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ELCOtherNot stated in judgment· [2024] KEELC 6659 (KLR)

Mwangi v Shulie & 2 others (Environment & Land Miscellaneous Case E075 of 2023) [2024] KEELC 6659 (KLR)

Environment and Land Court
11 July 2024
MMM.D. Mwangi
603 words in judgment
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The bottom line

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The Environment and Land Court confirmed that a party can freely withdraw a miscellaneous application before hearing, with no costs awarded against them.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi, delivered by M.D. Mwangi, J on 11th July 2024, dealt with a Notice of Motion dated 18th September 2023 in which the Applicant, John Kibiribiri Mwangi, sought orders compelling the 1st and 2nd Respondents to produce the original certificate of title for property LR No.209/4966 (I.R.11802) registered in the name of Kusumben Bhaskerrao Himabhai Patel, an order directing the 3rd Respondent to discharge a charge registered against the property, and an order transferring the property into the Applicant's name. The motion was brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Sections 31 and 101 of the Land Registration Act, 2012, and Articles 40 and 159(2)(d) & (e) of the Constitution. Before the application could be heard, the Applicant filed a Notice of Withdrawal under Order 25 Rule 1 of the Civil Procedure Rules on 27th March 2024, wholly withdrawing the suit. The court held that although Order 25 contemplates a suit subject to various stages before being set down for hearing, its provisions apply to a miscellaneous application with necessary modifications. Since directions on hearing had not been given by the date of withdrawal, the Applicant was at liberty to withdraw. The court marked the matter as withdrawn and made no orders as to costs. None of the substantive prayers was determined on the merits.

Key legal issues

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01

Whether a miscellaneous application can be wholly withdrawn under Order 25 Rule 1 of the Civil Procedure Rules

Holding

Yes. Order 25 applies to suits filed under the Civil Procedure Rules, including miscellaneous applications, with necessary modifications.

Reasoning

The court noted that Order 25 contemplates a suit filed under the Civil Procedure Rules subject to various stages before being set down for hearing. Since this matter was initiated by way of a miscellaneous application, the provisions of Order 25 must be applied with necessary modifications. The Notice of Withdrawal was filed before directions on hearing had been given, so the Applicant was at liberty to withdraw.

p. 2
02

Whether the Notice of Withdrawal of suit was effective

Holding

Yes. The Applicant was at liberty to withdraw the matter under Order 25, and the matter was marked as withdrawn with no orders as to costs.

Reasoning

The Notice of Withdrawal dated 26th March 2024 was filed on 27th March 2024, before directions on hearing of the matter had been given. Under Order 25 Rule 1, a plaintiff may wholly discontinue the suit against all or any defendants before setting down for hearing, and such withdrawal shall not be a defence to any subsequent action.

p. 2

Legal principles established

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  • A plaintiff may wholly discontinue a suit by notice in writing before the suit is set down for hearing, and the provisions of Order 25 apply to a suit initiated by way of miscellaneous application with necessary modifications.

Court orders

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  1. 1.The matter shall be marked as withdrawn
  2. 2.The court makes no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Land Registration Act, 2012Sections 31 and 101
  • Constitution of KenyaArticles 40 and 159(2)(d) & (e)
  • Civil Procedure RulesOrder 25 Rule 1
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act; Sections 31 and 101 of the Land Registration Act, 2012; Articles 40 and 159(2)(d) & (e) 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, "Mwangi v Shulie & 2 others (Environment & Land Miscellaneous Case E075 of 2023) [2024] KEELC 6659 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6659/eng@2024-10-11

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