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ELCDismissedNot stated in the judgment (suit pending before the Environment and Land Court, Eldoret)· [2025] KEELC 8544 (KLR)

Kimitei (Suing as an administrator to the Estate of the Late Nyongio Kimitei) & 11 others v Tarus & 50 others (Environment and Land Case 40 of 2019) [2025] KEELC 8544 (KLR)

Environment and Land Court
4 December 2025
3,107 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that once you withdraw your lawsuit, it is gone for good and cannot be revived, even if you claim you made a mistake.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (C. K. Yano, ELC Judge, delivered virtually on 4th December 2025) determines a Notice of Motion dated 16th May 2025 in which the plaintiffs sought to set aside, vacate or review the oral withdrawal of their land suit made before the court on 7th May 2025, and to have the suit reinstated for hearing. The withdrawal had been made by their advocate, Mr Omboto, without objection from the defendants' advocates, subject to costs, and the counter-claim was fixed for hearing on 10th November 2025. The plaintiffs, through an affidavit sworn by their advocate, contended that the withdrawal was made under a mistaken belief that no amended defence and counter-claim was on file. The defendants opposed, arguing that a withdrawn suit ceases to exist and cannot be reinstated under Order 25 of the Civil Procedure Rules, and that the supporting affidavit was defectively sworn by the advocate. The court framed three issues and held that the affidavit sworn by the advocate was proper since the withdrawal application was the advocate's own act; that a suit once withdrawn ceases to exist and no provision confers a right to revoke a withdrawal, relying on Kwale International Sugar Company v Ndutumi Auctioneers, Birech v Mbugua, Kayaya Juma v Khaunya and Priscilla Nyambura Njue; and that the withdrawal was intentional and voluntary, with no mistake, accident or misrepresentation, counsel having been present when the counter-claim hearing date was taken. The application was dismissed with costs to the defendants. The counter-claim remains pending for hearing.

Key legal issues

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01

Whether a supporting affidavit sworn by the applicant's advocate rather than the litigant renders the application fatally defective

Holding

The application was not defective; the advocate who made the oral application for withdrawal was the proper person to explain why the withdrawal should be set aside

Reasoning

The court held that the Advocates Practice Rules do not bar an advocate from swearing affidavits on formal and non-contentious matters in cases in which he acts. Since Mr Omboto personally made the oral application for withdrawal, he was best placed to depone to the circumstances surrounding it, so the objection failed.

p. 6
02

Whether a withdrawn suit can be set aside, reviewed or reinstated under Order 25 of the Civil Procedure Rules

Holding

No. A suit once withdrawn ceases to exist and cannot be reinstated, whether by the court's discretion or even by consent of the parties

Reasoning

Relying on Order 25 Rule 2 and Kwale International Sugar Company v Ndutumi Auctioneers, Charles Kiptarbei Birech v Paul Waweru Mbugua, Antony Kayaya Juma v Humphrey Ekesa Khaunya and Priscilla Nyambura Njue, the court held that the right to withdraw is absolute but carries no right of revocation. There being no mistake, accident or misrepresentation, and counsel having been present when the counter-claim was set down for hearing, the explanation of ignorance of the counter-claim did not hold.

p. 7

Legal principles established

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  • Once a suit is withdrawn, it ceases to exist and the court has no discretion to reinstate it
  • A duly instructed advocate has implied authority to compromise, settle and withdraw an action on behalf of the client
  • An advocate may swear an affidavit on formal and non-contentious matters in a case in which he acts

Court orders

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  1. 1.The notice of motion dated 16th May, 2025 is dismissed
  2. 2.Costs of the application awarded to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure RulesOrder 25 Rule 2
  • Civil Procedure RulesOrder 11
  • Advocates Practice Rules

Cases cited (22)

  • Mbogo v Shah
    (1968) EA 93
  • Patel v E.A Cargo Handling Services Ltd
  • Philip Chemwolo & Another v Augustine Kubende
    (1986) KLR 492
  • Kithoi v Kioko
    (1982) KLR 181
  • Belgo Holdings Limited v Robert Kotch Otachi & Another
    NRB High Court Civil Suit No. 454 of 2014
  • Bernard Githii on behalf of Mutathini Farmers Co. v Kiholo Farmers Co. Ltd
    HCCC No. 32 of 1994
  • Gulam Hussein Jivanji v Jivanji & Another
    (1929-30) KLR 44
  • Civicum Limited v Kirowatt Limited
    (2025) KEHC 3124 (KLR)
  • Abayomi Babatunde v Pan Atlantic Shipping & Transport Agencies Ltd & others
    SC 154/2002
  • John Ochanda v Telkom Kenya Ltd
    SC App. No. 25 of 2014
  • Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd
    (2014) eKLR
  • Francis Origo & Another v Jacob Kumali Mungala
    (2005) eKLR
  • Kurji & 4 others v Kurji & 3 others
    (2024) KECA 882 (KLR)
  • Kenya Commercial Bank Ltd v Nyantika & Another
    (2004) eKLR
  • Toney Keter & 5 others v The Hon. Attorney General & 3 others
    (2013) eKLR
  • DGM v EWG
    (2021) eKLR
  • Kwale International Sugar Company Limited v Ndutumi Auctioneers
    [2025] KEELC 649 (KLR)
  • Charles Kiptarbei Birech v Paul Waweru Mbugua & another
    (2021) eKLR
  • Antony Kayaya Juma v Humprey Ekesa Khaunya & another
    [2004] eKLR
  • Priscilla Nyambura Njue v Geovhem Middle East Ltd Kenya Bureau of Standards (Interested Party)
    2021 KEHC 13341 (KLR)
  • Allah Baksh v Niamat Ali
    1892 All WN 53 (1)
  • M & E. Consulting Engineers Limited v Lake Basin Development Authority & Another
    (2015) eKLR
Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act and review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

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, "Kimitei (Suing as an administrator to the Estate of the Late Nyongio Kimitei) & 11 others v Tarus & 50 others (Environment and Land Case 40 of 2019) [2025] KEELC 8544 (KLR)", Case Analysis (2025). Not stated in the judgment (suit pending before the Environment and Land Court, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8544/eng@2025-12-04

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