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ELCOtherMombasa HCCC No. 95 of 2011· [2016] KEELC 1074 (KLR)

Tsangawa Ngala Chome v Town Council of Mariakani & another [2016] KEELC 1074 (KLR)

Environment and Land Court
11 March 2016
OAO. A. Angote
3,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who allegedly used a forged court order to get a title deed was blocked from withdrawing his own lawsuit to escape scrutiny.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (O. A. Angote J) on a Notice by the Plaintiff, administrator of the estate of Mumba Chome Ngala, to withdraw and discontinue his 2011 suit against the Town Council of Mariakani and Ketraco concerning land in Mariakani-Mitangoni. The 2nd Defendant, Interested Parties and State Counsel opposed the withdrawal, pointing to the Plaintiff's acquisition of a title deed for the whole suit land in 2014 during the pendency of the suit via an order alleged to be forged, and the release of Kshs.26,000,000 deposited with the District Commissioner contrary to an injunction issued by Odero J in Petition No. 15 of 2013. The court held that under Order 25 Rule 2 of the Civil Procedure Rules, a suit set down for hearing may only be discontinued with the consent of all parties or leave of the court; the suit had been fixed for hearing by Mukunya J, so leave was required and leave is not a formality. Following the Court of Appeal's decision in Beijing Industrial Designing & Research Institute v Lagoon Development Limited, the court held that quasi-criminal proceedings cannot be terminated at the instance of the alleged perpetrator, and that withdrawal could not be permitted before the forgery and the release of the Kshs.26,000,000 were dealt with. The court struck out the Notice of Withdrawal with costs.

Key legal issues

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01

Whether leave of the court was required to withdraw the suit

Holding

Leave was required because the suit had been fixed for hearing on 22nd and 23rd July 2014 by Mukunya J, even though it did not proceed

Reasoning

Order 25 Rule 1 permits discontinuance by notice, but Order 25 Rule 2 requires written consent of all parties or leave of the court where a suit has been set down for hearing. Setting down means fixation of the substantive suit for hearing, not the hearing of applications; whether it actually proceeded is inconsequential. The record showed the matter was fixed for hearing, so withdrawal without leave was improper.

p. 5
02

Whether withdrawal should be allowed pending investigation of the alleged forged order and the release of Kshs.26,000,000

Holding

No - withdrawal is refused until the forgery and the release of the compensation money are dealt with

Reasoning

The title deed the Plaintiff obtained during the suit's pendency arose from an order alleged to be forged, and Kshs.26,000,000 deposited with the District Commissioner was released contrary to an injunction issued by Odero J. Following the Beijing case, quasi-criminal proceedings cannot be terminated at the instance of the alleged perpetrator; allowing withdrawal would let the Plaintiff steal a match and undermine the supremacy of the law and the dignity of the court.

p. 5

Legal principles established

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  • Where a suit has been set down for hearing, it may only be discontinued by written consent of all parties or with the leave of the court, and such leave is not a mere formality
  • Criminal or quasi-criminal proceedings ought not to be terminated at the exclusive instance or discretion of the party alleged to be a perpetrator of a criminal or quasi-criminal act
  • A party may be denied the right to withdraw a suit where withdrawal would allow him to benefit from his own alleged wrongdoing and undermine the court's orders

Court orders

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  1. 1.Notice of Withdrawal and Discontinuance of the suit dated 7th January 2016 struck out
  2. 2.Plaintiff to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure RulesOrder 25 Rule 2
  • Trust Land Actsetting apart process

Cases cited (2)

  • Beijing Industrial Designing & Research Institute Vs Lagoon Development Limited
    Malindi Civil Appeal No. 1 of 2015
  • Johnson Vs Grant
    (1923) SC 789 at 790
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land in question (file transferred to this court by Omollo J on that ground); application under Order 25 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tsangawa Ngala Chome v Town Council of Mariakani & another [2016] KEELC 1074 (KLR)", Case Analysis (2016). Mombasa HCCC No. 95 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1074/eng@2016-03-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.