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ELCDismissedNot stated in judgment· [2024] KEELC 4028 (KLR)

Guyo & 2 others v Mohamed & 6 others (Environment & Land Petition E024 of 2023) [2024] KEELC 4028 (KLR)

Environment and Land Court
7 May 2024
1,230 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 1st and 2nd Defendants filed a notice of motion dated 9th October 2023 seeking to strike out the Plaintiffs' plaint dated 18th September 2023 on grounds that it was sub judice and an abuse of court process, and seeking to bar the Plaintiffs from instituting further suits over the suit property (land demarcated under PDP No. 196037S, 'Wakole Farm', measuring approximately 36.62 Ha in Tana River County). The application, anchored on Sections 1A, 1B, 3A, 7 and 8 of the Civil Procedure Act and Articles 48, 50 and 159(2)(d) of the Constitution, was served on the Plaintiffs but was unopposed. The Defendants contended that the suit duplicated a earlier Garissa suit (Land Case No. E003 of 2023) filed by the same Plaintiffs against the 1st Defendant, in which status quo orders had been issued on 25th September 2023, arguing that although the Plaintiffs filed a notice of withdrawal in that suit on 28th September 2023, it remained unendorsed and thus of no effect. The court held that under Order 25 Rule 1 of the Civil Procedure Rules, a notice of withdrawal of a suit not set down for hearing takes effect upon service on all parties, without need for endorsement; only an interim application, not the suit, had been set down for hearing in Garissa. The withdrawal was therefore effective, the Garissa suit ceased to exist, and the doctrine of res sub judice under Section 6 of the Civil Procedure Act could not apply. The court also declined to bar the Plaintiffs from filing fresh proceedings, noting Order 25 preserves the liberty to file a new suit. The application was dismissed with costs on 7th May 2024.

Key legal issues

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01

Whether the suit is res sub judice given the earlier Garissa suit over the same property

Holding

The suit is not res sub judice because the Garissa suit was effectively withdrawn by notice dated 28th September 2023

Reasoning

Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit pending before a competent court. The Garissa suit concerned the same 36.62 Ha parcel (PDP No. 196037S) with substantially similar parties and reliefs. However, since it was not set down for hearing, the notice of withdrawal took effect upon service and the suit ceased to exist, leaving nothing pending to trigger section 6.

p. 2
02

Whether the notice of withdrawal in the Garissa suit required endorsement to take effect

Holding

No endorsement was necessary; the withdrawal was effective upon service on all parties

Reasoning

Order 25 Rule 1 permits a plaintiff, at any time before setting down the suit for hearing, to discontinue by written notice served on all parties. In the Garissa suit only an interim injunction application had been slotted for hearing, not the suit itself. The applicants did not contest service of the notice of withdrawal, so the withdrawal was effective without further endorsement.

p. 3

Legal principles established

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  • A notice of withdrawal under Order 25 Rule 1 takes effect upon service on all parties where the suit has not been set down for hearing, and no further endorsement is required
  • A party has an absolute right to withdraw a suit not set down for hearing under Order 25 Rules 1 and 2(1)
  • Once a prior suit is effectively withdrawn, it ceases to exist and the doctrine of res sub judice cannot apply to a subsequent suit

Court orders

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  1. 1.The application dated 9th October 2023 is dismissed with costs
Jurisdiction invoked
Sections 1A, 1B, 3A, 7 and 8 of the Civil Procedure Act; Articles 48, 50 and 159(2)(d) of the Constitution of Kenya

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, "Guyo & 2 others v Mohamed & 6 others (Environment & Land Petition E024 of 2023) [2024] KEELC 4028 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4028/eng@2024-05-07

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