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ELCOtherEnvironment & Land Petition E012 of 2023· [2023] KEELC 20385 (KLR)

Muthee & 4 others v Damah Alliance Limited & 7 others; Law Society of Kenya & another (Interested Parties)

Environment and Land Court
2 October 2023
EWE. K. Wabwoto
585 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that withdrawing a constitutional petition requires a proper application to the court, not just a notice, and rejected unproven duress claims.

What this practically means

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Executive summary

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The five Petitioners, through the firm of Abdiaziz & Co Advocates, filed a petition dated September 6, 2023 against Damah Alliance Limited and others concerning land and related constitutional grievances. The 2nd to 5th Petitioners subsequently instructed MA Odhiambo & Co Advocates and filed a notice of discontinuance and withdrawal of the petition with no order as to costs, giving no reasons. They also filed separate affidavits denying that they had ever consented to the filing of the petition. When the matter came up for directions on September 18, 2023, Counsel Abdiaziz, purporting to act for all Petitioners, opposed the withdrawal, contending it had been made under duress and coercion. The court construed Rule 27(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and, applying Harry John Paul Aigi & 2 others v Board of Kenya Ports Authority & 2 others, held that withdrawal of a petition is not automatic and is not effected merely by notice; a petitioner may have to apply to the court to withdraw a petition already filed. On the duress allegation, the court found that Counsel's statement was made from the bar and was countered by the express affidavits of the 2nd to 5th Petitioners. The court accordingly allowed the withdrawal by the 2nd to 5th Petitioners with no order as to costs, while permitting the 1st Petitioner to proceed with the petition against the Respondents.

Key legal issues

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01

Whether withdrawal of a constitutional petition requires more than notice

Holding

Withdrawal is not automatic and not anchored merely by notice; the petitioner may have to apply to the court to withdraw a petition already filed

Reasoning

The court construed Rule 27(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which permits a petitioner either to apply on notice to withdraw the petition or, with leave of the court, to discontinue. Relying on Harry John Paul Aigi, the court held that notice alone does not automatically terminate a petition; an application to the court is required.

p. 2
02

Whether the withdrawal by the 2nd to 5th Petitioners was made under duress

Holding

The duress allegation, made from the bar by Counsel Abdiaziz, failed against the express affidavits sworn and filed by the 2nd to 5th Petitioners denying consent to the filing of the Petition

Reasoning

Counsel's objection that the withdrawal was procured by duress and coercion was unsupported by any sworn material, being a statement from the bar. It was countered by express affidavits of the 2nd to 5th Petitioners in which they denied ever consenting to the filing of the Petition. The court therefore allowed the withdrawal.

p. 2

Legal principles established

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  • Withdrawal of a petition under Rule 27(1) is not automatic and is not effected merely by notice; the petitioner may have to apply to the court to withdraw a petition already filed

Court orders

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  1. 1.Withdrawal of the Petition by the 2nd to 5th Petitioners allowed with no order as to costs
  2. 2.The 1st Petitioner at liberty to proceed with the Petition as against the Respondents

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 27(1)

Cases cited (1)

  • Harry John Paul Aigi & 2 others vs. Board of Kenya Ports Authority & 2 others
    [2016] eKLR

    That Rule 27(1)(a) allows a petitioner who wishes to withdraw a petition to apply to withdraw it after giving notice to the court and the respondent

Jurisdiction invoked
Constitution of Kenya, 2010 (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Rule 27(1)

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, "Muthee & 4 others v Damah Alliance Limited & 7 others; Law Society of Kenya & another (Interested Parties)", Case Analysis (2023). Environment & Land Petition E012 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20385/eng@2023-10-02

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