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ELCDismissedNot stated in the judgment· [2021] KEELC 394 (KLR)

Charles Kiptarbei Birech v Paul Waweru Mbugua & another [2021] KEELC 394 (KLR)

Environment and Land Court
15 December 2021
FNFRED NYAGAKA
5,378 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that once you withdraw a court case, it is gone forever and cannot be revived.

What this practically means

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Executive summary

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The Plaintiff, Charles Kiptarbei Birech, filed a Notice of Motion dated 7/06/2021 under Sections 1A, 1B and 3 of the Civil Procedure Act and Order 40 of the Civil Procedure Rules seeking to set aside the orders withdrawing his suit and to have the matter listed for hearing. He contended that the suit, concerning Plot No. 31 Kachibora, was withdrawn by consent on 3/12/2013 in good faith to allow the dispute to be settled in Kitale High Court Succession Cause No. 151 of 2011, but the Respondent reneged on that settlement agreement. The Respondent filed no response. The court identified three issues: the legal import of withdrawal of a suit; whether the threshold for setting aside a consent order was met; and the orders to issue. Holding that a withdrawn suit ceases to exist and cannot be revived by any means, the court reasoned that upon withdrawal the plaintiff lost capacity to act in the suit and the court became functus officio; the only recourse is a fresh suit if permitted. The court further found no proof of fraud, misrepresentation, coercion or mistake, noting that reneging on an agreement is not a recognized vitiating factor. The application, brought eight years after withdrawal with unexplained inaction, was dismissed with costs to the Respondents.

Key legal issues

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01

Legal effect of withdrawal of a suit under Order 25 of the Civil Procedure Rules

Holding

Withdrawal terminates the suit forever; there is no provision permitting reinstatement, and the plaintiff ceases to be a plaintiff with capacity to take further steps in the matter

Reasoning

Order 25 governs withdrawal and discontinuance. Once a suit is withdrawn by notice, leave or consent, it ceases to exist and no party remains in relation to it. The withdrawal does not trigger res judicata, so the only recourse is a fresh suit. A withdrawal that has taken effect cannot be revoked, and the court becomes functus officio over the file.

p. 3
02

Threshold for setting aside a consent order

Holding

The applicant failed to prove fraud, misrepresentation, coercion or mistake; reneging on an underlying settlement agreement does not constitute a vitiating factor

Reasoning

The consent was entered voluntarily and in good faith by the applicant's own account. Allegations of a settlement agreement tied to the succession cause were unproved on a balance of probabilities, and no evidence showed how the succession cause ended or that the respondents reneged. Reneging on an agreement is not fraud, mistake or misrepresentation known to contract law.

p. 5
03

Effect of unexplained delay in challenging the consent

Holding

The application filed eight years after withdrawal, with a further four years' inaction after knowledge of the concluded succession cause, exhibited inexcusable indolence

Reasoning

The plaintiff knew by 9/10/2017 that the succession cause had concluded yet never moved the court to challenge the consent until 2021. The delay amounted to pure inaction; a party who delays seals his fate. Counsel also misled the court into recording the consent a second time when no suit existed.

p. 4

Legal principles established

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  • Once a suit is withdrawn or discontinued, it ceases to exist and cannot be reinstated or revived; the only recourse is a fresh suit if the law permits
  • A consent order has contractual effect and can only be set aside on grounds which would justify setting aside a contract
  • Upon withdrawal, the court becomes functus officio and cannot entertain further proceedings in the withdrawn suit

Court orders

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  1. 1.The application dated 7/06/2021 is dismissed
  2. 2.Dismissal with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3
  • Civil Procedure Rules 2010Order 40 Rules 1, 2, 3, 4 & 5
  • Civil Procedure Rules 2010Order 17 Rule (3)(1)
  • Civil Procedure RulesOrder 25 (Rules 1, 2(1), 4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Environment and Land Court ActSection 3(1)
  • Constitution of Kenya 2010Article 159(2)(d)

Cases cited (15)

  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Avenue Car Hire & Another vs. Slipha Wanjiru Muthegu
    Civil Appeal No. 302 of 1997
  • Beijing Industrial Designing & Research Institute Vs. Lagoon Development Ltd
    (2015) eKLR
  • Antony Kayaya Juma v Humprey Ekesa Khaunya & Another
    [2004] eKLR
  • Priscilla Nyambura Njue v Geovhem Middle East Ltd; Kenya Bureau of Standards (Interested Party)
    [2021] eKLR
  • Nicholas Kiptoo Arap Korir Salat V. IEBC & 7 Others
    SC App. No. 16 of 2014
  • Bahati Shee Mwafundi v. Elijah Wambua
    [2015] eKLR
  • Smt. Rais Sultana Begam v Abdul Qadir & Others
  • George Mwangi Kinuthia v Attorney General
    [2019] eKLR
  • James Muchori Maina vs. Kenya Power & Lighting Company Ltd
    [2005] eKLR
  • Kenya Commercial Bank Ltd -vs- Benjoh Amalgamated Ltd
    Nairobi Civil Appeal No. 276 of 1997
  • Flora Wasike vs Destimo Wamboke
    (1988) 1 KAR 625
  • John Waruinge Kamau vs Phoenix Aviation Limited
    [2015] eKLR
  • M & E. Consulting Engineers Limited vs Lake Basin Development Authority & Another
    [2015] eKLR
  • Kenya Commercial Bank Ltd. -v- Specialized Engineering Company Ltd.
    1982 KLR 485
Jurisdiction invoked
Sections 1A, 1B, 3 of the Civil Procedure Act and Order 40 Rules 1, 2, 3, 4 & 5 of the Civil Procedure Rules 2010; Environment and Land Court Act Section 3(1)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charles Kiptarbei Birech v Paul Waweru Mbugua & another [2021] KEELC 394 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/394/eng@2021-12-15

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