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ELCPartially AllowedELCA No. E014 of 2023· [2025] KEELC 7506 (KLR)

Chiko v Agunga (Appeal E014 of 2023) [2025] KEELC 7506 (KLR)

Environment and Land Court
4 November 2025
3,658 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated an appeal, ruling you cannot withdraw it with a simple notice once submissions have been ordered.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Malindi (Mwangi Njoroge, J) determined a Notice of Motion dated 9th May 2025 by the Appellant seeking to set aside orders of 30th April 2025 made when the court stood the appeal over generally following a purported Notice of Withdrawal dated 28th April 2025, and to reinstate the appeal. The Appellant, an 81-year-old man, alleged he was misrepresented into thumbprinting pre-prepared withdrawal documents. The Respondent filed a Preliminary Objection contending the appeal, having been withdrawn, no longer existed, that the court was functus officio, and that reinstatement was barred by res judicata. The court applied the Mukisa Biscuits threshold and struck out the preliminary objection because it could not be determined without perusal of the court record and extraneous documents, and was thus not a pure point of law. On the merits, the court held that in appeals an order directing parties to file submissions constitutes the de facto setting down of the appeal for hearing; the order of 25th February 2025 therefore meant Order 25 Rule 2 applied, requiring either a consent signed by all parties or leave of court for withdrawal. Neither was produced. The court found the appeal was not effectively withdrawn, allowed the application in terms of prayer (c), ordered costs of the application to abide the outcome of the appeal, and directed a mention on 27th November 2025 for issuance of a judgment date.

Key legal issues

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01

Whether the preliminary objection on functus officio, res judicata and jurisdiction was merited

Holding

Struck out - the objection could not be determined without perusal of the court record and extraneous documents, so it was not a pure point of law

Reasoning

The court applied the Mukisa Biscuits threshold that a preliminary objection must raise a pure point of law on assumed facts. Determining whether the appeal had been effectively withdrawn required the court record to establish which limb of Order 25 applied and whether its requirements were met. Since facts and documents had to be ascertained, the objection failed.

p. 5
02

Whether the appeal had been set down for hearing when the notice of withdrawal was filed

Holding

Yes - the order of 25/2/2025 directing filing of submissions constituted setting down for hearing, so Order 25 Rule 2 governed the purported withdrawal

Reasoning

The court reasoned that appeals are disposed of by written submissions without oral evidence, so an order to file submissions acts as the de facto commencement of hearing. Having been set down on 25/2/2025, the 28/4/2025 withdrawal required either a consent signed by all parties or leave of court under Order 25 Rule 2.

p. 6
03

Whether the appeal was effectively withdrawn

Holding

No - the respondent failed to produce a consent of all parties or a court order endorsing the withdrawal as required by Order 25 Rule 2

Reasoning

Once the court found Order 25 Rule 2 applicable, effective withdrawal required a filed written consent signed by all parties or leave of court. The respondent, given opportunity to respond, produced neither. The purported notice of withdrawal was therefore ineffective and the appeal stood reinstated.

p. 7
04

Order 25 Rule 2 applicability to appeals

Holding

Order 25 Rule 2 applies to appeals by extrapolation, as there is no express provision governing withdrawal of appeals

Reasoning

The court noted Order 25 Rule 2 relates to suits but found no express Civil Procedure Rules provision on withdrawal of appeals, so the rule applies by extrapolation. This allowed the court to assess the validity of the notice of withdrawal against the requirements applicable to matters already set down for hearing.

p. 6

Legal principles established

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  • In appeals, the court's order directing parties to file submissions constitutes the de facto setting down of the appeal for hearing, triggering Order 25 Rule 2 requirements for withdrawal
  • A preliminary objection that cannot be determined without reference to extraneous documents or the court record is not a pure point of law
  • Where a suit/appeal has been set down for hearing, it may only be discontinued with a written consent signed by all parties or with leave of court under Order 25 Rule 2

Court orders

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  1. 1.The Notice of Preliminary Objection dated 28th May 2025 is struck out
  2. 2.The Notice of Motion dated 9th May 2025 is allowed in terms of prayer (c) thereof - setting aside the orders of 30th April 2025 and reinstating the appeal
  3. 3.The costs of the application shall abide the outcome of the appeal
  4. 4.The appeal to be mentioned on 27/11/2025 for issuance of a judgment date

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 25 Rule 1
  • Civil Procedure Rules, 2010Order 25 Rule 2(1)-(2)
  • Civil Procedure Rules, 2010Order 51 Rule 15
  • Civil Procedure Rules, 2010Order 6 Rule 13
  • Evidence Act, Cap 80Section 106B (1), (2) and (4)
  • Oaths and Statutory Declarations Act, Cap 15not specified
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (9)

  • Josephine Mwikali Kikenye v Omar Abdalla Kombo & Another
    (2018) eKLR
  • Jack & Jill Supermarket Ltd v Viktor Maina Ngunjiri
    (2016) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors
    [1969] EA 696
  • Hermanus Philipus Steyn v Giovanni Gnecchi-Ruscone
    (2013) eKLR
  • Faustina Njeru Njoka v Kimunye Tea Factory Ltd
    (2022) eKLR
  • Safaricom PLC v Kinuthia & 2 Others
    (2025) KEHC 389 (KLR)
  • Haile Menkerios v Mureithi & Another; Wina Trading Co. Ltd (Third Party)
    (2024) KESC 13993 (KLR)
  • Shadrack Silla Muthama -v- Kebaso Wyclifie Maengwe
    [2021] eKLR
  • Priscilla Nyambura Njue -vs- Geovhem Middle East Ltd; Kenya Bureau of Standards (Interested Party)
    [2021] eKLR
Jurisdiction invoked
Original/appellate jurisdiction of the Environment and Land Court; Article 159(2)(d) of the Constitution invoked by the Applicant

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, "Chiko v Agunga (Appeal E014 of 2023) [2025] KEELC 7506 (KLR)", Case Analysis (2025). ELCA No. E014 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7506/eng@2025-11-04

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