[2023] KEPPDT 1355 (KLR)

Kiogora & another v Imanyara, the Secretary General Devolution Empowerment Party & 2 others; Speaker , County Assembly of Meru (Interested Party) (Complaint E002 (MRU) of 2023) [2023] KEPPDT 1355 (KLR) (21 July 2023) (Ruling)

Neutral citation: [2023] KEPPDT 1355 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E002 (MRU) of 2023

G. Gathu, Presiding Member, T. Chepkwony & S Musau, Members

July 21, 2023

Between

Dennis Kiogora

1st Complainant

Joseph Njuki Mugambi

2nd Complainant

and

Mugambi Imanyara, The Secretary General Devolution Empowerment Party

1st Respondent

Devolution Empowerment Party

2nd Respondent

The Meru County Secretary Devolution Empowerment Party

3rd Respondent

and

Speaker , County Assembly Of Meru

Interested Party

Ruling

1. This Complaint was initially set down for hearing on 28th June 2023. The said date was declared a public holiday. The Complaint was thereafter fixed for hearing on 12th July 2023. On the said hearing date, the Complainants indicated that they reached a compromise with the Respondents and wished to withdraw the Complaint having filed a Notice of Withdrawal dated 5th July 2023. However, there were a few pending issues that needed to be ironed out and they sought more time do so. The Tribunal therefore directed that the matter be mentioned on 19th July 2023 to record the settlement.

2. On 19th July 2023, parties seem not to have come to an agreement. Counsel for the Respondents Mr. Muite appearing with Mr. Otieno therefore indicated that he was ready to proceed and was opposed to the withdrawal. On the other hand, Counsel for the Complainants Mr. Mutuma appearing with Ms. Kimathi submitted that, the Complainants having filed a Notice of Withdrawal, there was no bar to their withdrawing the Complaint. Thus, it was not possible to compel the Complainants to proceed with the Complaint.

3. The aforesaid Notice of Withdrawal is therefore the subject matter of this ruling.

Issues for determination 4. The issue for determination is whether this Tribunal can decline the Withdrawal of a Complaint.

Analysis and Determination. 5. Section 41 (4) of the Political Parties Act provides for the application of the Civil Procedure Act and consequently the rules of procedure made thereunder in the determination of disputes before this Tribunal. Withdrawal, discontinuance and adjustment of suits is covered under Order 25 of the Civil Procedure Rules. Rules 1 and 2 of Order 25 are of relevance herein and we reproduce them below:-“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.”

6. We deduce that the Civil Procedure Rules distinguish two instances where a Complainant can withdraw a Complaint. The first one is before the Complaint is set down for hearing where the Complainant can withdraw it just by filing a notice in writing. The second one is when a Complaint has been set down for hearing. In such a case, a Complainant can only withdraw the Complaint either with the consent of all parties or with leave of the court on such terms as the court may, at its discretion, impose.

7. The provisions on withdrawal of a suit in the Civil Procedure Rules are grounded on the principle that a Plaintiff or in this case a Complainant is dominus litis. He or she is the master of the suit. He or she has ultimate control over the suit and may erect not to proceed with the same. Indeed, the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR stated thus:-“A party’s right to withdraw a matter before the court cannot be taken way. A court cannot bar a party from withdrawing his matter.

8. For clarity, the Tribunal is alive to the fact that some proceedings governed by other procedural rules may bar withdrawal. As an example, under rule 27(3) of the Constitution of Kenya (Protection of. Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, a Court may decline to have a Petition withdrawn even when a Petitioner wishes to withdraw the same. However, for purposes of the procedural rules governing the hearing and determination of matters before this Tribunal, the position is indeed that the Tribunal cannot bar a party from withdrawing a Complaint.

9. Additionally, the provisions of order 25 rule 2 of the Civil Procedure Rules sets conditions on the right to withdraw a suit after it has been set down for hearing. Perhaps this is in recognition of the fact that there are other parties involved and they equally have rights and interests that the court must balance as against the Complainants right to withdraw a suit. The conditions are that if a suit has been set down for hearing, then it can only be withdrawn either by consent of all parties or with leave of the court or upon such terms as the court may impose. Some of those terms which can be imposed at the discretion of the court include an order for costs or a limitation on the filing of a further suit.

10. In Kenya Union of Water and Sewerage Employees & 2 others v Nzoia Water and Sewage Co. Ltd & another [2019] eKLR, the High Court allowed the Plaintiffs to withdraw a suit with costs to the Defendant and barred the Plaintiffs from filing any further suit as against the Defendant over the same subject matter to avoid abuse of the court process.

11. The Complainants in this case filed a Notice of Withdrawal on 5th July 2023. This was after the matter had been set down for hearing on 28th June 2023 which was declared a public holiday. The Tribunal thereafter mentioned the matter on 30th June 2023 and set down the Complaint for hearing on 12th July 2023. It is therefore not in doubt that the circumstances of the Complainants withdrawal fall under Order 25 rule (2) sub rules (1) and (2) of the Civil Procedure Rules as the Complaint had been set down for hearing. The Complainants had the option of either filing a consent signed by all parties or seeking leave of this Tribunal. There is no consent filed by the parties and it is upon the Tribunal to grant leave to withdraw. As we have shown, the Tribunal cannot decline to grant leave and we proceed to do so.

12. We are also of the view that it is lawful, fair and just that the Respondents are awarded the costs of the Complaint as against the Complainants. The Interested Party did not participate in these proceedings and is therefore not entitled to any costs. To avoid any possible abuse of the court process, the Tribunal further directs that the Complainants shall not file a further suit as against the Respondents over the same subject matter as this Complaint.

Final Orders 13. The final orders of the Tribunal shall be:-a.This Complaint is hereby marked as withdrawn with costs to the Respondents.b.The Complainants shall not file any other suit against the Respondents over the subject matter of this Complaint.

DATED AND DELIVERED VIRTUALLY THIS 21ST DAY OF JULY 2023. GAD GATHU - (PRESIDING MEMBER)THERESA CHEPKWONY - (MEMBER)STEPHEN MUSAU - (MEMBER)