Winstone v Bolo (Enviromental and Land Originating Summons E026 of 2024) [2025] KEELC 7975 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a plaintiff to withdraw a land suit but blocked refiling on the same issue without fresh court permission.
What this practically means
#Executive summary
#Key legal issues
#Mode of withdrawal of a suit set down for hearing
Where a suit has been set down for hearing, withdrawal requires either a written consent signed by all parties or leave of the court on such terms as are just; an oral application falls under Order 25 Rule 2(2)
Order 25 Rule 1 permits withdrawal by written notice only before setting down for hearing. Once set down, Rule 2 applies: discontinuance is by written consent of all parties or by court leave on terms as to costs and any subsequent suit. The application here was oral and made at the formal proof hearing, so the court's leave was required.
Whether the court can refuse withdrawal
The court cannot bar a party from withdrawing their matter; it can only impose terms such as costs
Relying on Skyline Sacco, Salat and Beijing Industrial, the court held the right to withdraw is unfettered and cannot be taken away; the court's role is limited to imposing just conditions for withdrawal.
Effect of withdrawal of an abated suit
The suit had abated over a year earlier for failure to collect and serve summons within thirty days; the withdrawal seals it completely and refiling on the same subject matter requires the court's leave
Order 5 Rules 1, 3 and 6 require summons to issue and be collected for service within thirty days, failing which the suit abates. The suit had abated over a year prior, and the plaintiff purported to fix it for formal proof without service. To prevent abuse of court process, any fresh suit on the same subject matter requires prior leave.
Legal principles established
#- A party has an unfettered right to withdraw a suit, but where it has been set down for hearing the withdrawal requires the court's permission and may be subject to terms as to costs or refiling
- A summons not collected for service within thirty days of issue causes the suit to abate
Court orders
#- 1.The oral application for withdrawal of the entire Originating Summons is allowed
- 2.The applicant is not permitted to file another suit against the same party over the same subject matter without first seeking and obtaining the leave of the court
- 3.No order as to costs
- Jurisdiction invoked
- Order 25 Rules 1 and 2 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Winstone v Bolo (Enviromental and Land Originating Summons E026 of 2024) [2025] KEELC 7975 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7975/eng@2025-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.