Bundotich Kimulgul & 29 others v Kenya Forest Service & 2 others [2021] KEELC 2885 (KLR)
The bottom line
#Once a Kenyan court endorses a notice of withdrawal under Order 25, the case is over for good—file fresh, and file fast.
What this practically means
#Executive summary
#Key legal issues
#Nature of the 27th July 2017 discontinuance order
The discontinuance was a unilateral withdrawal under Order 25 at the petitioners' request, not a consent order, so the respondents' consent-order setting-aside thresholds did not arise
The court traced the record of 27th July 2017: counsel for the petitioners failed to secure attendance of his witnesses or an adjournment, then applied under Order 25 for discontinuance, which the court endorsed with costs to the respondents. The extracted order itself contains no consent notation, so the authorities on setting aside consent orders relied on by the respondents were inapposite.
Effect of a notice of discontinuance under Order 25
Following BAHATI SHEE MWAFUNDI V ELIJAH WAMBUA, a notice of discontinuance terminates the suit and cannot thereafter be set aside, though where leave is required and not yet granted the position may differ per KOFINAF COMPANY LIMITED
The court adopted the principles in Bahati Shee Mwafundi and the Canadian authorities discussed in Kofinaf, noting that where withdrawal is complete upon court endorsement it cannot be revoked, but where leave has not yet been granted a court may permit recall in appropriate circumstances. Here the discontinuance had been endorsed, so it stood.
Authority and delay
The applicant acted alone without authority from the other petitioners, offered no explanation for the three-year delay, and the respondents would be prejudiced by the reinstatement
The applicant described himself inconsistently and produced no evidence of the other petitioners' authority. He gave no reason for not seeking review, setting aside or appeal soon after the order of 27th July 2017. The delay would prejudice the respondents by stalling taxation of their bill of costs. The application was accordingly an abuse of process.
Legal principles established
#- A discontinuance under Order 25 terminates the suit and the court will not set aside the notice of discontinuance once it takes effect
- The order of 27th July 2017 discontinuing the petition was not a consent order
Court orders
#- 1.The application filed on 18th September 2019 is dismissed
- 2.Costs of the application to the respondents
- Jurisdiction invoked
- Order 25 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bundotich Kimulgul & 29 others v Kenya Forest Service & 2 others [2021] KEELC 2885 (KLR)", Case Analysis (2021). Petition dated 14th October 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2885/eng@2021-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.