Oyugi v Teachers Service Commission & 4 others (Petition E015 of 2025) [2026] KEELRC 1592 (KLR) (4 June 2026) (Ruling)

Oyugi v Teachers Service Commission & 4 others (Petition E015 of 2025) [2026] KEELRC 1592 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1592 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Petition E015 of 2025 K Ocharo, J June 4, 2026 IN THE MATTER OF: THE SUPREMACY OF THE CONSTITUTION, THE PRESERVATION OF ITS VALUES AND RINCIPLES, INCLUDING THE VALUE OF LEADERSHIP AND INTERGITY & PUBLIC SERVICE. AND IN THE MATTER OF: THE CONSTITUTIONALITY OF THE ONGLING RECRUITMENT OF THE CHIEF EXECUTIVE OFFICER, TEACHERS SERVICE COMMISSION AND IN THE MATTER OF: CONSTITUTIONALITY OF SECTION 16(2) OF TEACHERS SERVICE COMMISSION ACT AND IN THE MATTER OF: VIOLATIONS AND/OR THREATENED VIOLATIONS OF ARTCILES 1,2,10,19,20,21,24,27,73,232(g) (h) AND (i) OF THE CONSTITUTION. Between Thomas Mosomi Oyugi Petitioner and The Teachers Service Commission 1st Respondent The National Assembly 2nd Respondent The Cabinet Secretary Minsitry Of Education 3rd Respondent The Hon. Attorney General 4th Respondent and Cpa Dr. Adano Salad Kadubo, PhD Interested Party Ruling Introduction. 1.Public Interest Litigation [PIL] marks a paradigm shift away from the traditional adversarial legal system and towards the enforcement of collective rights and public duties on behalf of the public. An important procedural question arising from this shift is whether a petitioner has the right to unilaterally withdraw the petition once the court has taken cognisance of it. In PIL, the right to withdraw is not absolute and is instead subject to robust judicial oversight. In private litigation, the doctrine of dominus litis gives the plaintiff complete dominion over the suit and its resolution. In PIL, however, the petitioner acts as a representative of a public grievance, meaning the court acts as a fiduciary, a trustee of the public interest. Background 2.On the 8th of April 2026, when the petition herein came up for mention to check on the filing of the respective submissions by the parties, for and against the petition, Counsel for the Petitioner indicated to this Court that the Petitioner had filed a Notice of Withdrawal of the Petition and sought that the same be given effect and the Petition be marked as withdrawn. Having in mind the principles mentioned in the introductory part of this ruling and the stipulations of Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, this Court directed that a formal application be filed for withdrawal. 3.In accordance with the Court's directions, the Petitioner filed a Notice of Motion Application dated 10th April 2026, the subject of this ruling. Pursuant to the Court's directions, the application was canvassed by way of written submissions. The Application by the Petitioner 4.In the above-mentioned application, the Petitioner seeks;I.This Honourable court be pleased to wholly withdraw the petition dated 2025 with no orders as to costs.II.The costs of this application be provided for. 5.The application is premised on the grounds set out on the face thereof, and the supporting affidavit sworn on 10th April 2026, by the Petitioner. 6.The petitioner states that Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules expressly permits a petitioner, upon notice to the Court and to the Respondent, to apply to withdraw a petition or, with leave of the Court, to discontinue the proceedings, and as such, the present Application is properly before this Honourable Court. 7.On 18th February 2026, he instructed his present advocates to withdraw the Petition on account of pressing personal circumstances and unforeseen commitments which have materially constrained his ability to effectively and consistently participate in and sustain the prosecution of this Petition to its logical conclusion, and in compliance with those instructions, the Petitioner's Advocates duly proceeded to file a Notice of Withdrawal dated 18th February 2026. 8.He further states that his Counsel appeared before this Court on 8th April 2026 to formally mark the Petition as withdrawn; however, the 1st Respondent raised objections, alleging, without any lawful or factual basis, that he was abusing the court process. 9.The 1st Respondent further alleged that he had initiated parallel proceedings concerning the same subject matter. However, these allegations are entirely unfounded, unsubstantiated, and made in bad faith, as the Petitioner has not commenced any such proceedings, is unaware of any similar proceedings, and has consistently acted within the boundaries of the law and relevant procedural regulations. 10.He asserted that his decision to withdraw the present Petition is voluntary, made in good faith, and exercised in accordance with his undoubted right under the law, and that it does not amount to, nor constitute, an abuse of the court process, or an admission of any wrongdoing on the part of the Petitioner. 