Kenedy Macanica Ayieko 3rd Defendant John Chegu Ngugi 4th Defendant Vincent Kiplagat Kipchumba 5th Defendant Margaret Ayuma 6th Defendant Jastas Mogire Orero 7th Defendant Joseph Kamau Ndung’u 8th Defendant Obadiah Sagim Orero 9th Defendant Christopher Erabonga Mbasu 10th Defendant Alex Omwenga Ongiro 11th Defendant Lucas Nyaringa Oguta 12th Defendant Viola Jebet Kimutai 13th Defendant Charles Matora 14th Defendant Benard Achote 15th Defendant Monicah Mogure 16th Defendant Tabitha Njeri 17th Defendant Gibson Nzalwa 18th Defendant Peter Ndung’u 19th Defendant Benjamin Kosgei 20th Defendant Peter Kariba 21st Defendant Patrick Masadia 22nd Defendant County Land Registrar Uasin Gishu 23rd Defendant Hon. Attorney General 24th Defendant Ruling 1.This is a ruling in respect of the 1st - 22nd Defendants/Applicants’ Notice of Motion dated 19th January, 2026 in which the Applicants seek the following orders:-(a)Spent(b)The Honourable Court be pleased to stay the instant suit/the hearing and determination herein pending the settlement and/or payment of the Party and Party Costs on part of the Plaintiff/Respondent in respect of Chief Magistrate’s Court at Eldoret ELC Case No. 8 of 2020; Joseph Waweru Njoroge (Suing as the Attorney of Joel Maina Thuo) vs Lucy Wairimu Kariuki & 12 others and Environment and Land Court at Eldoret Miscellaneous No. 13 of 2021; Joseph Waweru Njoroge (Suing as the Legal Attorney of Joel Maina Thuo) that were discontinued and/or dismissed respectively and which costs have been assessed vide respective Certificates of Costs being one dated 9th October 2024 for KShs. 820,000.00 and one dated 8th April 2024 for KShs. 665,500.00 respectively and which costs have not been paid.(c)That the Honourable be pleased to direct the Plaintiff/Respondent to settle the Party and Party Costs in previous suits as per the Certificate of Costs dated 9th October 2024 and one dated 8th April 2024 totalling to KShs. 1,485,500.00 (Kenya Shillings One Million Four Hundred and Eight Five Thousand and Five Hundred) before the hearing and determination of this suit.(d)The Plaintiff be condemned to pay costs of the instant application. 2.The Application is premised on the grounds set forth on the Motion and supported by an Affidavit sworn by Dennis Anyega Nyambega, the 2nd Defendant/Applicant herein, on 19th January, 2026. He deponed that the Plaintiff/Respondent had filed Eldoret CM ELC Case No. 8 of 2020 against the 1st Defendant & 12 others, which was discontinued/withdrawn. That Party and Party Costs therein were assessed vide Certificate of Costs dated 09.10.2024 at KShs. 820,000/-, which costs are yet to be paid. He averred that the Plaintiff also filed Eldoret ELC Misc. Application No. E013 of 2021 which was dismissed with costs, which were assessed at KShs. 650,000/- vide Certificate of Costs dated 08.04.2024, but are also yet to be paid. 3.The 2nd Defendant further deponed that Order 25 Rule 4 of the Civil Procedure Rules bars the Plaintiff from instituting a subsequent suit against them until he pays costs in the previous suits. He cited Judith Cherono Mosonik vs Dickson Kipkemboi & Another (2019) eKLR and Kiroket Ole Puma vs Umash Ole Manwaki & 2 Others (2018) eKLR in support of the Motion, and urged this court to stay the instant suit until the assessed costs in the previous suits are paid. He deponed that the instant application had been made in good faith, without undue delay and in the interest of justice. 4.The Plaintiff/Respondent opposed the Application through a Replying Affidavit sworn on 19th February, 2026. He deponed that he is a co-administrator of the Estate of the late Joel Thuo Maina alongside Ann Muthoni Maina, pursuant to a Grant of Letters of Administration Ad Litem granted on 01.12.2022. He termed the present Application misconceived, bad in law and an abuse of court process as it seeks to bar the deceased’s estate from accessing justice on account of costs in a suit filed in the deceased’s lifetime, through him as his legal attorney. 5.He claimed that the present suit was filed in their capacity as administrators of the estate and not in the same capacity as the Plaintiffs in the other suits as contemplated under Order 25 Rule 4. He explained that the suit was withdrawn for lack jurisdiction thus it was not heard on merit. That baring the estate from proceeding in this matter, therefore, equates to denying the estate from accessing justice contrary to Article 48 of the Constitution. He alleged that Order 25 Rule 4 is not mandatory in nature, and he asked the court not to punish the estate for steps taken by the deceased Plaintiff during his lifetime. 