Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Misc. Application (Notice of Motion dated 29/01/2025)· [2025] KEELC 5295 (KLR)

Bunyila & 3 others v Anyonga & 4 others (Environment and Land Miscellaneous Application E003 of 2024) [2025] KEELC 5295 (KLR)

Environment and Land Court
10 July 2025
ECE. C. Cherono
1,781 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Applicants moved the Environment and Land Court at Bungoma by Notice of Motion dated 29 January 2025 seeking withdrawal and transfer of Kimilili SPM's Court ELC Case No. E013 of 2020 to be heard and consolidated with Bungoma ELC O.S Nos. E001, E002, E003 and E016 of 2024, in which they claim adverse possession. They argued that the subordinate court lacks jurisdiction over adverse possession claims and that consolidation would serve the interest of justice. The 3rd, 4th and 5th Respondents opposed, pointing out that a similar application (ELC Misc No. E006/2024) and a reinstatement application had both already been dismissed for non-attendance, and urged that the instant application was an abuse of process aimed at delaying the Kimilili suit. The court framed a single issue: whether the orders sought ought to be granted. It held that withdrawal of a suit is the prerogative of the plaintiff alone under Order 25 Rule 1 of the Civil Procedure Rules, so the Applicants, as defendants in the lower court, lacked standing. On transfer, the burden lay on the Applicants to make out a strong case under Section 18(1)(b) of the Civil Procedure Act. The court found the parties in the various suits differ significantly and that the Applicants' defence in the lower court sought boundary realignment, with no hint of adverse possession; the belated filing of numerous originating summons amounted to forum shopping calculated to delay the 2020 suit. The application was dismissed with costs to the Respondents.

Key legal issues

#
01

Whether defendants can seek withdrawal of a suit instituted against them

Holding

They cannot; withdrawal is the prerogative of the plaintiff alone.

Reasoning

Order 25 Rule 1 of the Civil Procedure Rules, 2010 allows only the plaintiff to withdraw a suit by notice in writing before the hearing begins. The Court of Appeal in Kenya Power & Lighting Co. Ltd v Benzene Holdings Limited confirms that a defendant has no such right and may only seek dismissal under appropriate provisions. The Applicants, being defendants in the lower court, therefore lacked legal standing to seek withdrawal of the suit.

p. 3
02

Whether the Kimilili suit should be transferred and consolidated with the Bungoma originating summons

Holding

No. The applicants failed to make out a strong case for transfer; the parties differ across the suits and the defence in the lower court raised no adverse-possession claim, suggesting the later suits were ill-intentioned forum shopping to delay the 2020 suit.

Reasoning

Although Section 18(1)(b) of the Civil Procedure Act empowers the High Court to transfer suits at any stage, the applicant must make out a strong case. Here the parties in the various cases vary significantly, and the Applicants' defence in the lower court sought a survey map revision and boundary realignment with no hint of adverse possession. The belated invocation of adverse possession years after the lower court suit crystallized, coupled with repeated dismissed applications, amounted to forum shopping calculated to delay the dispute's determination.

p. 4

Legal principles established

#
  • The power to withdraw a suit rests solely with the plaintiff who instituted it; a defendant cannot seek withdrawal and may only move for dismissal under appropriate provisions.
  • Under Section 18(1)(b) of the Civil Procedure Act the burden lies on the applicant for transfer of a suit to make out a strong case for the transfer.

Court orders

#
  1. 1.The application dated 29th January, 2025 is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSection 1A & 1B
  • Civil Procedure ActSection 18(1)(b)
  • Civil Procedure Rules, 2010Order 25 Rule 1

Cases cited (3)

  • Sugawara v Kiruti (sued in her capacity as the administratrix of the Estate of Mutarakwa Kiroti Lepaso and on her own) and 3 others (petition (application E038 OF 2024)
    (2025) KESC 9 (KLR)
  • Kenya Power & Lighting Co. Ltd v Benzene Holdings Limited t/a Wyco Paints
    [2016] eKLR
  • Bilha Ngonyo Isaac v Kembu Farm Ltd and another
    (2018) eKLR
Jurisdiction invoked
Section 18(1)(b) of the Civil Procedure Act (general power of the High Court to transfer suits)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bunyila & 3 others v Anyonga & 4 others (Environment and Land Miscellaneous Application E003 of 2024) [2025] KEELC 5295 (KLR)", Case Analysis (2025). ELC Misc. Application (Notice of Motion dated 29/01/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5295/eng@2025-07-10

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