11.The present Petition was instituted as bona fide public interest litigation aimed at advancing and safeguarding constitutional values and principles, including leadership, integrity, transparency, and accountability in public service. It was not actuated by personal gain, malice, or any collateral purpose. Accordingly, public interest litigants who approach the court in good faith ought to be encouraged, or at the very least not penalized, where they act responsibly and elect to withdraw proceedings when circumstances render continued litigation impracticable. 12.Furthermore, the Petitioner has promptly, at the earliest reasonable opportunity, sought the withdrawal of the Petition. The Petition remains unheard and undetermined on its merits. The Respondents are likely to suffer exceptional or prejudicial harm as a result of the sought withdrawal. 13.It is further asserted that it is now trite that costs are compensatory, not punitive, and that the Court ought not to employ costs as a tool to discourage litigants, particularly public-spirited litigants, from accessing justice or invoking the Court's constitutional jurisdiction. Imposing adverse costs upon the Petitioner in the present circumstances would amount to penalizing a litigant who has acted responsibly, in good faith, and in deference to the integrity of the judicial process. 14.Further, withdrawal of proceedings is a recognised and lawful procedural step which may properly be undertaken where circumstances render continued litigation impracticable, and such withdrawal ought not, without more, be construed as improper conduct. The 1ST Respondent’s Opposition 15.The Respondent vehemently opposed Petitioner’s application, premised on the grounds set out in the affidavit of Dr. Jamleck Muturi John, their Chairman. 16.It is argued that the Petitioner's application to withdraw the current petition constitutes a serious abuse of the court process, undertaken in bad faith and with malice, with the primary aim of undermining the interests of justice. The 1st Respondent asserts that the litigation history in this matter clearly reveals this. 17.By the Notice of Motion Application and Petition all dated 25th May, 2025, the Petitioner filed the instant Petition seeking to stop the recruitment of the 1st Respondent's Secretary/ Chief Executive Officer. The said Petition was described as a Public Interest Litigation. 18.It is further stated that on 27th May, 2025, the Petitioner obtained Temporary Conservatory orders stopping the recruitment exercise pending the hearing of his Application dated 25th May, 2025. 19.He subsequently sought and obtained several extensions of the Conservatory Orders, as the Court dealt with the Joinder Application filed by a party who sought to join the Petition to support the Petitioner's position. 20.Subsequently, after a period of almost eight months, on 29th January, 2026, the Court rendered its Ruling on the Petitioner's Application dated 25th May, 2025, dismissing the Application for lack of merit. 21.The 1st Respondent further states that upon the dismissal of the Petitioner's Application, an unprecedented number of Petitions were filed in several courts seeking similar orders, which had been denied in the instant Petition. The Petitions were: -a.Kiambu High Court constitutional petition no. e006 of 2026: Simon Kariu Kimaita vs Teachers Service Commission & 3 othersb.Nairobi ERLC petition no. e038 of 2026: Issack Lango Guyo vs Teachers' Service Commission & 3 othersc.Mombasa ELRC petition no. e003 of 2026: Collins Omondi Oduor vs TSC Teachers Service Commission & 2 others. 22.The Respondent urges the Court to take Judicial Notice of the following unprecedented coincidences relating to the manner in which the Petitioner has conducted himself: -a.A new matter being Kiambu High Court Constitutional Petition No. E006 of 2026: Simon Kariu Kimaita Vs. Teachers Service Commission & 3 Others was filed on 3rd February, 2026, barely four days after the Petitioner's Application for Conservatory Orders in the Petition herein was dismissed by the Honourable Court for lack of merit.b.The Petitioner in Kiambu High Court Constitutional Petition No. E006 of 2026: Simon Kariu Kimaita Vs. Teachers Service Commission & 3 Others obtained Ex parte Conservatory Orders stopping the recruitment of the Commission's CEO, a process that had been cleared to proceed by a court of competent jurisdiction.c.Immediately, the Petitioner in the Kiambu High Court Constitutional Petition No. E006 of 2026: Simon Kariu Kimaita Vs. Teachers Service Commission & 3 Others obtained Ex parte Conservatory Orders stopping the recruitment of the Commission's CEO, the Petitioner herein, abruptly filed a Notice of withdrawal of the