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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a supporting affidavit sworn by the applicant's advocate rather than the litigant renders the application fatally defective
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
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.
Whether a withdrawn suit can be set aside, reviewed or reinstated under Order 25 of the Civil Procedure Rules
No. A suit once withdrawn ceases to exist and cannot be reinstated, whether by the court's discretion or even by consent of the parties
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.
Legal principles established
#- Once a suit is withdrawn, it ceases to exist and the court has no discretion to reinstate it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
#- 1.The notice of motion dated 16th May, 2025 is dismissed
- 2.Costs of the application awarded to the defendants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.