[2024] KEELC 5927 (KLR)
The court found that the withdrawal of the statement and documents filed by the 1st Plaintiff would not prejudice any party. The court emphasized that the matter had been pending since 2018, with much time spent on peripheral issues rather than substantive hearing. The court applied the test of whether any party...
Source-derived case information.
- Citation
- [2024] KEELC 5927 (KLR)
- Parties
- Plaintiff: Rashid Mohamed Salim; Plaintiff: Ahmed Mohamed Suleiman; Plaintiff: Mohamed Suleiman Shazsy (Suing as Trustees of the Mazrui Community Development and Welfare WAKF Lands Trust and Members of the Mazrui Commuity); Plaintiff: Mombasa Cement Limited; Defendant: Abdul Gaffur Pasta
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 165 of 2018
- Procedural Posture
- Environment and Land Case / Ruling on Application to Withdraw Statement and Documents
- Outcome
- Application allowed with conditions.
- Judges
- EK Makori
- Legal Topics
- Withdrawal of Documents, Leave of Court, Prejudice to Parties, Costs in the Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rashid Mohamed Salim
Plaintiff
Ahmed Mohamed Suleiman
Plaintiff
Mohamed Suleiman Shazsy (Suing as Trustees of the Mazrui Community Development and Welfare WAKF Lands Trust and Members of the Mazrui Commuity)
Plaintiff
Mombasa Cement Limited
Plaintiff
Abdul Gaffur Pasta
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Withdraw Statement and Documents
Legal Issues
- 1 Whether the 1st and 3rd Plaintiffs should be granted leave to withdraw the statement and documents filed by the 1st Plaintiff.
- 2 Whether the withdrawal of the documents at this stage would prejudice any party.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the withdrawal of the statement and documents filed by the 1st Plaintiff would not prejudice any party. The court emphasized that the matter had been pending since 2018, with much time spent on peripheral issues rather than substantive hearing. The court applied the test of whether any party would be prejudiced by the withdrawal and concluded that there would be none. Accordingly, the court exercised its discretion to grant leave for the withdrawal, subject to conditions ensuring timely replacement and response, and ordered that costs be in the cause.
Court Disposition
Application allowed with conditions.
Orders
- Leave is granted to the 1st and 3rd Plaintiffs to withdraw the statement and documents filed by the 1st Plaintiff.
- Replacement statement and documents to be filed within 14 days.
Full Case Text
Judgment text and source record
30 paragraphs
Salim & 3 others v Pasta (Environment & Land Case 165 of 2018) [2024] KEELC 5927 (KLR) (18 September 2024) (Ruling)
Neutral citation: [2024] KEELC 5927 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case 165 of 2018
EK Makori, J
September 18, 2024
Between
Rashid Mohamed Salim
1st Plaintiff
ahmed Mohamed Suleiman
2nd Plaintiff
Mohamed Suleiman Shazsy (Suing as Trustees of the Mazrui Community Development and Welfare WAKF Lands Trust and Members of the Mazrui Commuity)
3rd Plaintiff
Mombasa Cement Limited
4th Plaintiff
and
Abdul Gaffur Pasta
Defendant
Ruling
1. The application dated 7th June 2024 significantly seeks that leave be granted to the 1st and 3rd Plaintiffs to withdraw Rashid Mohammed Salim's statement and the annexed documents filed and drawn by the law firm of Gichira and Company Advocates, the former advocates acting for the said Plaintiffs.
2. In an affidavit in support of the application, one Rashid Mohammed Salim (1st Plaintiff), deposed on 7th June 2024, avers that, at the time of filing the documents, he had not obtained consent and resolution from the Mazrui Community Development and Welfare Wakf Land Trust to file such statement and documents and that it is imperative that the same be withdrawn and fresh ones be filed.
3. It is averred that having understood the legal implications of his action, it will be fair to allow the application.
4. In opposition to the application, Defendant Abdulgaffur Pasta, in a replying affidavit, deposed on 19th June 2024, states that the first Plaintiff's statement did not require any resolution and is not disputed as to its veracity.
5. The Defendant believes that this is a delaying tactic deployed to stall the matter. Anybody disputing the same should seek to cross-examine the 1st Plaintiff.
6. The issue for the determination of this Court is whether to allow the withdrawal of the said statement and documents at this stage and who should bear the attendant costs.
7. The Court will reckon that this is a 2018 matter that has predominantly been active—not towards a hearing of the main suit but peripheral issues that have drained the Court in writing rulings that do not tend to dispose of the matter.
8. The test here is: If the statement and documents filed are withdrawn, will it prejudice any of the parties? In my view, the answer is no.
9. The Court will grant leave for the withdrawal of the statement and documents filed by the 1st Plaintiff under the following terms:a.The replacement should be done within 14 days.b.The Defendant can respond to the fresh-filed statements and documents within 14 days of service.c.The hearing date to remain as scheduled.d.Costs in the cause.
DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 18TH DAY OF SEPTEMBER 2024. E. K. MAKORIJUDGEIn the presence of:Ms. Shamsa and Mr. Maundu for the 1st, 2nd and 3rd PlaintiffsMr. Achoka, for the 4th PlaintiffMr. Oluga for the Defendants.Court Assistant: Happy