entire Petitionsd.The Petition and the Application in the Kiambu High Court Constitutional Petition No. E006 of 2026: Simon Kariu Kimaita Vs. Teachers Service Commission & 3 Others are almost word-for-word identical in content, structure, and grounds to the Petitioner's Application and Petition filed herein. It is merely a smokescreen change in the names of the Parties and the Court.e.The law firm representing the Petitioner in the instant Petition also represents a group of Interested Parties in the Kiambu Petition. The said Interested Parties fully support the Petition.f.The lawyer who appeared for the Interested Party herein is now representing the Petitioner in the Kiambu Petition.g.Nairobi ELRC Petition No. E038 of 2026: Issack Lango Guvo vs Teachers Service Commission & 3 Others and Mombasa ELRC Petition No. E003 of 2026: Collins Omondi Oduor Vs Teachers Service Commission & 2 Others were also filed immediately after the Petitioner lost the Application for Conservatory Orders.h.Fortunately for the 1st Respondent (TSC), the Courts in both cases were vigilant and did not grant any ex parte Conservatory Orders.i.The two Petitions were also a copy-and-paste of the Application and the Petition herein.upon being served with the pleadings in the three Petitions, and on advice of its Counsel, the Commission deliberated on the same and instructed its Counsel to file an Application to set aside the Orders issued in the Kiambu Petition. 23.On 5th March, 2026, the Commission filed a comprehensive Application before the Kiambu High Court in which the Commission informed the Court that the Petition in Kiambu was a violation of the sub judice Rule, while the Application was Res judicata, having been conclusively determined by this Honourable Court. 24.In their response to the Commission's application in the Kiambu matter, particularly regarding the issues of sub judice and Res Judicata, both the Petitioner and the proposed Interested Party notably attached copies of the purported notices of withdrawal pertaining to this specific petition. 25.The 1st Respondent asserts that the aforementioned scenarios are not simply coincidental. Utilising basic reasoning, it is evident that the Petitioner herein, having been unsuccessful in his Application for Conservatory Orders, has either indirectly lodged another Petition in the Kiambu High Court or is collaboratively engaging with the Petitioner there to undermine the interests of justice and seek another opportunity. How did the Petitioners in Kiambu acquire their Notices of Withdrawal? 26.The decision to withdraw this Petition (immediately after the Petitioner's Application for Conservatory Orders was dismissed and upon the Petitioner in Kiambu High Court securing Ex Parte Conservatory Orders) is intended to clear legal hurdles raised by the Commission in the Kiambu Matter. 27.The 1st Respondent further states that no plausible reasons have been placed before the Court to demonstrate reasons for the withdrawal of the Petition. The Petitioner has failed to provide particulars of the alleged personal commitments warranting the withdrawal of the Petition. 28.The Petitioner is contradicting himself when he alleges that the Petition was based on public interest considerations while at the same time raising issues of personal commitments. 29.It is unconscionable for the Petitioner to drag the 1st Respondent into Court for 12 months, waste scarce public judicial resources, and drain scarce public resources in defending the case, only for him to wake up one day and allege undisclosed personal commitments as a reason for withdrawing a public interest suit. 30.Further, it is in the interest of Justice that directions on the disposal of the Petition issued by this Honourable Court on 29th January, 2026, be enforced to enable the Court to conclude this matter. 31.The 1st Respondent asserts that, under Rule 27 of the Mutunga Rules, withdrawal of a Petition can occur only with the leave of the Court. Granting leave in this case will be unfair, punitive to the 1st Respondent, capricious, and dangerous to the efficient administration of Justice. 32.There has been a leadership vacuum in the sensitive office of the Commission Secretary/ CEO, who is the Accounting Officer of the Commission and the chief administrator charged with the responsibility to manage on a day-to-day basis the public teaching sector in general. The Rejoinder 33.In a further replying affidavit, the Petitioner states that the Replying Affidavit sworn by the Chairman of the 1st Respondent is substantially speculative, argumentative, and laden with generalised accusations and conclusions unsupported by evidence. It appears intended to divert this Honourable Court from the narrow and specific question presently before it, namely, whether leave should issue permitting withdrawal of the Petition, rather than whether collateral allegations and suspicions against me should be entertained and adjudicated upon. 34.Contrary to the 1st Respondent’s allegations, the instant application is neither an abuse of court process nor prompted by bad faith, malice or improper motive. Rather, it is a lawful invocation of procedural rights available to litigants, made openly, candidly and in good faith within the framework contemplated by the Constitution and the applicable Rules of procedure governing constitutional litigation. 