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ELCDismissedNotice of Motion dated 13th February 2024 in Petition dated 30th December 2016· [2024] KEELC 1592 (KLR)

Murambi (Suing on behalf of the Estate of the Late Vincent Wanyonyi Murambi) & 2 others v County Government of Bungoma & another (Petition 15 of 2016) [2024] KEELC 1592 (KLR)

Environment and Land Court
14 March 2024
3,219 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 refused to let petitioners abandon their case at the last minute, confirming you can't withdraw a suit freely once judgment is due.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 13th February 2024 in a petition filed on 30th December 2016 by the petitioners, owners of land title E.Bukusu/W.Kanduyi/1659, against the County Government of Bungoma and Kibabii University. The petition had alleged breach of constitutional rights arising from the creation of an open road over the suit land, and sought declarations, injunctions and damages. After the petition was fully heard between October and December 2023 and judgment fixed for 14th March 2024, the petitioners sought leave to discontinue and withdraw it, alleging that during the hearing the 2nd respondent's witness had testified that the 2nd respondent was not the owner of title E.Bukusu/W.Kanduyi/1660, contradicting the assumption underlying the petition. A notice of withdrawal filed on 3rd November 2023 had not been placed before the judge. The application was unopposed but the court, citing the Supreme Court's directive that unopposed applications must still be evaluated on merit, considered Order 25 of the Civil Procedure Rules and the Court of Appeal's decision in the Beijing case, which distinguishes withdrawal before setting down (an absolute right) from withdrawal after setting down (requiring consent or leave on just terms). The court found the withdrawal was made in bad faith, was an afterthought, and amounted to an attempt to steal a match after the petitioner's case, built on presumption without an official search, had crumbled. Invoking the court's inherent jurisdiction against abuse of process (Castanho v Brown & Root), the court dismissed the application with no order as to costs, leaving the judgment date intact.

Key legal issues

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01

Whether an unopposed application for leave to withdraw a petition should be granted automatically

Holding

No. Even an unopposed application must be subjected to merit evaluation by the court; leave under Order 25 Rule 2(2) is discretionary and must be exercised judiciously

Reasoning

Citing the Supreme Court in Gideon Sitelu Konchellah, the court held it has a duty to evaluate unopposed applications on merit, checking for jurisdictional impediments. Here, the petition had been fully heard, submissions filed and judgment date fixed. The petitioner's claim was built on presumption without an official search, and the withdrawal was made in bad faith as an afterthought, so the discretion was exercised against granting leave.

p. 2
02

The legal framework governing withdrawal and discontinuance of suits under Order 25 of the Civil Procedure Rules

Holding

Order 25 presents three scenarios: an absolute right to withdraw before setting down for hearing; withdrawal by written consent of all parties after setting down; or withdrawal by leave of court on just terms where no consent exists

Reasoning

The court adopted the Court of Appeal's exposition in Beijing Industrial Designing & Researching Institute v Lagoon Development Limited. Since this petition had been set down for hearing, evidence tendered viva voce, cases closed, submissions filed and judgment fixed, the petitioner could not simply walk away; the petitioner needed leave of court, which the court could refuse on terms where withdrawal would perpetrate injustice on respondents.

p. 4
03

Whether the petitioner's withdrawal amounted to an abuse of the court process

Holding

Yes. The withdrawal was an attempt to escape a crumbling case, made too late and in bad faith; the court invoked its inherent jurisdiction to prevent abuse of process

Reasoning

Relying on Castanho v Brown & Root (UK) Ltd, the court noted that a notice of discontinuance can be an abuse of process where used to obtain a collateral advantage. The petitioner realised after hearing that its claim, based on suspicion and conjecture without conducting an official search, was crumbling. The respondents had faithfully attended court since 2016, and judicial time had been expended. Withdrawal at that late stage would facilitate neither expeditious nor affordable resolution.

p. 5

Legal principles established

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  • Where a suit has been set down for hearing, it may only be discontinued with written consent of all parties or upon leave of court granted on terms as are just; the grant of leave is discretionary, not automatic
  • A court has inherent power to prevent a party from using a notice of discontinuance to obtain a collateral advantage or abuse the process of the court

Court orders

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  1. 1.The application dated 13th February 2024 is dismissed
  2. 2.No order as to costs (each party apparently to bear own costs since respondents filed no response)

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 1 and 2(2)
  • Civil Procedure RulesOrder 3, 7 and 11
  • Civil Procedure ActSection 3A

Cases cited (5)

  • Gideon Sitelu Konchellah vs. Julius Lekakeny Ole Sunkuli & 2 others
    [2018] eKLR
  • Beijing Industrial Designing & Researching Institute v Lagoon Development Limited
    [2015] eKLR
  • Republic v Export Processing Zones Authority & 2 others; London Distillers (K) Ltd & 3 others (Interested Parties) Ex parte Erdermann Property Limited
    [2020] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others
    SC App. No. 16 of 2014
  • Castanho V. Brown & Root (UK) Ltd & Another
    (1981) 1 ALL ER 143
Jurisdiction invoked
Article 162(2) of the Constitution (ELC jurisdiction), with the application brought under Order 25 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Murambi (Suing on behalf of the Estate of the Late Vincent Wanyonyi Murambi) & 2 others v County Government of Bungoma & another (Petition 15 of 2016) [2024] KEELC 1592 (KLR)", Case Analysis (2024). Notice of Motion dated 13th February 2024 in Petition dated 30th December 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1592/eng@2024-03-14

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