https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8997

Mataratara v Ato Rite Resort & 8 others (Constitutional Petition E226 of 2025) [2026] KEHC 8997 (KLR) (Constitutional and Human Rights) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 8997 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E226 of 2025 RE Aburili, J June 22, 2026 Between Claudia Mataratara Petitioner and Ato Rite Resort 1st Respondent Ocs Kakuma 2nd Respondent Directorate Of Criminal Investigations 3rd Respondent The office of the Inspector General Of Police 4th Respondent Commissioner For Refugees Affairs 5th Respondent The United Nations High Commissioner 6th Respondent The Refugee Consortium Of Kenya 7th Respondent Independent Policing Oversight Authority 8th Respondent Ethics And Anti-Corruption Commission 9th Respondent Ruling 1.This petition was filed on 30/4/2025 together with an application under certificate of urgency, seeking for conservatory orders. Directions were given by L.N Mugambi J on 2/5/2025, on filing of responses to the application. 2.The matter was then slated for further directions on 11/6/2025 before E.C Mwita J (as he then was) and on the latter date, the petitioner’s counsel informed the court that she had served all the parties with pleadings but it turned out that not all parties served had filed responses to the application. The court fixed the matter for directions on 1/10/2025 to allow the petitioner’s counsel examine the issue of service on the UN and its agency as well as the response from the 8th respondent and decide on how to proceed with the matter. 3.Again, on 1/10/2025, when the matter came up for directions, Mr. Kinyanjui the 1st respondents’ counsel informed the court that the matter had been referred to the DCI Kakuma to undergo a public inquest and that the proceedings before the court were now moot. He submitted that the court can only be moved after the conclusion of the public inquest. 4.The other counsel informed court that they had not seen the letter and the court directed the 1st respondent to file a replying affidavit attaching the letter in issue and action being taken within 7 days. 5.The court fixed the matter for directions on 14/10/2025 and on the latter date, the 1st respondent’s counsel notified the court that an affidavit had been served showing that the matter was before a public inquest at Kakuma Law Courts. 6.Still, the petitioner’s counsel stated that they had not been served with the replying affidavit. The court directed that the affidavit be served and set the matter for directions on 28/10/2025. On 28/10/2025, the petitioner’s counsel reported that they had now been served with a replying affidavit and that the inquest was going on at Kakuma Magistrate’s Court in inquest No. E002/2025. The petitioner’s counsel Mrs Kimani asked the court to have the matter withdrawn and on no objection by Mr. Kinyanjui counsel for the 1st respondent and Mr. Lusweti for the 8th respondent, the petition was marked as withdrawn with each party bearing their own costs noting that Mrs Kimani had indicated that they were acting on probono basis and the file was closed. This this was after the petitioner’s counsel, Mrs. Kimani applied to have the petition withdrawn and the other counsel Mr. Kinyanjui and Mr. Lusweti not objecting to the withdrawal of the petition. 7.Two months later, vide a notice of motion dated 5th December, 2025, the petitioner filed an application seeking to reinstate the withdrawn petition which was withdrawn on 28/10/2025, among other prayers, claiming that the inquest proceedings serve no legitimate purpose being merely a delaying tactic to avoid accountability and to deny the petitioner access to justice. 8.The application also sought for protection of the petitioner who was allegedly being harassed and threatened by the 1st respondent and for the 1st respondent to furnish the court with CCTV footage and related evidence concerning the death of Derrick Ingabire, which evidence was allegedly being withheld by the 1st respondent to obstruct justice. 9.It was contended that the post mortem had shown that the deceased died of injuries inflicted and not drowning and that the CCTV footage and that medical reports were corroborating that finding. 10.The respondents opposed the application for reinstatement of the withdrawn petition. The 1st respondent filed a replying affidavit sworn by Benjamin Ekunoit Epuyo on 5th May 2026, dismissing the petitioner’s application as being ill advised, misconceived and lacking basis. He deposes that the issues being raised are before the inquest court of competent jurisdiction. That under order 25 Rule 1 of the Civil Procedure Rules, once a matter is withdrawn, it cannot be reinstated hence the application is an abuse of court process and a waste of court’s time. 11.The 8th respondent filed a replying affidavit sworn by Kevin Lusweti on 6th May 2026 opposing the reinstatement of the petition which was withdrawn, and contending that as the matter was withdrawn voluntarily to pave way for the public inquest which is still ongoing, the petitioner cannot seek to reinstate the withdrawn petition. Further, that allegation of failure to protect the petitioner by the 8th respondent are devoid of merit as the protection of the petitioner is in the mandate of the National Police Service and not IPOA, the 8th respondent. 