Ndovu Rock Limited v Weindaba & 3 others
The bottom line
#A Kenyan court confirmed you can freely withdraw a lawsuit before it's set for hearing, but you may still walk away without paying the other side's costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff could withdraw the suit without leave of court
Yes. The suit had not been set down for hearing, so under Order 25 Rule 1 the plaintiff had an absolute right to withdraw by written notice served on all parties; no leave was needed.
The court distinguished Order 25 Rule 1 and 2(1), where withdrawal is unconditional, from Rule 2(2), where leave and terms apply once a suit is set down for hearing. On the record the suit had not been set down, and the plaintiff had served the notice on all parties. The right to withdraw cannot be curtailed by a defendant's objection, and the court's role is limited to costs.
Whether the withdrawal should be subjected to payment of costs to the 2nd Defendant
No. Although costs normally follow the event under Section 27(1) of the Civil Procedure Act, the court ordered each party to bear their own costs.
The court acknowledged that costs follow the event and that ordinarily the plaintiff ought to pay costs since the 2nd Defendant had retained an advocate who filed documents and attended court. However, because the suit had not been set down for hearing at the time of withdrawal, the court exercised its discretion to order that each party bear their own costs.
Legal principles established
#- A plaintiff's right to withdraw a suit under Order 25 Rules 1 and 2(1) is absolute and requires no leave of court before the suit is set down for hearing
- A court cannot bar a party from withdrawing a matter; it may only make an order as to costs
Court orders
#- 1.The Notice of Withdrawal application dated 30th May, 2023 is found to have merit and is allowed in its entirety
- 2.The suit by the Plaintiff filed via a Plaint dated 18th January, 2022 and filed on 19th January, 2022 be and is hereby marked as withdrawn; the matter is closed
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Inherent jurisdiction of the High Court and Order 25 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndovu Rock Limited v Weindaba & 3 others", Case Analysis (2023). Environment & Land Case E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20217/eng@2023-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.