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ELCOtherNot stated in the judgment· [2025] KEELC 6145 (KLR)
Tuitoek v Kogo & another (Land Case (Originating Summons) E006 of 2025) [2025] KEELC 6145 (KLR)
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#What this practically means
#Executive summary
#This was a ruling of the Environment and Land Court (G M A Ongondo, Judge) on a notice of withdrawal dated 11th September 2025, filed by the applicant in a notice of motion dated 29th July 2025. The motion, filed through Lagat Joshua and Company Advocates, had sought an injunction against the respondents over the suit land known as Nandi/Nandi/Kabulonik/596. The court noted that the application had never been served on the respondents and that no response was on record. Framing the sole question as whether the notice of withdrawal was meritorious, the court applied Karurie-vs-Kamau (2025) KECA 366 (KLR) for the proposition that where there is no evidence of service the scales tilt in favour of the applicant, and M & E Consulting Engineers Limited-vs-Lake Basin Development Authority and another (2015) eKLR for the proposition that withdrawal lies within the court's discretion. The court found the notice of withdrawal merited and marked the application dated 29th July 2025 as withdrawn. On costs, the court declined to make any order, guided by Jasbir Singh Rai & 3 others-vs-Tarlochan Rai & 4 others (2014) eKLR and the proviso to section 27(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya. The judgment was dated and delivered virtually on 16th September 2025.
Key legal issues
#01
Whether the notice of withdrawal dated 11th September 2025 should be allowed
Holding
The notice of withdrawal was merited and the application dated 29th July 2025 was marked as withdrawn with no orders as to costs
Reasoning
The application had never been served on the respondents, so no response was on record. Relying on Karurie-vs-Kamau, the court held that where there is no evidence of service the scales tilt in favour of the applicant, and citing M & E Consulting Engineers, that withdrawal is within the court's discretion. The court accordingly allowed the withdrawal and made no costs order, guided by Jasbir Singh Rai and section 27(1) of the Civil Procedure Act.
p. 1
Legal principles established
#- Where there is no evidence of service of an application, the scales tilt in favour of the applicant and the matter may be deemed withdrawn
- Withdrawal of an application lies within the discretion of the court
Court orders
#- 1.The application dated 29th July 2025 is marked as withdrawn
- 2.No orders as to costs
- Jurisdiction invoked
- Inherent and discretionary jurisdiction of the court to permit withdrawal of an application, guided by section 27(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tuitoek v Kogo & another (Land Case (Originating Summons) E006 of 2025) [2025] KEELC 6145 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6145/eng@2025-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.