35.He denies the allegations that he either directly or indirectly initiated, financed, coordinated, encouraged, facilitated or participated in the filing of the various proceedings referred to by the 1st Respondent, in the affidavit sworn by its Chairman. The elaborate narrative advanced by the 1st Respondent purporting to establish a connection between him and the litigants in those matters is founded entirely on conjecture, coincidence and assumptions unsupported by any factual material and no evidence whatsoever. 36.The allegation that he facilitated or supplied pleadings or notices of withdrawal to parties in the alleged related proceedings is unfounded. Pleadings and court documents filed in judicial proceedings are ordinarily matters of public record and can be obtained through lawful and independent means. Therefore, an adverse inference cannot reasonably be drawn against him from the mere fact that documents filed in one matter become available elsewhere. 37.The impression that the 1st Respondent wants the Court to form about the legal representation in this matter and the various matters cannot be sustained for good reason. Litigants are constitutionally entitled to legal representation of their choice, and advocates routinely act in multiple proceedings involving similar questions of law and public importance. The mere appearance of advocates in separate matters cannot constitute proof of coordination, conspiracy, or abuse of court process. 38.The Petitioner further asserts that, contrary to the allegation of the 1st Respondent, he has not been "playing ping pong" with the judicial process. Throughout these proceedings, he has openly engaged in the litigation, adhered to the Court's directives, and comported himself within the legal framework accessible to all litigants. Furthermore, no evidence has been presented to demonstrate concealment, fraud, or manipulation on his part. 39.Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules merely requires leave of Court for withdrawal and neither establishes a presumption against withdrawal nor creates a legal obligation compelling a litigant to prosecute proceedings indefinitely against his wishes. 40.He contends that although Rule 27(3) confers upon this Court the discretion to proceed with a petition despite its withdrawal, such authority is of an exceptional nature and must be exercised with prudence and restraint, contingent upon the presence of compelling, exceptional, and demonstrable circumstances, rather than on mere suspicion, assumptions, or dissatisfaction expressed by an opposing party. 41.The 1st Respondent has not shown any exceptional circumstances that would justify forcing the continuation of this Petition. The claims about prejudice are speculative and exaggerated, as litigation inherently consumes time and public resources. These consequences alone are insufficient to compel unwilling litigants to continue the proceedings. The Petitioner’s Submissions 42.The Petitioner’s Counsel submits that the law vests this Court with jurisdiction under Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, to permit a petitioner to withdraw constitutional proceedings upon giving due notice to the Court and the other parties. Accordingly, the present Application is properly before this Honourable Court. To buttress this point, reliance is placed on Harry John Paul Arigi & 2 others v Board, Kenya Ports Authority & 2 others [2012] eKLR. 43.The Petitioner's Counsel further submits that the decision to withdraw the Petition is entirely voluntary, bona fide, and grounded on genuine personal circumstances that have materially affected his ability to continue prosecuting the matter. The Application is not driven by any collateral purpose, stratagem, or attempt to manipulate the judicial process. It is anchored on an honest and candid reassessment of circumstances and constitutes a lawful exercise of the procedural right to withdraw proceedings under the applicable rules. 44.The Petition was initiated in good faith as a constitutional challenge in the public interest, aimed at ensuring adherence to Articles 10, 73, and 232 of the Constitution. Fundamentally, the litigation concerns integrity, accountability, and transparency in public recruitment procedures. The current Application for withdrawal does not diminish the bona fides of the original claim, nor does it transform the proceedings into an abuse of court process solely by virtue of the withdrawal. 