6.He urged that the estate shall completely be shut out from justice yet the only asset of the estate is the land that was divided and sold to the Defendants. He averred that the Defendants can be compensated by way of costs at the end of the matter, thus there is no prejudice on them. He further averred that the present suit is not vexatious as the earlier suit was withdrawn to allow the Plaintiffs file the present suit. He asked the court to disregard the application and allow the suit to proceed on merit. Submissions: 7.The present application was canvassed by way of written submissions, with the Defendants/Applicants filing their submissions dated 28.02.2026 in support of the Motion. The Plaintiff’s submissions opposing the application are dated 05.05.2026. The Defendants/Applicants’ Submissions; 8.In the Defendants/Applicants’ submissions, Counsel submitted that contrary to the Plaintiff’s assertions, the Power of Attorney and the Grant Ad Litem proved that Joseph Waweru Njoroge instituted the previous suits acting as a legal representative of the late Joel Maina Thuo. Counsel asserts that the Plaintiff has all along been the same save for acting under the two instruments which, counsel pointed out, carry the same weight in a court of law. For this reason, Counsel urged that the Plaintiff is barred by Order 25 Rule 4 of the Civil Procedure Rules from continuing the present suit before paying the costs in the previous suits. Counsel argued that the subject matter and the parties in the discontinued suit is the same as that in the present suit. 9.Counsel points out that the Plaintiff filed the present suit after the previous ones were withdrawn and/or dismissed with costs. That in view of Order 25 Rule 4, the Plaintiff cannot bring another suit before settling the costs of the earlier suit as assessed in the Certificates of Costs dated 08.04.2024 and 09.10.2024. Counsel relied on Judith Cherono Mosonik vs Dickson Kipkemboi & Another (Supra) and Kiroket Ole Puma vs Umash Ole Manwaki & 2 Others (2018) eKLR. Counsel thus submitted that it is in the interests of justice that the present suit be stayed pending payment of the assessed costs totalling to KShs. 1,485,500/-, and prayed that the application be allowed. The Plaintiff/Respondent’s Submissions; 10.In opposing the application, Counsel for the Plaintiff/Respondent submitted that the Plaintiff filed the two previous suits in a different capacity as an attorney. That in the present suit, he is a representative of the Estate, which is a distinct legal entity and should not be held liable for costs incurred in his previous capacity as an attorney. Counsel argued that the circumstances contemplated under Order 25 Rule 4 do not apply in this case, and asked that the estate not be punished for procedural events arising from prior litigation. Counsel further argued that the withdrawal of the previous suit was occasioned by the Defendants’ contention that the value of the subject matter exceeded the limits of the magistrate’s court. 11.According to Counsel, the Defendants are enjoying the suit land while citing procedural technicalities to bar the estate from challenging the illegal subdivision and transfer of the land. Counsel asked the court to exercise its discretion and waive the requirement since the estate is insolvent, and seeking payment upfront effectively shuts the doors of justice on the estate. Counsel argued that the Defendants participated in Eldoret Misc. Application No. E013 of 2021 without seeking its stay to enforce payment of costs in Eldoret CM ELC No. E008 of 2020. Counsel contends that this shows that Order 25 Rule 4 is discretionary and can be waived, and further, that the Defendants may have waived their right to enforce the costs of the earlier suits. 