https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3292

Kioko v Kioko & 2 others (Environment and Land Case Civil Suit 150 of 2010) [2026] KEELC 3292 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELC 3292 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case Civil Suit 150 of 2010 AY Koross, J June 2, 2026 Between Daniel Kaloki Kioko Plaintiff and Willy Muasa Kioko 1st Defendant Homeward Agencies Limited 2nd Defendant Hazina Housing Co-Operative Limited 3rd Defendant Ruling 1.This ruling concerns the notice of motion dated 12 August 2025, filed by the plaintiff, which is said to have been filed in accordance with Section 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules, and Section 19 of the Environment and Land Court Act 2011. The plaintiff seeks the following reliefs from this court: -a.Spent.b.That, the orders made on 19 October 2023, withdrawing the plaintiff's suit, be set aside.c.That upon the granting of prayer 2, the plaintiff's suit be reinstated for hearing.d.That the cost of this application be in the cause. 2.The motion is supported by the grounds therein and by the affidavit sworn by the plaintiff on the instant date. In a nutshell, he states that he recently learned that his previous advocate withdrew the suit on 19 October 2023, and that the court awarded costs to the defendants. The withdrawal of the suit was without his instruction or knowledge, and he wishes to continue prosecuting the suit until it is decided on its merits. The motion is strongly challenged by the 2nd and 3rd defendants. 3.The 2nd defendant opposed it by way of the replying affidavit of his counsel, Stanley Muema, deposed on 22 October 2025. Concisely, counsel informs the court that the suit was scheduled for a pre-trial conference, but the plaintiff's previous advocates informed the court of the plaintiff's decision to withdraw the suit, as evidenced by the properly filed notice of withdrawal. As a result, the suit was marked as withdrawn, with costs awarded to the defendants. After the withdrawal, the 2nd defendant filed its bill of costs (BOC), dated 30th April 2024 and later amended on 7th February 2025, for taxation by the taxing officer. 4.However, the plaintiff has now filed this application solely to delay and frustrate any potential execution that may follow the taxation of the BOC. Further, if the plaintiff's previous advocates acted without his instructions, as alleged, it is the plaintiff's responsibility to lodge a complaint with the Advocates' Complaints Commission (ACC). Lastly, the motion has been filed inordinately late. By the replying affidavit of Onyango Omogo, deposed on 3 September 2025, the 3rd defendant challenged the motion and reiterated counsel Muema’s assertions, which this court need not repeat. 5.The motion is canvassed by written submissions. The plaintiff’s submissions, filed by its law firm on record, Ms. D.K Muema & Co. Advocates, are dated 9 April 2026. As for the 2nd defendant, its law firm on record, Ms. B.M Mung'ata & Co. Advocates, filed written submissions dated 27 April 2026. Lastly, the 3rd defendant’s submissions were filed by its law firm on record, Ms. Ombok & Owuor Advocates LLP, dated 24 April 2026. Accordingly, having carefully considered the motion, its grounds, the affidavits, the rival submissions, and guided by the law and judicial precedents, the single issue for determination is whether a withdrawn suit can be reinstated, and we address it. 6.This issue was addressed only by the 2nd and 3rd defendants. From the record, this matter had been pending in court for 13 years before the plaintiff, through his previous law firm on record, filed a notice of withdrawal of the suit dated 15 September 2023, thereby withdrawing the consolidated cases against the defendants. His actions were permissible and were statutorily anchored in Order 25, Rules 1 and 2 of the Civil Procedure Rules, which provide as follows:“[Order 25, rule 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 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. 7.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)The provisions of this rule and rule 1 shall apply to counterclaims.” 8.This legal provision has been the subject of legal interpretation. In Priscilla Nyambura Njue v Geovhem Middle East Ltd; Kenya Bureau of Standards (Interested Party) [2021] KEHC 13341 (KLR), which has been relied upon by both the 2nd and 3rd defendants, the court held that the right provided under Order 25 Rules 1 & 2 (1) is not fettered by any conditions as a plaintiff has the absolute right to exercise a withdrawal at his convenience at any time before the judgment is passed. This court associates itself with this persuasive decision, which resonates with the Apex court’s decision in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), which held:“90.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. All that the court can do is to make an order as to costs where it is deemed appropriate.” 9.Thus, when the matter was brought before this court on 19 October 2023, the previous counsel for the plaintiff, Mr. Gitonga, informed the court of the plaintiff's intention to withdraw the suit, and the defence counsel present in court did not object, save for payment of the costs of the suit. The court subsequently marked the suit as withdrawn and awarded costs to the defendants for their participation in the proceedings. Notably, the matter is now subject to taxation proceedings before the taxing officer for the assessment and eventual settlement of those costs. 10.Having laid the legal basis for withdrawal and the surrounding circumstances of the withdrawal of the suit, which was proper as the plaintiff was represented by previous counsel who had an implied general authority to withdraw the suit, and there is no evidence of impropriety, we now revert to our core issue for determination. 11.The 2nd and 3rd defendants argue that a suit that has been withdrawn cannot be reinstated. Indeed, this court concurs with this position and expressly finds that the legal framework outlined in Order 25 of the Civil Procedure Rules is silent on the procedures for reinstating a suit after the plaintiff has filed a notice of withdrawal that has been adopted as an order of the court. In essence, once the withdrawal is formalised as a court order, it ceases to have any effect, as the Order does not provide for the revocation of a withdrawal. 12.This court interprets this Order, particularly Rule 4, to mean that the action can only be revived through the filing of a subsequent suit upon payment of costs associated with the previously withdrawn case. Additionally, the court is permitted to stay the proceedings of the subsequent suit until such costs have been duly paid in relation to the withdrawn suit. Our courts are abounding with jurisprudence on this issue. In Priscilla Nyambura (Supra), it was held: -“The withdrawal is complete or effective as soon as it takes place. The right to revoke the withdrawal can only be allowed by the legislature by expressly providing so in the rule and not by the courts. In the same vein, the rules do not confer the court with power to reinstate a suit once withdrawn. Order 25 Rule 1 provides that the withdrawal shall not be a defence to any subsequent action. Before me is not a subsequent action, but the same suit. 13.Similarly, Charles Kiptarbei Birech v Paul Waweru Mbugua & another [2021] KEELC 394 (KLR), the court had this to say: -“19.Of importance to note is that the Rules that provide for the discontinuance or withdrawal of a suit do not provide for the revocation of withdrawal notice or the setting aside of the suit. And once a suit is discontinued in whichever manner howsoever, it ceases to exist. A party cannot breathe life into it by whichever means, not even by a consent setting aside the orders of withdrawal. This is because, once a suit is withdrawn there is no party that exists in relation to that suit. The existence of a suit can be equated to the existence of light from a bulb: it only exists if there is an electric current and the gadget known as “bulb”. Once the either the light or the bulb cease to be in contact, the light goes out and in its place is darkness. The only way to get light again in that bulb is to supply current to it. The light that comes into existence again it not the continuation of the one that went out: it is new.” 14.Given the above and guided by the law and judicial precedent, this court need not say more. It finds that the notice of motion dated 12 August 2025 is not merited and hereby dismisses it, with costs to the 2nd and 3rd defendants as they participated in these proceedings.Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 2ND DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE02.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. D. K. Muema for plaintiff/applicant.Mr. S. Muema for the 2nd defendant.Mr. Glenn Innocent for 3rd defendant.