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ELCDismissedE&L Case arising from E&L Case No. 124 of 2017 (application dated 14th July 2020)· [2021] KEELC 3238 (KLR)

Evans Kemboi Koech v Mary Juster Chepleting; Agricultural Finance Corporation (Interested Party) [2021] KEELC 3238 (KLR)

Environment and Land Court
21 April 2021
4,447 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an eviction bid because withdrawing your lawsuit ends it completely—you cannot seek fresh orders without a live case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) disposed of the plaintiff's Notice of Motion dated 14th July 2020 seeking vacant possession and eviction of the defendant from L.R. No. 3209/1, Arbabuch Area, Moiben, Uasin Gishu County, with eviction by court bailiff and police supervision in default. The plaintiff relied on the judgment of Ombwayo, J delivered on 11th January 2019 in E&L Case No. 124 of 2017, which dismissed the defendant's counterclaim and found the plaintiff a bona fide purchaser at a public auction conducted by the Agricultural Finance Corporation as interested party. The defendant opposed, arguing the plaintiff had withdrawn his suit by consent and thus had no locus, that eviction was never pleaded, and that no eviction orders were made in the judgment. The court framed two issues: the effect of the withdrawal of the suit and whether eviction orders were available. Applying Order 25 Rule 1 of the Civil Procedure Rules and authorities on the finality of withdrawal and the binding nature of consent orders, the court held that the plaintiff's suit, having been withdrawn by consent on 25th May 2018, came to an end; the plaintiff ceased to be a plaintiff and had no locus to file the eviction application. The passages in the 2019 judgment on the auction sale were obiter explaining dismissal of the counterclaim, and no eviction was pleaded or granted. The application, described as dead on arrival and an afterthought, was dismissed with each party bearing their own costs.

Key legal issues

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01

Effect of the plaintiff's withdrawal of his suit by consent

Holding

The withdrawal by consent on 25th May 2018 was binding and unchallenged; upon withdrawal the suit came to an end and the plaintiff ceased to have a live claim on which to anchor the eviction application

Reasoning

The court invoked Order 25 Rule 1 of the Civil Procedure Rules and authorities holding that withdrawal terminates the suit and that a notice of withdrawal cannot be revoked or resuscitated. The consent order had not been varied or challenged, so the plaintiff's suit was withdrawn and only the defendant's counterclaim was dismissed.

p. 5
02

Whether eviction could be granted where it was not pleaded or ordered

Holding

No. The plaintiff never specifically prayed for eviction in his plaint and the judgment of 11th January 2019 did not order eviction; the passages on the auction sale were obiter explaining dismissal of the counterclaim

Reasoning

The court held that the plaintiff's application for eviction was an afterthought seeking to extract from the judgment relief never sought or granted. An order of eviction cannot issue on an application unsupported by a substantive claim. The application was therefore 'dead on arrival' and had no locus supporting it.

p. 6

Legal principles established

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  • The withdrawal of a suit terminates it entirely and the withdrawing plaintiff ceases to be a plaintiff before the court, with no capacity to seek further relief by application
  • A consent order is binding on the parties and cannot be set aside or varied except on recognized grounds such as fraud, collusion or misapprehension
  • Eviction orders cannot be granted in an application where eviction was neither pleaded nor granted in the underlying judgment

Court orders

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  1. 1.The Notice of Motion dated 14th July 2020 seeking eviction orders is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure RulesOrder 45 rule 2
  • Land ActSections 96, 99 and 26

Cases cited (9)

  • Mary Wambui Njuguna v William Ole Nabala & 9 others
    [2018] eKLR
  • Celine Wambui Kigwe v National Bank of Kenya & 2 others
    [2020] eKLR
  • Bomet Beer Distributors Ltd & another v Kenya Commercial Bank Ltd & 4 others
    [2005] eKLR
  • Dysseleer Mireille Lesoipa v Manuel Lesoipa Alias Emmanuel Lesoipa
    [2017] eKLR
  • William Koross (Legal personal Representative of Elijah C.A. Koross) v Hezekiah Kiptoo Komen & 4 others
    [2015] eKLR
  • M & E. Consulting Engineers Limited vs Lake Basin Development Authority & Another
    [2015] eKLR
  • Kenya Commercial Bank Ltd. -v- Specialised Engineering Company Ltd.
    1982 KLR 485
  • Smt Raisa Sultana Begam & others vs. Abdul Qadir & others
    AIR(1966 ALL 318)
  • Bahati Shee Mwafundi v. Elijah Wambua
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the interlocutory application in the land dispute

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, "Evans Kemboi Koech v Mary Juster Chepleting; Agricultural Finance Corporation (Interested Party) [2021] KEELC 3238 (KLR)", Case Analysis (2021). E&L Case arising from E&L Case No. 124 of 2017 (application dated 14th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3238/eng@2021-04-21

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