Abdulkadir Ahmed Rahimkhan & another v County Govt of Kwale & 5 others [2020] KEELC 3567 (KLR)
The bottom line
#Kenya's Environment and Land Court let landowners withdraw their lease case after settling out of court, striking out the county's counterclaim.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to discontinue a suit already set down for hearing should be granted where the claim has been satisfied out of court
Leave was granted; the suit was marked discontinued under Order 25 rule 2(2) of the Civil Procedure Rules 2010
Order 25 rule 2 permits discontinuance by consent or by leave of the court once a suit is set down for hearing. No consent was forthcoming from the 1st and 6th defendants, so leave was required. The plaintiffs had obtained a renewed lease and Certificate of Lease, meaning they had secured the substance of their claim; continuing the litigation would serve no purpose and the court should not stand in the way of an amicable settlement absent mischief.
Effect of the mid-suit lease renewal on the defendants' counterclaim
The counterclaim of the 1st and 6th defendants was overtaken by events and struck out
The counterclaim sought a declaration that the expired lease had reverted to the County Government of Kwale and a mandatory injunction for vacant possession. With the lease renewed and a Certificate of Lease issued, a declaration of reversion was no longer possible and the counterclaim became superfluous. Amendment could not cure this because the suit itself had lost its substratum; the County's remedy, if aggrieved by the new title, is a fresh suit to challenge it.
Whether the renewal of the lease while the suit was pending was contemptuous or offended lis pendens
No; a consensual settlement during pendency does not offend lis pendens, and the defendants were not barred from compromising the suit by the preservation orders of 21 February 2018
The court held that the preservation orders were no bar to defendants compromising the suit. Parties are encouraged to settle disputes out of court, and where they do so without mischief the court should not stand in the way. Lis pendens is not contravened because the court need not pronounce on matters no longer in dispute. No contempt or scheme to defeat the counterclaim was found.
Costs following withdrawal of the suit
Each party to bear their own costs despite the plaintiffs having effectively obtained what they sought
Although the plaintiffs obtained their renewed lease and might ordinarily be seen as successful litigants deserving costs, the dispute was resolved amicably out of court rather than by the court's determination. In those circumstances the court declined to award costs against the 1st and 6th defendants and found the just outcome was that each party bears their own costs.
Legal principles established
#- Where a litigant has already obtained from the defendant the relief sought in the suit, there is no substratum left and withdrawal is a valid course
- Out-of-court settlement during the pendency of a suit is not contrary to lis pendens, as the court need not pronounce on matters no longer in dispute
- A party aggrieved by a title issued pursuant to an out-of-court settlement must file a fresh suit to challenge it; amendment of a now-superfluous counterclaim cannot rescue a suit that has lost its substratum
Court orders
#- 1.The application for withdrawal is allowed and the plaintiffs' suit is marked as discontinued
- 2.The counterclaim of the 1st and 6th defendants, having been overtaken by events, is struck out
- 3.Each party to bear his/her own costs
- Jurisdiction invoked
- Order 25 Rule 12(2) (rule 2) of the Civil Procedure Rules 2010 - leave to discontinue/withdraw a suit set down for hearing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdulkadir Ahmed Rahimkhan & another v County Govt of Kwale & 5 others [2020] KEELC 3567 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3567/eng@2020-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.