45.Counsel further submits that the legal threshold for abuse of court process is well settled and requires clear evidence of improper use of judicial process for ulterior purposes, vexation, oppression or manipulation of the Court process, and cannot be proved by mere allegation or inference. The 1st Respondent's allegations are speculative and are intended to shift this Court from the only issue before it, namely, whether leave should be granted to withdraw the Petition, into collateral accusations against the Petitioner. 46.In the case of Luka v Narok Bursaries Management Board & 6 others; Narok County Assembly (Interested Party) (Constitutional Petition E016 of 2023) 120241 KEHC 2523 (KLR) (.13 March 2024) (Ruling), the court noted thus;“In addition, there is nothing which shows that the petitioner was motivated by any ulterior motive or personal gain in the filing as well as the withdrawal of the petition. There is also no evidence of any collusion amongst the parties in the withdrawal of the petition or to defeat public interest.”This applies to the instant matter. 47.The fact that advocates appear in multiple constitutional matters does not, on its own, prove wrongdoing, since parties are entitled to legal representation of their choice and counsel commonly act in related constitutional litigation. 48.In addition, nothing before this Honourable Court demonstrates that the Petitioner was actuated by any ulterior motive or personal gain, either in filing or in seeking to withdraw the present Petition. The Petitioner has acted openly and candidly, within the procedural framework contemplated under Rule 27 of the Mitunga Rules, without concealment or procedural abuse. 49.Counsel further submits that the withdrawal of the Petition shall not cause any legal, procedural, or substantive prejudice to the Respondents or any other party in these proceedings. The matter has not been heard and determined on its merits, and no final judgment has been rendered that confers enforceable rights or obligations. Accordingly, the litigation remains at an interlocutory stage, at which no party has obtained a conclusive legal advantage. The withdrawal, therefore, simply restores the parties to their pre-litigation position. 50.It is further submitted that withdrawal promotes judicial efficiency and prevents the unnecessary consumption of judicial time and resources on a matter the Applicant can no longer sustain. Courts have repeatedly emphasised the importance of efficient case management under Article 159 of the Constitution. Accordingly, continuing with a matter against the wishes of the instituting party would serve no meaningful adjudicatory purpose. It would instead burden the Court with a dormant dispute lacking prosecutorial intent. 51.The Respondents have not demonstrated any specific prejudice beyond general dissatisfaction with the discontinuation of proceedings. Mere inconvenience or perceived strategic disadvantage does not amount to legal prejudice in the eyes of the law. The threshold requires demonstrable harm affecting legal rights or procedural fairness. None has been shown in this case. The Application, therefore, passes the non-prejudice test. 52.In conclusion, the Petitioner submits that no party stands to suffer prejudice capable of outweighing the Applicant's right to withdraw proceedings. The interests of justice, efficiency, and fairness are better served by allowing withdrawal rather than compelling continuation of abandoned litigation. The Petitioner thus urges the court to find that the Application causes no prejudice and should be allowed as prayed. 1st Respondent’s Submissions 53.Counsel for the 1st Respondent submits that the intended withdrawal of the Petition is not in good faith, is intended to defeat the ends of justice, amounts to an abuse of the Court process, and ought therefore to be declined. 54.The issues hereunder are suggested by Counsel as those that emerge for determination: -1.Whether the withdrawal of the Petition is automatic upon the filing of a Notice of Withdrawal;2.Whether the Petitioner has established sufficient grounds to warrant leave to withdraw the Petition;3.Whether this Honourable Court should invoke Rule 27(3) of the Mutunga Rules and proceed with the hearing and determination of the Petition notwithstanding the intended withdrawal;4.Who should bear the costs of the Application? 55.It is submitted that the applicable law governing the withdrawal of Constitutional Petitions is Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules). 