[2019] KEHC 6598 (KLR)
The court held that since the suit had already been set down for hearing, withdrawal could only be permitted with the consent of all parties or with leave of the court. The court found that the plaintiffs had not disclosed the details of the discussions with the 1st defendant, which was necessary given the...
Source-derived case information.
- Citation
- [2019] KEHC 6598 (KLR)
- Parties
- Plaintiff: Kenya Union of Water and Sewerage Employees; Plaintiff: Erick Nasokho; Plaintiff: Mark Werunga; Defendant: Nzoia Water and Sewage Co. Ltd; Defendant: Water Service Regulatory Board
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2 of 2019
- Procedural Posture
- Civil Suit / Ruling on Application for Withdrawal of Suit
- Outcome
- Suit withdrawn with leave of court, with costs to the defendants and a bar on refiling the same claim.
- Judges
- SN Riechi
- Legal Topics
- Withdrawal of Suit, Costs Award, Leave of Court, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Water and Sewerage Employees
Plaintiff
Erick Nasokho
Plaintiff
Mark Werunga
Plaintiff
Nzoia Water and Sewage Co. Ltd
Defendant
Water Service Regulatory Board
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Withdrawal of Suit
Legal Issues
- 1 Whether the plaintiff should be granted leave to withdraw the suit after the matter had been set down for hearing.
- 2 Whether the withdrawal should be allowed without the consent of all parties as required by Order 25 of the Civil Procedure Rules, 2010.
- 3 Whether the plaintiff should be barred from filing a similar suit on the same claim against the defendants.
Ratio Decidendi
The court held that since the suit had already been set down for hearing, withdrawal could only be permitted with the consent of all parties or with leave of the court. The court found that the plaintiffs had not disclosed the details of the discussions with the 1st defendant, which was necessary given the representative nature of the suit. Nevertheless, the court exercised its discretion to grant leave for withdrawal, but imposed terms to prevent abuse of process: the plaintiffs were ordered to pay costs to the defendants and were barred from filing a similar suit on the same claim against the defendants. This approach balanced the plaintiffs' right to discontinue the suit with the need...
Court Disposition
Suit withdrawn with leave of court, with costs to the defendants and a bar on refiling the same claim.
Orders
- Leave granted to the plaintiffs to withdraw the suit against the defendants.
- Plaintiffs to pay costs to the defendants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL SUIT NO.2 OF 2019
KENYA UNION OF WATER AND
SEWERAGE EMPLOYEES………………..……..……..1ST PLAINTIFF
ERICK NASOKHO………………………………………2ND PLAINTIFF
MARK WERUNGA…………………………...……..….3RD PLAINTIFF
VERSUS
NZOIA WATER AND SEWAGE CO. LTD……...…...1ST DEFENDANT
WATER SERVICE REGULATORY BOARD…......…2ND DEFENDANT
RULING
This is an application by the Plaintiff Kenya Union of Water and Sewerage Employers and another to withdraw the suit filed against his servant on 20. 2.2019.
The reason for the withdrawal is that there have been discussions between the Plaintiff and the 1st Defendant Nzoia Water and Sewerage Company Ltd. Mr.Muruka for the 2nd Defendant Water Service Regulatory Board opposed the application on the ground that the 2nd Defendant was not involved in the discussion forming the basis of withdrawal.
This suit was filed on 20. 2.2019 together with application under c certificate of urgency. The same was certified urgent and application was hear on 25. 2. 2019. Ruling on the application was delivered on 27. 2.2019. The Defendants were directed to file defence and hearing of the suit set for 9. 4.2019 when the plaintiff filed this application.
Withdrawal of suits are guided by order 25 Civil Procedure Rules,2010.
Order 25 Rule 2 provides;
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 the 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 plaintiffs 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.”
On application this court may grant leave to the Plaintiff to withdraw this suit upon such terms as it thinks fit in favour of costs or filing of further suit. I have considered the application and reasons. There was no such disclosure of the discussion between plaintiff and 1st Defendant, which I think was necessary as this was a suit for and on behalf of the members of the union. I therefore grant leave to the Plaintiff to withdraw the suit against the defendants with costs to the Defendant and to avoid abuse of the court process order that the Plaintiff should not file such suit against the defendants on the same claim as in this suit.
Dated and Delivered at BUNGOMA this 18th day of June, 2019.
S.N. RIECHI
JUDGE