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ELCDismissedNot stated in the extract· [2024] KEELC 5412 (KLR)

Gisege & another (Suing as administrators of the Estate of Dorica Ondieki Gisege) v Chairman School Management Committee Daraja Mbili Mixed Secondary School (Environment & Land Case 56 of 2016) [2024] KEELC 5412 (KLR)

Environment and Land Court
16 July 2024
MSMunyao Sila
4,132 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisii confirmed that a suit withdrawn in 2019 cannot be revived years later without proving fraud or genuine mistake.

What this practically means

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Executive summary

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The applicants, personal representatives of the original plaintiff Dorica Ondieki Gisege (deceased), applied to reinstate a suit that had been withdrawn by order of Mutungi J on 20 May 2019. The original plaintiff had sued the defendant school for trespass onto Kisii Municipality/Block III/581; the defendant counterclaimed for nullification of her title. After the National Land Commission revoked her title in 2017, the plaintiff filed a judicial review suit, which Mutungi J dismissed on 27 July 2018, advising her to prosecute the pending substantive suit instead. She nonetheless proceeded with her application to withdraw the suit, which was allowed on 20 May 2019 with the defendant at liberty to pursue its counterclaim. After substitution of the deceased plaintiff, an amended plaint was filed in 2023, which Munyao Sila J struck out on 6 July 2023 as the suit had already been withdrawn. The applicants sought reinstatement, invoking Section 3A of the Civil Procedure Act. The court, relying on Priscila Nyambura Njue and Charles Kiptarbei Birech, held that a withdrawn suit cannot ordinarily be reinstated, though the court retains discretion in extremely compelling circumstances such as fraud or genuine mistake. No fraud or mistake was shown; the withdrawal was the conscious choice of the original plaintiff whom the applicants represent. The application was dismissed with costs, the suit remains withdrawn, and the amended plaint remains struck out, with only the defendant's counterclaim pending.

Key legal issues

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01

Whether a withdrawn suit can be reinstated

Holding

Only in extremely compelling circumstances such as fraud or genuine mistake; none existed here, so the application was dismissed

Reasoning

Order 25 confers a right to withdraw but no right to revoke withdrawal. The court accepted it may have discretion to reinstate in exceptional cases (fraud or genuine mistake), but here the original plaintiff consciously withdrew the suit after her judicial review motion was dismissed. Successors cannot reverse that choice, and the defendant should not be dragged back into litigation thought concluded.

p. 7
02

Effect of the withdrawal of 20 May 2019 on the amended plaint filed 19 May 2023

Holding

The withdrawal left no plaint capable of amendment; the amended plaint was properly struck out

Reasoning

Once the suit was withdrawn by Mutungi J's order of 20 May 2019, there was no pending suit for the personal representatives to amend. The court had earlier struck out the amended plaint as an error apparent on the face of the record, and that position was confirmed; only the defendant's counterclaim remains to be heard.

p. 7

Legal principles established

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  • A withdrawn suit cannot ordinarily be reinstated; the court's discretion to reinstate will only be exercised in extremely compelling circumstances such as fraud or genuine mistake, considering the parties' post-withdrawal conduct
  • Successors of a plaintiff cannot reverse the plaintiff's own deliberate decision to withdraw a suit

Court orders

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  1. 1.The application dated 24 November 2023 to reinstate the withdrawn suit is dismissed with costs
  2. 2.The suit of the original plaintiff remains withdrawn pursuant to the order made by Mutungi J on 20 May 2019
  3. 3.The purported amended plaint filed on 19 May 2023 remains struck out as ordered on 6 July 2023

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 25 (rules 1, 2, 3, 4, 5)
  • Civil Procedure RulesOrder 45

Cases cited (4)

  • Beijing Industrial Designing & Researching Institute v Lagoon Development Limited
    [2015] eKLR
  • Priscila Nyambura Njue v Geovhem Middle East Limited & another
    (Nairobi HCCC No 415 of 2016) [2021] eKLR
  • Charles Kiptarbei Birech v Paul Waweru Mbugua & another
    [2021] eKLR
  • George Mwangi Kinuthia v Attorney General
    [2019] eKLR
Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act invoked by applicants; application under Order 25 Civil Procedure Rules considered

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gisege & another (Suing as administrators of the Estate of Dorica Ondieki Gisege) v Chairman School Management Committee Daraja Mbili Mixed Secondary School (Environment & Land Case 56 of 2016) [2024] KEELC 5412 (KLR)", Case Analysis (2024). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5412/eng@2024-07-16

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