56.The stated provision is crafted such that the withdrawal of a Constitutional Petition is not automatic and cannot be effected solely on the basis of a Petitioner filing a Notice of Withdrawal or expressing the intention to withdraw. The law explicitly mandates prior leave from the Court and further obligates the Court to hear all relevant parties before deciding whether to grant such leave. 57.Rule 27(3) grants this Honourable Court unrestricted discretion to continue with the hearing of a Petition notwithstanding the Petitioner's intention to withdraw it. 58.The rationale for the Rule is self-evident. Constitutional litigation, particularly Public Interest Litigation, transcends the narrow interests of the individual litigant and implicates broader constitutional values, public accountability and the administration of justice. 59.It is further submitted that it is settled law that constitutional petitions, particularly those pertaining to public interest, constitutional interpretation, or the enforcement of rights, are not solely private proceedings; therefore, the court maintains discretion under Rule 27(3) to proceed with hearing the matter despite the Petitioner's desire to withdraw it. 60.To buttress the foregoing submissions, Counsel places reliance on the following authorities;a.Harry John Paul Arigi & 2 others v Board, Kenya Ports Authority & 2 others [20161 KECA 141 (KLR) where the Court held: -“The role of the court in the withdrawal of a constitution petition is reinforced by Rule 27(3), whose effect is that, notwithstanding the petitioner's wish to withdraw the petition or to discontinue the proceedings, the court may, for reasons to be recorded, still proceed to hear and determine the petition. We are satisfied that the right of a petitioner to withdraw a constitutional petition is circumscribed by Rule 27; that Rule 27, like all the other Rules enshrined in the 2013 rules, is constitutionally underpinned and is not a mere technicality, and that the rule is justified, given the public significance of an application alleging violation of the Bill of Rights, literally the heart of the Constitution.“In Beijing Industrial Designing Institute V Lagoon Development Ltd (supra), We Held, Citing Castanho V. Brown & Root (uk) Ltd & Another (1981) 1 ALL ER 143, that even where a party has a right to withdraw his suit, the court has inherent Jurisdiction to stop such withdrawal if it constitutes abuse of the process of court. In the circumstances of this appeal, we are satisfied that the learned judge did not err by setting aside the appellant's purported notice of withdrawal of the petition"b.In Opiyo & 2 others v Kenya Revenue Authority & 2 others; Institute of Certified Public Accountants & another (Interested Parties) (Commercial Petition E013 of 2025) Justice Gikonyo quoted with approval the holding in Luka v Narok Bursaries Management Board & 6 others held: -“The jurisprudence coming through is that public interest litigation is not a party’s private suit which he may withdraw or discontinue at whims. Any withdrawal or discontinuance of such proceedings as constitutional petitions must be sanctioned by a Court. The requirement of leave of the court also protects public interest litigation from abuse by parties for ulterior or personal motives. For instance, Odunga JA always states that some parties file public interest litigation with the sole aim of having them dismissed, thereby blocking any other litigation on the subject on the basis of res judicata or the doctrine of functus officio. Others file public litigation cases for personal gain or to settle scores. And, the list could be long………..To avoid any prejudice to public interest, I decline leave to withdraw this petition. I let the petition survive and continue breathing. Let the petitioners move any of the courts for transfer of one of the petitions to either of the High courts - a decision that will be made after hearing all the parties, including the interested parties, in accordance with rule 27 of the Mutunga Rules. It bears repeating that the course adopted prevents prejudice to, and offers an opportunity to all parties to participate in this public litigation and even take over the petition to secure public interest" 61.On the 2nd issue, Counsel submits that the Application has not been brought in good faith and is part of a deliberate scheme to circumvent adverse findings of this Honourable Court. The chronology of events set out in the Replying Affidavit clearly demonstrates a coordinated and calculated abuse of the Court process. 62.The Court of Appeal in Muchanga Investments Limited vs Safaris Unlimited (Africa) Limited & 2 Others [20091 eKLR described abuse of Court process as the improper use of the judicial process by a party in Litigation aimed at irritating, annoying or oppressing the opposite party or interfering with the administration of justice 63.On the third issue, Counsel for the 1st Respondent submits that the Petitioner expressly instituted this matter as a Public Interest Litigation challenging the recruitment of the Secretary/Chief Executive Officer of the Teachers Service Commission. By invoking public interest considerations as the basis of the Petition, the Petitioner cannot now retreat and seek refuge in alleged "personal commitments" whose particulars have not even been disclosed to the Court. 