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ELCOtherOriginating Summons dated 6th December 2022· [2025] KEELC 6518 (KLR)

Murgor & another v Choge (As the Administrator of the Estate of Kipchoge Arap Biego - Deceased) (Enviromental and Land Originating Summons E040 of 2022) [2025] KEELC 6518 (KLR)

Environment and Land Court
30 September 2025
GOG M A Ongondo
425 words in judgment
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The bottom line

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A Kenyan court confirmed plaintiffs can freely withdraw their land case before trial, and walked away without paying the other side's legal costs.

What this practically means

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Executive summary

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The plaintiffs, through Kipkosgei Choge and Company Advocates, filed an originating summons dated 6th December 2022 seeking a declaration extinguishing the registered proprietor's interest over land parcel Nandi/Ndubeneti/198, including any interest of the respondent as administrator of the estate of the registered proprietor, and an order vesting the whole suit land on the plaintiffs with rectification of the register accordingly. When the matter came before the Environment and Land Court at Kapsabet, counsel for the plaintiffs informed the court that the plaintiffs were unresponsive and absent, and sought leave to have the suit marked as withdrawn with no orders as to costs. The defendant had never entered appearance. Relying on the Supreme Court decision in Lelli vs Kenya Medical Training College & 2 others, Ongondo J held that a party has an inalienable liberty to withdraw a matter they have brought, and that the court should allow such withdrawal. The court found no bad faith on the part of the plaintiffs and no appearance of prejudice to the defendant. It further held, invoking the proviso to section 27(1) of the Civil Procedure Act, the Abote decision and the Jasbir Singh Rai decision, that no orders as to costs should be made given the nature and circumstances of the suit. The court marked the suit as withdrawn with no orders as to costs. The substantive adverse-possession-type claims were therefore never determined.

Key legal issues

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01

Whether a plaintiff may withdraw a suit at will

Holding

Yes; the liberty to withdraw a filed matter cannot be taken away and the court should allow a party who approached the court to withdraw

Reasoning

The court relied on the Supreme Court's Lelli decision to hold that withdrawal is a matter of party liberty. Counsel for the plaintiffs sought withdrawal, the defendant had never entered appearance, and no prejudice arose. The court therefore exercised its discretion in favour of withdrawal.

p. 2
02

Whether withdrawal should attract costs against the plaintiffs

Holding

No; no orders as to costs were made, guided by the proviso to section 27(1) of the Civil Procedure Act and precedent

Reasoning

The court found no bad faith and no appearance of prejudice to the defendant, who had not entered appearance. Invoking the proviso to section 27(1) of the Civil Procedure Act, the Abote decision and the Jasbir Singh Rai case, it declined to award costs, noting the nature and circumstances of the suit.

p. 2

Legal principles established

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  • A party has the liberty to withdraw a matter they have filed, and this liberty cannot be taken away
  • Withdrawal may be allowed with no orders as to costs where no prejudice or bad faith is demonstrated, having regard to the proviso to section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.The suit generated by the originating summons dated 6th December 2022 is marked as withdrawn
  2. 2.No orders as to costs
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; Civil Procedure Act Chapter 21 Laws of Kenya (section 27(1) proviso on costs)

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, "Murgor & another v Choge (As the Administrator of the Estate of Kipchoge Arap Biego - Deceased) (Enviromental and Land Originating Summons E040 of 2022) [2025] KEELC 6518 (KLR)", Case Analysis (2025). Originating Summons dated 6th December 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6518/eng@2025-09-30

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