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ELCOtherE & L No. 12 of 2021· [2025] KEELC 3908 (KLR)
Kimutai & another v Tarus; Saina & 2 others (Applicant) (As a Legal Representatives of the Estate of Kipsaina arap Tarus alias Kipsaina Tarus - Deceased) (Environment & Land Case 12 of 2021) [2025] KEELC 3908 (KLR)
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·~1 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court confirmed that a party who explains their reasons can freely withdraw a court application before it is decided.
What this practically means
#Executive summary
#This ruling of the Environment and Land Court at Kapsabet (G M A Ongondo, J) dealt with a notice of motion dated 9th March 2021 in which the applicants, through Kipkosigei Choge and Company Advocates, sought leave to amend the defence in E & L No. 12 of 2021 by substituting a deceased defendant with the administrator of his estate, and further sought to consolidate that suit's defence with the plaints in E & L No. 57 of 2021 and No. E006 of 2022. The motion was anchored on sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution. At the hearing, Mr Sang, instructed by Mr Choge, sought leave to withdraw the application, explaining that the applicants intended to file a fresh application because there were changes in the matter. No response was filed to oppose the withdrawal. Relying on Council of Governors v Senate & another; SC Reference No. 1 of 2014 (2014) eKLR, the court held that a party's choice to withdraw a matter, having given reasons, cannot as a general rule be taken away from that party. Finding merit in the request, the court allowed the withdrawal of the application with no orders as to costs. The substantive prayers for substitution and consolidation were therefore not determined and remain open to be raised in a fresh application. The judgment also contains an internal date discrepancy, referring to the application as dated both 9th March 2021 and 9th March 2025.
Key legal issues
#01
Whether leave to withdraw an application should be granted
Holding
Leave granted where counsel gave reasons for the withdrawal
Reasoning
The court applied the principle that a party who gives reasons for withdrawing a matter before court cannot as a general rule be deprived of that choice. Counsel for the applicants stated the applicants intended to file a fresh application owing to changes in the matter. There being no response opposing the withdrawal, the court found merit in the request and allowed it with no orders as to costs.
p. 2
Legal principles established
#- A party's choice to withdraw a matter before court, having given reasons, cannot as a general rule be taken away from that party
Court orders
#- 1.Leave granted to the applicants to withdraw the notice of motion dated 9th March 2021
- 2.No orders as to costs
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya and Article 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimutai & another v Tarus; Saina & 2 others (Applicant) (As a Legal Representatives of the Estate of Kipsaina arap Tarus alias Kipsaina Tarus - Deceased) (Environment & Land Case 12 of 2021) [2025] KEELC 3908 (KLR)", Case Analysis (2025). E & L No. 12 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3908/eng@2025-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.