[2023] KEELC 20385 (KLR)
The court found that withdrawal of a constitutional petition by some petitioners is not automatic upon filing a notice; it requires the court's leave or application. In this case, the 2nd to 5th Petitioners filed affidavits denying consent to the original petition and sought to withdraw. The objection by Counsel...
Source-derived case information.
- Citation
- [2023] KEELC 20385 (KLR)
- Parties
- Applicant: David Muthami Muthee; Applicant: Ann Wanjiru Ndichu; Applicant: Francis Gateri; Applicant: Patrick Mwaniki Ndwigah; Applicant: Johnson Mjoroge Ephantus; Respondent: Damah Alliance Limited; Respondent: Mohamed Ker Mohamed; Respondent: Dawid Sheik Abdulrahman; Respondent: The Inspector General of Police; Respondent: The Nairobi City County; Respondent: CECM, Built Environment & Urban Planning Nairobi City County; Respondent: The Chief Land Registrar; Respondent: The Attorney General; Interested Party: Law Society of Kenya; Interested Party: The Kenya National Human Rights Commission
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Petition E012 of 2023
- Procedural Posture
- Constitutional Petition / Ruling on Withdrawal/discontinuance of Petition by Some Petitioners
- Outcome
- Withdrawal of the 2nd to 5th Petitioners from the Petition allowed; 1st Petitioner may proceed.
- Judges
- EK Wabwoto
- Legal Topics
- Withdrawal of Petition, Practice and Procedure, Duress and Coercion, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Muthami Muthee
Applicant
Ann Wanjiru Ndichu
Applicant
Francis Gateri
Applicant
Patrick Mwaniki Ndwigah
Applicant
Johnson Mjoroge Ephantus
Applicant
Damah Alliance Limited
Respondent
Mohamed Ker Mohamed
Respondent
Dawid Sheik Abdulrahman
Respondent
The Inspector General of Police
Respondent
The Nairobi City County
Respondent
CECM, Built Environment & Urban Planning Nairobi City County
Respondent
The Chief Land Registrar
Respondent
The Attorney General
Respondent
Law Society of Kenya
Interested Party
The Kenya National Human Rights Commission
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Withdrawal/discontinuance of Petition by Some Petitioners
Legal Issues
- 1 Whether the 2nd to 5th Petitioners can validly withdraw from the Petition without leave of court.
- 2 Whether the withdrawal by the 2nd to 5th Petitioners was made under duress or coercion.
- 3 Whether the 1st Petitioner may proceed with the Petition independently.
Ratio Decidendi
The court found that withdrawal of a constitutional petition by some petitioners is not automatic upon filing a notice; it requires the court's leave or application. In this case, the 2nd to 5th Petitioners filed affidavits denying consent to the original petition and sought to withdraw. The objection by Counsel Abdiaziz, alleging duress, was unsupported by evidence and contradicted by the affidavits. The court accepted the withdrawal of the 2nd to 5th Petitioners with no order as to costs, holding that the 1st Petitioner may proceed with the petition independently against the Respondents.
Court Disposition
Withdrawal of the 2nd to 5th Petitioners from the Petition allowed; 1st Petitioner may proceed.
Orders
- The withdrawal of the Petition by the 2nd to 5th Petitioners is allowed with no order as to costs.
- The 1st Petitioner is at liberty to proceed with the Petition as against the Respondents.
Full Case Text
Judgment text and source record
49 paragraphs
Muthee & 4 others v Damah Alliance Limited & 7 others; Law Society of Kenya & another (Interested Parties) (Environment & Land Petition E012 of 2023) [2023] KEELC 20385 (KLR) (2 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20385 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Petition E012 of 2023
EK Wabwoto, J
October 2, 2023
Between
David Muthami Muthee
1st Petitioner
Ann Wanjiru Ndichu
2nd Petitioner
Francis Gateri
3rd Petitioner
Patrick Mwaniki Ndwigah
4th Petitioner
Johnson Mjoroge Ephantus
5th Petitioner
and
Damah Alliance Limited
1st Respondent
Mohamed Ker Mohamed
2nd Respondent
Dawid Sheik Abdulrahman
3rd Respondent
The Inspector General of Police
4th Respondent
The Nairobi City County
5th Respondent
CECM, Built Environemnt & Urban Planning Nairobi City County
6th Respondent
The Chief Land Registrar
7th Respondent
The Attoney General
8th Respondent
and
Law Society of Kenya
Interested Party
The Kenya National Human Rights Commission
Interested Party
Ruling
1. The Petitioners herein through the law firm of Abdiaziz & Co Advocates instituted this Petition vide a Petition dated September 6, 2023. Subsequently thereafter the 2nd to 5th Petitioner instructed the law firm of MA Odhiambo & Co Advocates and filed a notice of discontinuance and withdrawal of the said Petition with no order as to costs. No reasons were given for the said withdrawal in the said notice. However, the 2nd & 5th Petitioners also filed separate affidavits the gist of which they denied ever consenting to the filing the said Petition.
2. On September 18, 2023 when the said Petition was scheduled for directions, Counsel Abdiaziz who purportedly was acting for all Petitioners opposed the said withdrawal by the 2nd to 5th Petitioners and argued that the same had been made under duress.
3. TheConstitutionof Kenya [2010] (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013 provides at Rule 27(1) that:“7(1)The Petitioner may:a.On notice to court and the Respondent apply to withdraw the Petition, orb.With leave of the court discontinue the proceedings.”
4. In the case of Harry John Paul Aigi & 2 others vs. Board of Kenya Ports Authority & 2 others [2016] eKLR., it was held that;“Rule 27(1) (a) allows a Petitioner who wishes to withdraw a petition to apply to withdraw the same after giving notice of his intention to both the court and the Respondent.”
5. Clearly, under that provision, the withdrawal of the Petition is not automatic and is not anchored merely by notice. The said rule is very clear that a Petitioner may have to apply to the court to withdraw a Petition already filed.
6. In the instant case, Counsel Abdiaziz objected to the said withdrawal by the 2nd – 5th Petitioners on the reasons that the same had been made through duress and coercion. However, statement by counsel was adduced from the bar which and was countered by the express affidavits sworn and filed herein by the 2nd to 5th Petitioners.
7. In the circumstances, I shall proceed to allow the withdrawal of the Petition by the 2nd to 5th Petitioners with no order as to costs. However, the 1st Petitioner is at liberty to proceed with the said Petition as against the Respondents.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF OCTOBER, 2023. E. K. WABWOTOJUDGE