12.In addition, Counsel pointed out that Order 25 Rule 4 applies where the subsequent suit is brought against the same Defendants. Counsel explained that there were only 13 Defendants in Eldoret CM ELC No. E008 of 2020, and consequently, the stay cannot issue. Counsel urged that should the court find in favour of the Defendants, the case ought to continue against the other Defendants in this suit. In conclusion, Counsel argued that the Defendants’ Application lacks merit, is misconceived and constitutes an abuse of court process. Counsel asked that the same be dismissed with costs and the matter do proceed on its merits. Analysis and Determination: 13.I have considered the Notice of Motion application with its supporting affidavit, the replying affidavit and the submissions filed by Counsel on behalf of the parties. The issues for determination are:-i.Whether an order of stay of proceedings should be granted pending the payment of the costs awarded in the previous suits; andii.Who shall bear the costs of this Application? (a) Whether an order of stay of proceedings should be granted pending the payment of the costs awarded in the previous suits 14.The 1st to 22nd Defendants anchor their application on Order 25 Rule 4 of the Civil Procedure Rules, which permits the court to stay a subsequent suit brought on the same or substantially the same cause of action as a previously withdrawn suit, where the costs of the earlier suit remain unpaid. The rule provides:-4.Stay of subsequent suit [Order 25, rule 4]If any subsequent suit shall be brought before payment of the costs of a discontinued suit, upon the same, or substantially the same cause of action, the court may order a stay of such subsequent suit until such costs shall have been paid. 15.From the above provisions, it is a requirement for payment of costs in a withdrawn suit to be paid first, before a subsequent suit can proceed. The court in Patrick Kigera Mathia & Another vs Dr. Peter Mungai Ngugi & 2 others (2011) eKLR, set out the elements to be established in order for Rule 4 to apply, as follows:-i.a suit is instituted and later discontinued by the claimant;ii.costs are awarded and certified in respect of that discontinued suit to the respondent(s);iii.those costs are known/demanded and not paid by the claimant;iv.the claimant, nonetheless files another suit upon the same or substantially the same cause of action;v.the court may order a stay of such subsequent suit until such costs have been paid. 16.The first requirement is that there must be a suit that was instituted and later discontinued by the Plaintiff. In this cause the Plaintiff filed Eldoret CM ELC case No. E008 of 2020, which this court has been informed was withdrawn upon the Defendants filing a Preliminary Objection that the lower Court lacked pecuniary jurisdiction. The Defendants have annexed a copy of the Notice of Withdrawal of Suit dated 14.03.2022. The costs of that suit were assessed at KShs. 820,000/- as shown in the Certificate of Costs dated 09.10.2024. 17.Thereafter, the Plaintiff instituted Eldoret ELC Miscellaneous Application No. E013 of 2021, which this court is told, was dismissed with costs to the Defendants. The Costs of that suit were assessed at KShs. 665,500/- as shown in the Certificate of Costs dated 08.04.2024. It is the 1st to 22nd Defendants’ case that despite not paying the costs in the previous suits, the Plaintiff has now filed the present suit, which they claim is premised on the same cause of action. 18.My understanding of a discontinuance is as explained at Order 25 Rule 2, which provides that:-2.Discontinuance [Order 25, rule 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.(3)… 19.Courts have held the view that Order 25 Rule 4 was deliberately crafted to curb abuse where a Plaintiff withdraws a suit to avoid costs and then re-litigates the same dispute in a subsequent suit. A discontinuance, properly understood therefore, is the formal, voluntary termination of a law suit or general cessation of an action by the Plaintiff. Essentially, in a discontinuance, the Plaintiff abandons all or part of a claim before trial. 20.The Black’s Law Dictionary defines “discontinuance” as the termination of a law suit by the Plaintiff; a voluntary dismissal or non suit. 21.Contrary to Order 25 Rule 2 however, Eldoret ELC Miscellaneous Application No. E013 of 2021 was in fact prosecuted and determined on merit, pursuant to which, it was dismissed by the court. A dismissal by the court is a substantive judicial act and cannot be equated to a discontinuance by the Plaintiff. 22.When a suit is dismissed after trial or for any reason, it cannot be said that the Plaintiff was avoiding costs. For this reason, the dismissal of a case after trial cannot be taken as a discontinuance under Order 25 Rule 4. Consequently, Order 25 Rule 4 cannot be applied to enforce payment of costs incurred in Eldoret ELC Miscellaneous Application No. E013 of 2021 as the said suit was not discontinued but dismissed upon the parties being heard on merit. 