Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in judgment

Makitoni & 2 others v Mukhwana (Suing as the administrator of the Estate of Teresina Musebe) & 3 others; Masinde (Suing as the administrator of the Estate of Michael Watamba) (Interested Party) (Enviromental and Land Originating Summons 109 of 2000) [2025] KEELC 1332 (KLR)

Environment and Land Court
19 March 2025
2,151 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to let plaintiffs abandon their land case verbally, ruling that withdrawal requires a written notice formally served on all parties.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kitale (C.K. Nzili, J) deals with an oral application by the plaintiffs to withdraw their suit concerning L.R No. East Bukusu/North Nalondo/1658. The plaintiffs, through Mrs Wekhomba and Miss Arunga, told the court that a title deed had been issued to them on 13/9/2018 pursuant to a judgment initially delivered on 21/12/2001, set aside on 6/5/2002, reinstated on 29/3/2006, and later set aside again by a ruling dated 6/11/2019 ordering a hearing de novo. They contended that the title deed issued to them was never revoked and, being unchallenged by any counterclaim, was indefeasible under Section 26 of the Land Registration Act, so they had no genuine interest in continuing. They relied on Salat v IEBC and Beijing Industrial Designing & Researching Institute v Lagoon Development Ltd for the right to withdraw. The interested party opposed, citing John Ochanda v Telkom and Order 25 Rule 1, contending that written consent and a formal application were required since the suit had been set down for hearing severally. The defendants opposed, arguing that the 2019 ruling had cancelled the title deed and that the plaintiffs were attempting an afterthought rethink of that ruling. The court held that while a party has a legal right to withdraw a suit, it must be through the prescribed format; Order 25 contemplates a written notice served on all parties. The court declined the oral withdrawal, declined to make conclusive findings on the title question absent formal applications, and directed the plaintiffs to file and serve a formal notice of withdrawal within 14 days, failing which the suit would stand dismissed for non-prosecution after 30 days. No costs order was made.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiffs may withdraw the suit by an oral application without filing a formal notice of withdrawal under Order 25 of the Civil Procedure Rules
  2. 2.Whether the right to withdraw a suit is absolute or subject to the court's discretion where it may abuse the process of the court
  3. 3.Whether the court should make conclusive findings on the validity of the title deed issued to the plaintiffs in the absence of a formal application or counterclaim

Key legal issues

#
01

Whether withdrawal of a suit may be effected orally without a formal notice

Holding

Order 25 of the Civil Procedure Rules contemplates a written notice served on all parties; although the Order does not bar an oral request, the plaintiffs here failed to comply with the prescribed format and the court declined the oral withdrawal

Reasoning

Order 25 Rule 1 provides for discontinuance by notice in writing served on all parties before setting down for hearing; Rule 2 preserves the court's discretion. The court held that while the Order does not expressly bar an oral request, withdrawal must be through the prescribed format, and where rights have accrued to a defendant or the process might be abused, court sanction is required. The plaintiffs having made only an oral application, the court declined it absent a formal notice.

p. 4
02

Whether the court should make findings on the validity of the title deed issued to the plaintiffs

Holding

The court declined to make conclusive findings on whether the title deed issued to the plaintiffs survives the ruling setting aside the initial judgment, absent a formal application or notice

Reasoning

The court noted that no party had appealed or sought review of the ruling setting aside the initial judgment from which the plaintiffs obtained a title deed, and no formal application challenged the title. Without a formal notice of withdrawal and objection to it, the court considered its jurisdiction on discontinuance limited and declined to make conclusive findings on the competing title claims.

p. 4

Legal principles established

#
  • A plaintiff may withdraw a suit under Order 25 Rule 1 of the Civil Procedure Rules through the prescribed format, and where a defendant has acquired a right or is protected by an order, the plaintiff must seek the sanction and endorsement of the court, which has discretion to allow or reject leave on terms
  • The right to discontinue or withdraw a suit may not be used to abuse the process of the court or defeat the ends of justice

Court orders

#
  1. 1.The invitation to allow withdrawal of the suit without a formal application or notice is declined
  2. 2.The plaintiffs, if they wish to exercise their right under Order 25 of the Civil Procedure Rules, are directed to file and serve upon all the parties a formal notice of withdrawal within 14 days
  3. 3.Failure to file such notice, the suit shall be dismissed for non-prosecution after 30 days from the date of the ruling

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; matter before the Environment and Land Court in its original jurisdiction, disposing of an application under Order 25 of the Civil Procedure Rules

Relief refused

#

Oral application by plaintiffs to withdraw/discontinue the suit without formal notice

The plaintiffs failed to comply with Order 25 of the Civil Procedure Rules by not filing a formal notice of withdrawal served on all parties; the court cannot make conclusive findings on the issues without such a notice

p. 4

Costs

No order as to costs was made in the ruling

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is trite law that a party has a legal right to withdraw a suit through the prescribed format.
p. 3right of withdrawal under Order 25
A court may, in either case, not allow a plaintifi or any other party to use the right to discontinue or withdraw the suit so as to abuse the process of the court or to defeat the ends of justice.
p. 4limits on the right to withdraw
The plaintifis, if they wish to exercise their right under Order 25 of the Civil Procedure Rules, are directed to file and serve upon all the parties a formal notice to that efiect within 14 days or otherwise; the suit shall be dismissed for non-prosecution after 30 days from the date hereof.
p. 4final orders/disposition

Issues in the judgment

#
minor

The judgment contains OCR-style errors in the word 'plaintiff' throughout (rendered 'plaintifi'), affecting quotability of verbatim passages

material

The names of the plaintiffs, defendants and interested party, and the case file number, are not stated in the excerpt of the judgment provided

minor

The judgment describes a judgment delivered on 21/12/2001 while the matter was heard in 2025, and a title deed issued on 13/9/2018 following a judgment reinstated on 29/3/2006 - the internal chronology spans over two decades and is not fully explained within the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Makitoni & 2 others v Mukhwana (Suing as the administrator of the Estate of Teresina Musebe) & 3 others; Masinde (Suing as the administrator of the Estate of Michael Watamba) (Interested Party) (Enviromental and Land Originating Summons 109 of 2000) [2025] KEELC 1332 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1332/eng@2025-03-19

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