Tsuma & another v Said (Sued on his own behalf and on behalf of the Estate of Zeyana Binti Azzan) & another (Enviromental and Land Originating Summons 23 of 2021) [2025] KEELC 7099 (KLR)
The bottom line
#A Kenyan court confirmed that withdrawing a land lawsuit doesn't end a counterclaim, and protected a registered owner's plot from demolition pending trial.
What this practically means
#Executive summary
#Key legal issues
#Validity of the notice of withdrawal of suit
The withdrawal was valid and effective upon filing and service because the suit had not been set down for hearing, but it did not extinguish the counterclaim which proceeds independently.
Under Order 25 Rule 1 of the Civil Procedure Rules a plaintiff may withdraw without leave if the suit has not been set down for hearing; the record showed it had not been fixed for hearing. However, a counterclaim already filed survives the withdrawal and continues independently, so the court retains jurisdiction over it and all interlocutory applications related to it, including the present application.
Whether the 1st Defendant established a prima facie case
The 1st Defendant, as registered owner, demonstrated a prima facie case, supported by photographic and police evidence of recent destruction and interference with boundary structures.
The 1st Defendant is a registered owner jointly with others, and the Plaintiffs' adverse possession claim challenging his title had been withdrawn, undermining their legal basis to remain on the land. While caution was warranted since the counterclaim is undetermined, the evidence of destruction justified restraint pending full hearing.
Irreparable harm and balance of convenience
Land being a finite and unique resource, interference with possession cannot always be adequately compensated by damages, and the balance of convenience favoured the 1st Defendant.
If unrestrained, the alleged destruction could escalate into permanent damage or a change in the status of the property. Conversely, the Plaintiffs, whose adverse possession claim was withdrawn and who had not established title, would suffer less prejudice by being restrained from altering the status of the land.
Legal principles established
#- Withdrawal of a main suit does not extinguish a counterclaim, which proceeds independently and the court retains jurisdiction over it and related interlocutory applications.
- Adverse possession is not automatic; it must be asserted and proved through judicial proceedings.
Court orders
#- 1.Pending the hearing and determination of the counterclaim, a temporary injunction restraining the respondents, their agents, servants, employees and/or any other persons acting on their behalf from demolishing or wasting in any manner all that property known as plot number 159A Malindi
- 2.The rest of the issues to be determined at the hearing of the counterclaim, which shall be expedited
- 3.The suit to be mentioned on 12/11/2025 for issuance of a hearing date
- Jurisdiction invoked
- Sections 1, 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tsuma & another v Said (Sued on his own behalf and on behalf of the Estate of Zeyana Binti Azzan) & another (Enviromental and Land Originating Summons 23 of 2021) [2025] KEELC 7099 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 22/5/2025 within a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7099/eng@2025-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.