23.With regard to the costs incurred in Eldoret ELC Miscellaneous Application No. E013 of 2021, Section 38 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules among other enabling laws, provide adequate mechanisms for the enforcement of decrees, including costs, which include attachment and sale of property. The Defendants remain at liberty to enforce the certificate of costs in the appropriate forum. This court finds the current application to be inappropriate for recovery of the costs assessed in that suit. This only leaves the court with the issue whether the present suit can be stayed pending the settlement of the costs assessed in Eldoret CM ELC case No. E008 of 2020. 24.In this instance, the court notes that the applicants have exhibited a notice of withdrawal in Eldoret CM ELC case No. 008 of 2020 between Joseph Waweru Njoroge suing as the attorney of John Joel Maina –vs- Lucy Wairimu Kariuki & 12 others as Defendants. Those 13 Defendants are the 1st to 11th and 23rd & 24th Defendants in the present suit. Eldoret CM ELC case No. E008 of 2020 was withdrawn vide a Notice of Withdrawal of suit dated 14th March, 2022. The Plaintiff herein does not dispute that costs are payable in that previous suit as per the certfciate of costs dated 9th October, 2024 annexed to the Applcants’ supporting affidavit, and marked “DN-2”. The plaintiff further admits that he was a party in the previous suit, but argued that he was only acting under a Power of attorney donated by the late Joel Thuo maina. The plaintiff further claims that in this suit, he is an administrator of the estate of the late Joel Thuo maina and is thus acting in a different capacity. 25.On this argument, this court, while sitting in Momabasa, explained in the case of Davis Mwatela Dzuya & another Vs. Salim Anjarwalla (the Legal representative of the Estate of Hussein Karimbhai Anjarwalla) (2021) KEELC 3861 (KLR), that:-“From the reading of Order 25 Rule 4, a plaintiff having withdrawn an action, commences a second action for the same matter, a court may stay the second action until costs of the first action have been paid. Stay may be granted despite a technical difference in the capacity in which the subsequent action is brought. 26.I am still persuaded by the above explanation. It has not been denied that the subject matter of the previous suit and the current suit are the same. And as rightly submitted by the Defendants/Applicants’’ counsel, contrary to the Plaintiff’s assertions, the power of attorney and the Grant Ad Litem is enough proof that Joseph Waweru Njoroge instituted the previous suit and the current suit as a legal representative of the late Joel Thuo Maina. In my view, the two instruments carry the same weight in a court of law. Therefore, Order 25 Rule 4 applies in this case. 27.The upshot is that the Notice of motion application dated 19th January, 2026 is merited with respect to this suit and Eldoret CM ELC case No. E008 of 2020 and the same succeeds partly. (b) Who shall bear the costs of this application? 28.As regards the costs of this Application, Section 27(1) of the Civil Procedure Act provides that the award of costs is within the discretion of the court. Further, the proviso to Section 27(1) states that costs follow the event unless the court, for good reason, orders otherwise. 29.Since the Defendants/Applicants’ have succeeded in the present application, being the successful parties, they are entitled to the costs of the application. There being no exceptional circumstances to warrant a departure from the general rule, the said costs are hereby awarded to the 1st-22nd Defendants/Applicants. Orders: 30.The upshot is that the 1st to 22nd Defendants’ Notice of motion application dated 19th January, 2026 is allowed and I make the following orders:-a.The proceedings herein are stayed pending payments of costs by Plaintiff/Respondent in Chief magistrate’s court at Eldoret ELC case No. E008 of 2020; Joseph Waweru Njoroge (Suing as the Attorney of John Joel Maina Thuo) vs Lucy Wairimu Kariuki & 12 others.b.Costs of this application are awarded to the 1st to 22nd Defendants. 31.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET ON THIS 30TH DAY OF JULY, 2026 VIDE MICROSOFT TEAMS.HON. C. K. YANOELC, JUDGEIn the presence of;Ms. Munyua for Plaintiff.Mr. Kwame holding brief Ms. Odeyo for 23rd & 24th Defendants.No appearance for the 1st - 22nd Defendants.Court Assistant - Laban.