12.The 8th respondent deposes that any threats to the petitioner should be reported to the police who are investigating into the death of the deceased, and that no sufficient cause has been demonstrated towards reinstatement of the petition as the court is functus officio, asserting that the issues raised are private, not of public interest consideration. 13.Parties argued the application orally on11/5/2026. In her submissions, Ms Muema for the petitioner submitted that the state is not ready to proceed with the public inquest, that the investigating officer does not attend court although the hearing was scheduled for the following day which was 12/5/2026. That the state had refused to produce CCTV footage and the petitioner was seeking for witness protection because he was being threatened. That the inquest was an afterthought hence the withdrawn petition should be reinstated. 14.Dr. Kinyanjui on behalf of the 1st respondent opposed the application relying on the filed replying affidavit and argued that there was no legal basis for reinstatement of the withdrawn petition since the issues being raised were being canvassed in the inquest proceedings at Kakuma Law courts. 15.That the petition having been withdrawn, it ceased to be in existence and cannot be withdrawn. He relied on the case of Joseph Kipngetich Korir Vs Litan Tea Factory Ltd and 2 others where Mumbi Ngugi J is said to have held that once a matter has been withdrawn, there is nothing left for the court to reinstate. He maintained that the application lacked legal backing and was unsustainable hence it should be dismissed. 16.On behalf of the 8th respondent, Mr. Lusweti submitted relying on their filed replying affidavit and submitted that since there is an ongoing inquest at Kakuma Law Courts, which is a judicial process, it should serve the interests of justice to the family of the deceased and that no evidence of insecurity or threats to the petitioner had been availed and that no evidence of any report of such threats made to the law enforcement agencies had been demonstrated. Counsel submitted that the application is an abuse of court process and devoid of merit hence it should be dismissed with costs. 17.In brief rejoinder Ms Muema for the petitioner submitted that this court has inherent jurisdiction to make any orders and that the withdrawal petition was before the hearing and determination of the petition and that they had written to UNHCR about the insecurity. That the inquest had come up three times but the investigating officer has not been traced hence the petition should be reinstated. Determination 18.I have carefully considered the application dated 5/12/2025 and the responses thereto as well as the oral submissions for and against the orders sought and the main issue for determination is whether there is any merit in the application. 19.I have already provided the historical and factual background of these proceedings leading to the withdrawal of the petition on account that the public inquest into circumstances leading to the demise of the petitioner’s brother at the 1st respondent’s residence had since been initiated at Kakuma Magistrate’s Court. 20.I add that the facts as pleaded in the petition show that the petitioner and the deceased were brothers and refugees who had gone to the 1st respondent’s resort and after the petitioner left the deceased in the company of his friends, the petitioner was called after 45 minutes and informed that his brother had died after being found struggling in the swimming pool and was rushed to Kakuma Hospital. The post mortem report annexed show that he had injuries on his abdomen. 21.Rule 27 of the Mutunga Rules permits a petitioner on notice to the court and to the respondent, to apply to withdraw the petition or with leave of the court, to discontinue the proceedings. In this case, the court record shows that the petitioner’s counsel willingly applied to withdraw the petition and on no objection from the 1st & 8th respondents’ who were participating in the proceedings, the learned judge marked the petition as wholly withdrawn. The petitioner now wants the withdrawn petition to be reinstated and the question is whether that prayer can be sustained. 22.Although the Mutunga rules do not provide the effect of withdrawal of a petition and whether such withdrawn petition can be reinstated, Order 25 Rule 1 of the Civil Procedure Rules provides some guidance. It provides that :“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.” 23.The guide from the Civil Procedure Rules is that a withdrawal or discontinuance of a petition is not a bar or defence to any subsequent action. Put differently, a withdrawn suit can be instituted afresh and the defendant cannot plead res-judicata. In civil suits, a fresh suit is, however subject to the law of limitation of actions. 24.In Joseph Kipngetich Kori vs Litain Tea Factory Ltd, & 2 others [2018] eKLR, Mumbi Ngugi J (as she then was), faced with a situation where the plaintiff sought for orders reinstating the withdrawn suit stated as follows, persuasively, and I concur that:“In my view, there is nothing in the application before me that would require the court to exercise its discretion and make an order under Order 45. An advocate properly on record exercised his authority to compromise a suit on behalf of a client. The notice of withdrawal was filed on the basis that the parties had compromised the suit. There is no error apparent on the record, no discovery of new evidence that was not available to the parties at the time of withdrawal, nor is there any other sufficient clause that would allow the court to exercise its discretion in favour of the applicant shown.” 