64.The lengthy delay caused by these proceedings has significantly prejudiced the 1st Respondent and hindered the effective fulfilment of its constitutional and statutory duties. Therefore, the Court should protect not only the integrity of its processes but also the wider public interest involved in this case. 65.Lastly, it is submitted that this is a proper case for the invocation of Rule 27(3) of the Mutunga Rules. The Rule expressly empowers the Court, for reasons to be recorded, to proceed with the hearing of a Petition notwithstanding the Petitioner's wish to withdraw or discontinue proceedings. This is in light of the fact that:I.The Petition was instituted as a Public Interest LitigationII.The Petition has been pending before the Court for approximately one year and is nearing conclusion;III.The Petitioner enjoyed Conservatory Orders for nearly nine months and is curiously withdrawing the Petition upon dismissal of his Application;IV.The intended withdrawal coincided with the filing of parallel proceedings in different Courts and the securing of similar Conservatory Orders;V.The withdrawal appears calculated to defeat objections on sub judice and res judicata raised in the Kiambu matter;VI.The 1st Respondent has suffered substantial prejudice due to prolonged uncertainty in the recruitment process of its Secretary/CEO. Analysis and Determination 66.I have carefully considered the Application, the grounds upon which it is premised, the affidavit in support thereof, the 1st Respondent’s replying affidavit, the Petitioner’s further affidavit, and the parties’ Counsel’s respective submissions, and two issue emerge for determination; should the Petitioner be allowed to withdraw the petition herein? and if the answer to the first issue is in the negative, how should the petition be proceeded with. 67.What distinguishes traditional litigation from Public Interest Litigation (PIL) is the nature of the rights being adjudicated. Private litigation is generally characterised as "vindictive” and aims to restore a specific individual's position prior to the occurrence of the legal wrong, emphasising the bilateral relationship between the plaintiff and the defendant. Conversely, PIL is typically considered "reparative” and is concerned with addressing broader social harms and the state's fulfilment of its public responsibilities. 68.It is essential to recognise that the PIL’s legal construct acknowledges that the state has certain obligations towards the citizenry as a whole. When the state’s duties are violated, the resulting injury is considered collective. Consequently, pursuing a breach case has implications that extend beyond the immediate parties involved. This distinction necessitates a departure from the procedural rules typically governing private litigation. The court’s primary objective is not solely to resolve the dispute but also to promote the rule of law and uphold constitutional principles. The concept of the "socialisation” of the case implies that the Petitioner cannot be regarded as the exclusive owner of the grievance. 69.With the utmost respect, in my opinion, given the explanation provided by the Petitioner, which, as will be demonstrated herein, is overly generalised and vague, and the response to the assertions of the First Respondent, there appears to be a lack of thorough understanding of the distinction outlined above 70.It is important to emphasise that, in Public Interest Litigation, the petitioner’s role is frequently described as a "relator” or "catalyst." This characterisation is crucial for understanding the rationale underlying the prohibition against withdrawal without the court's permission. The petitioner does not possess the cause of action in the same manner as a private plaintiff holds a tort claim. Instead, the petitioner serves as an instrument for the court to recognise and assess public injury. 71.In my view, Rule 27 of the Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013 [the Mutunga Rules], which no doubt has a constitutional underpinning as appreciated in the case of Harry John Arigi [supra], was designed in appreciation of the shift, the principles and purpose hereinabove brought out. 72.In my interpretation of the Rule, two matters are abundantly clear. First, a petitioner who has instituted a constitutional petition, particularly one touching public interest, does not enjoy an unfettered or automatic right to withdraw the petition at will. Second, withdrawal can only be effected with leave of the court, and such leave is not granted as a matter of course. 