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ELCOtherNot stated in judgment (Originating Summons dated 23rd January 2024)· [2025] KEELC 3610 (KLR)

Ayange v Matunda (Land Case E001 of 2024) [2025] KEELC 3610 (KLR)

Environment and Land Court
6 May 2025
GOG M A Ongondo
354 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 plaintiff, through counsel Mr Korir, applied for leave to withdraw an adverse possession suit instituted by originating summons dated 23rd January 2024. The plaintiff sought a declaration that the defendant's right to recover land parcel Nandi/Chepkumia BLK 1/64 (Kapkatoi) was barred under the Limitation of Actions Act (Cap 22), and that the defendant's title to a portion in the plaintiff's occupation was extinguished, the plaintiff having occupied the land openly, peacefully and continuously for over 23 years. The defendant, through counsel Ms Choge, had opposed the suit by a replying affidavit sworn 5th March 2024, terming it res judicata and seeking dismissal with costs. At the hearing of the withdrawal application, the defendant did not oppose withdrawal but requested half costs. The court, presided over by G M A Ongondo J, held that a plaintiff has the right to withdraw a suit and the court has discretion to allow it, applying Beijing Industrial Designing & Researching Institute v Lagoon Development Ltd [2015] eKLR, and noting that withdrawal of a suit is itself its end, per Priscilla Nyambura Njue v Geovhem Middle East Ltd [2021] eKLR. Finding the application merited, the court marked the suit as withdrawn with half costs to the defendant, guided by the proviso to section 27(1) of the Civil Procedure Act. The merits of the adverse possession claim and the res judicata objection were never determined.

Key legal issues

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01

Whether leave to withdraw the suit should be granted

Holding

Withdrawal was allowed as unopposed and the plaintiff has the right to withdraw

Reasoning

The court relied on Beijing Industrial Designing & Researching Institute v Lagoon Development Ltd for the principle that a plaintiff may withdraw a suit with the court's discretion. The defendant did not oppose the withdrawal but requested half costs. Since the suit had not been heard, the court found the application for withdrawal merited.

p. 2
02

What costs order follows withdrawal

Holding

Half costs awarded to the defendant

Reasoning

The defendant's counsel asked for half costs despite not opposing withdrawal. The court, guided by the proviso to section 27(1) of the Civil Procedure Act, marked the suit withdrawn with half costs to the defendant rather than full costs.

p. 2

Legal principles established

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  • A plaintiff has the right to withdraw a suit and the court has discretion to allow it
  • On withdrawal, costs may be apportioned under the proviso to section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.The suit is marked as withdrawn
  2. 2.Half costs of the suit awarded to the defendant
Jurisdiction invoked
Inherent discretion under section 27(1) of the Civil Procedure Act (Chapter 21, Laws of Kenya) on withdrawal of suit

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, "Ayange v Matunda (Land Case E001 of 2024) [2025] KEELC 3610 (KLR)", Case Analysis (2025). Not stated in judgment (Originating Summons dated 23rd January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3610/eng@2025-05-06

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