[2022] KEELC 14637 (KLR)
The court held that the withdrawal of a suit, even if based on a conditional settlement, is final and precludes reinstatement through an application. The only remedy for the plaintiffs is to file a fresh suit if the settlement condition (payment of Kshs 7 million) was not met. The court found no legal basis to set...
Source-derived case information.
- Citation
- [2022] KEELC 14637 (KLR)
- Parties
- Applicant: Daniel Kisheu Letaari; Applicant: Victor Rumpas Letaari; Applicant: Joshua Sancha Letaari; Respondent: George Ngure Kariuki; Respondent: Samuel Kuntai Tunai; Respondent: Registrar of Lands, Ngong; Respondent: County Government of Kajiado
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 40 of 2020
- Procedural Posture
- Notice of Motion / Ruling on Application to Strike Out Withdrawal and Reinstate Suit
- Outcome
- application dismissed with costs to the respondents
- Judges
- MN Gicheru
- Legal Topics
- Withdrawal of Suit, Reinstatement of Suit, Conditional Settlement, Land Dispute, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kisheu Letaari
Applicant
Victor Rumpas Letaari
Applicant
Joshua Sancha Letaari
Applicant
George Ngure Kariuki
Respondent
Samuel Kuntai Tunai
Respondent
Registrar of Lands, Ngong
Respondent
County Government of Kajiado
Respondent
Procedural Posture
Notice of Motion / Ruling on Application to Strike Out Withdrawal and Reinstate Suit
Legal Issues
- 1 Whether a suit withdrawn by notice can be reinstated by application.
- 2 Whether the withdrawal of the suit was conditional upon payment by the second defendant.
- 3 Whether the plaintiffs are entitled to amend the plaint and set the suit for pre-trial conference after withdrawal.
Ratio Decidendi
The court held that the withdrawal of a suit, even if based on a conditional settlement, is final and precludes reinstatement through an application. The only remedy for the plaintiffs is to file a fresh suit if the settlement condition (payment of Kshs 7 million) was not met. The court found no legal basis to set aside the withdrawal or reinstate the suit, as the Civil Procedure Rules provide only for the institution of a new suit after withdrawal. Consequently, the notice of motion seeking reinstatement and related orders was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The notice of motion dated 1/2/2022 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
Letaari & 2 others (Suing as Legal Representative of the Estate of Ntaari Kilenyi Supeyo) v Kariuki & 3 others (Environment & Land Case 40 of 2020) [2022] KEELC 14637 (KLR) (8 November 2022) (Ruling)
Neutral citation: [2022] KEELC 14637 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 40 of 2020
MN Gicheru, J
November 8, 2022
Between
Daniel Kisheu Letaari
1st Applicant
Victor Rumpas Letaari
2nd Applicant
Joshua Sancha Letaari
3rd Applicant
Suing as Legal Representative of the Estate of Ntaari Kilenyi Supeyo
and
George Ngure Kariuki
1st Respondent
Samuel Kuntai Tunai
2nd Respondent
Registrar of Lands, Ngong
3rd Respondent
County Government of Kajiado
4th Respondent
Ruling
1. This ruling is on the notice of motion dated February 1, 2022, which is brought under article 162 (2) (b) of the Environment and Land Court Act and section 68 of the Land Registration Act, order 51, rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act.
2. The motion seeks to strike out the plaintiffs’ notice of withdrawal of the suit dated November 24, 2021 and set aside its orders issued on December 20, 2021 withdrawing the substantive suit herein and to reinstate the suit. Secondly, the motion seeks leave to have the plaintiffs’ amend their plaint and set the suit down for a pre trial conference.
3. The grounds for seeking the above orders can be summarized as follows. The withdrawal of the suit was conditional. The condition was that the second defendant would pay the plaintiffs a total of Kshs 7 Million before the withdrawal of the suit. The second defendant has reneged on this condition by refusing to pay the agreed sum. The plaintiffs’ counsel has filed a supporting affidavit dated 1/2/2022 elaborating on the details of change of mind by the second defendant.
4. The application is said to he opposed by the first defendant who is said to have filed a replying affidavit dated February 1, 2022. I have not seen the said affidavit on record. The only filing by the first defendant is a copy of written submissions dated October 8, 2022 and filed on October 11, 2022.
5. I have carefully considered the application in its entirety and I am in agreement with the first defendant’s counsel that a withdrawal of a suit leaves no room for the reinstatement of the same suit through an application such as the current one. The only option left for the plaintiffs is to file a fresh suit. Order 25 (1) Civil Procedure Rules sets down that option of a fresh suit. For this reason, I dismiss the notice of motion dated 1/2/2022 with costs to the respondents.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 8TH DAY OF NOVEMBER, 2022. M.N. GICHERUJUDGE