73.The rationale behind this position is readily discernible. Public interest litigation transcends the private interests of the individual petitioner. In fact, once the court takes cognisance of the petition, the petitioner's identity is unimportant compared to the grievance itself. 74.In exercising the discretion whether to allow a petition to be withdrawn, the court must consider the nature of the issues raised, the stage the proceedings have reached, whether the withdrawal would prejudice the public interest, and whether there exist compelling reasons to allow the matter to be discontinued. 75.The question that needs to be addressed at this point is whether the Petitioner has demonstrated any compelling reason for withdrawing the instant petition. The Petitioner cites personal commitments and constraints that prevent him from proceeding further with the Petition. The reason is presented in such a generalised and vague manner that no reasonable court can regard it as a compelling reason to attract the leave for withdrawal of the petition. 76.The Respondent raised the issue regarding the insufficiency of the reason presented by the Petitioner for the withdrawal of the Petition, and particularly that it was vague and generalised. The Petitioner had a chance to clarify the reason when he filed a further affidavit. However, he chose to maintain its generalised, vague form in both the further affidavit and his submissions. 77.On 29th January 2026, this Court gave directions that the Petition be canvassed by way of written submissions and set timelines for the filing of submissions for and against it. It then fixed the matter for mention to check compliance and to fix the Petition for judgment. In essence, the proceedings in respect of the Petition are at their tail end. Technically, what is outstanding is the preparation and delivery of the judgment. To the extent, therefore, that the unexplained personal commitment upon which the Petitioner wants the petition withdrawn is of no relevance. The stage at which the matter is does not require his active participation. 78.The court’s power to refuse the withdrawal of public interest litigation derives from a number of established legal principles, including the power of the Court to prevent the abuse of its process. In the Machakos High Court Petition Number 305 of 2012, Peter Makau & 6 others v The Permanent Secretary, Ministry of Energy & others, the Court declined to withdraw the petition upon a finding that the court process was being abused by the Petitioner. 79.In Sheela Barse v Union of India, AIR 1988 SC 2211, the Supreme Court of India stated;“A person or a body of persons cannot approach court with ulterior motive or design to wrench some personal benefit by putting another within the clutches of law and using the court for a device only to that end but not interested in the result of the petition.” 80.I have carefully considered the chronology of events following the dismissal of the conservatory order application herein, as rendered by the Respondent. This includes the vigorous filing of multiple Petitions on the same subject matter as in the instant petition, the incessant pursuit of a conservatory order in the other petitions after I had declined to grant one in this matter without rest until one was obtained in the Kiambu High Court petition, and the bid to withdraw this petition and the other three that are before me immediately after the obtaining the order. I am not convinced that the filing of those other petitions is an accidental coincidence. No doubt, forum shopping is evident here. The court process is being abused. The intended withdrawal of the instant petition is no doubt intended to aid the Kiambu High Court Petition from suffering the effect of the doctrine of sub judice and res judicata. 81.This Court has not lost sight of the fact that one of the most obvious reasons for judicial oversight of withdrawal is prevention of collusion and the “buying off” of public grievances. 82.This Court bears the responsibility to safeguard institutional integrity. Permitting the discontinuation of the petition herein, when it is evident that this Court's process is being misused, would not be consistent with the obligation to fulfill this duty. 83.By reason of the foregoing premises, and for the interest of public interest, institutional integrity and the finality of public interest adjudication, this Court declines the leave to withdraw the petition. 84.Considering that the Court had given directions on the manner of the disposal of the petition, which the petitioner did not abide by, the petition is hereby slated for judgment on 2nd July 2026. 85.Orders accordingly. READ, SIGNED, AND DELIVERED THIS 4TH DAY OF JUNE 2026.OCHARO KEBIRAJUDGE