25.In the present case, the petitioner claims that the public inquest is a sham, that the post mortem report shows that the deceased suffered injuries and not drowning that caused his death and that the investigating officer does not attend court. Additionally, that the 1st respondent and the state have refused to produce CCTV footage at the scene where the deceased is suspected to have been killed. Further, that the petitioner is being threatened as a witness. 26.I notice that the petition annexes copies of the post mortem report showing the cause of death which is not drowning and therefore that information was with the petitioner when he filed this petition. 27.Further, the petition sought to unravel circumstances surrounding the petitioner’s brother’s death in a bid to bring the perpetrators to book and the petitioner claims that the 1st respondent’s management adamantly refused to release the CCTV footage and any investigations report relating to the murder of his brother. He accuses the respondents of refusing to prosecute the accused persons for the murder of his brother. 28.However, the letter from ODPP dated 10/8/2025 directing a public inquest was clear that further investigations into what caused the death of the deceased had not yielded a clear answer hence, there was a disconnect between what the witnesses state and the result of the post mortem examination. The ODPP directed a public inquest as examination and cross examination may give some answers they are looking for. 29.It is therefore incorrect for the petitioner to allege that the inquest is a sham when the inquest is a legal and judicial process that is investigatory in nature and may unravel the circumstances under which the deceased met his death. 30.The petitioner was not an eye witness and no eye witness has come out with evidence linking a specific person to the demise of the deceased. CCTV is a useful tool of gathering evidence, indeed, but the public inquest court has power to summon any person or to direct that the CCTV footage at the scene to be produced to aid in establishing whether it captured the surroundings where the deceased met his death. 31.The petitioner claims that the investigating officer does not attend court. However, that is a matter which his advocate can raise with the trial court and the ODPP to summon the investigating officer to attend court and testify. 32.Further, on the alleged threats by the 1st respondent, it is important to know that any alleged threats to the petitioner as a witness or for being a relative to the deceased and pursuing justice cannot be taken lightly. However, such threats can only be addressed by the petitioner reporting to the law enforcement agencies to take action against those issuing threats. This court cannot provide a blanket protection on the basis of alleged threats there is no evidence that the police have received a report on threats and ignored to take action in which event, a report would be made to the 8th respondent IPOA or to the ODPP who is leading the public inquest proceedings. 33.Additionally, vulnerable witnesses are expected to seek protection from the witness protection Agency which will seek witness protection orders from court and the petitioner’s counsel ought to know this process very well. 34.On allegation of the inquest being an afterthought, the petitioner has not sought any orders stopping the inquest. He has not availed any independent investigation report to show that the inquest is not necessary, considering the advisory and directive by ODPP dated 18/8/2025. 35.Parties must have faith in our criminal justice institutions because that is where it starts, from investigations to eventual prosecution, where there is sufficient evidence to mount a prosecution. The prosecution cannot be directed to do that which is impossible just to satisfy a complainants or families of victims of offences. The prosecution must be left to act professionally and except where there is evidence of ineptitude, this court cannot direct them on what or how to do their work or execute their constitutional mandate. 36.The petitioner having voluntarily withdrawn the petition to pave way for a public inquest process, cannot return to court to revive the petition on account that the ongoing inquest is an afterthought or is a sham yet that legal process has not been concluded. 37.Even after conclusion of the process of inquest, the petitioner cannot seek to reinstate the withdrawn petition as there is nothing to be reinstated, following the withdrawal. All that the petitioner can do, is to file a fresh petition, as circumstances are likely to have changed, for appropriate reliefs since a withdrawal is not a bar or a defence to filing of a fresh petition. It only ends the proceeding that was filed and closed. 38.For the above reasons, I find the notice of motion dated 5/12/2025 to be devoid of merit. It is hereby dismissed with no orders as to costs and this file is closed. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF JUNE 2026R.E ABURILIJUDGE