Mwachidyogo & another ((Suing as the legal representatives of the Estate of Bakari Omar Mwachidyogo - Deceased) v Denvi Fuel Services Limited & 4 others (Civil Suit E010 of 2024) [2026] KEELC 2799 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a plaintiff can freely drop a defendant before trial starts, and courts will usually allow pleadings to be amended if no one is unfairly prejudiced.
What this practically means
#Executive summary
#Key legal issues
#Legal parameters governing withdrawal/discontinuance of a suit and amendment of pleadings
Withdrawal is governed by Order 25 of the Civil Procedure Rules, 2010: before setting down for hearing a plaintiff may withdraw by notice without leave; after setting down, by consent of all parties or with leave of court on just terms. Amendment is governed by Order 8 Rule 3, with the court having discretion to allow amendments at any stage to determine the real question in controversy.
The court set out the three scenarios under Order 25(1) and (2): withdrawal without leave before setting down, by written consent signed by all parties, or with leave of court on terms as to costs. On amendment, it relied on Order 8 Rule 3 and 5 and principles from Halsbury's Laws of England and Coffee Board of Kenya v Thika Coffee Mills, emphasizing that amendments facilitate determination of the real controversy provided the applicant acts in good faith and no uncompensable prejudice results.
Whether the Notice of Motion dated 15th October 2025 for withdrawal and amendment has merit
The application is meritorious: the withdrawal of the suit against the 4th Defendant is proper and allowed, and leave to amend the Plaint is granted since the suit has not been set down for hearing and no prejudice would be suffered by the defendants.
The court noted the suit had not commenced or been set down for hearing, so Order 25(1) and Order 8(3) apply directly. Although the 4th Defendant was central to the alleged fraud, the plaintiff holds an absolute right of withdrawal before setting down, and defendants retain remedies: amending their defences to meet the new facts, which the plaintiffs must prove, and instituting third-party proceedings against the 4th Defendant under Order 1 Rule 15.
Who bears the costs of the application
Costs are to be in the cause.
Applying the proviso to Section 27(1) of the Civil Procedure Act, costs follow the event unless the court orders otherwise for good reason. Considering the surrounding circumstances, the court found it fair, reasonable and proper for costs to be in the cause rather than awarded to any party outright.
Legal principles established
#- A plaintiff who has not yet set down a suit for hearing has an absolute right to withdraw a suit against any defendant by written notice served on all parties, without leave of court
- Leave to amend pleadings will be granted where no prejudice is suffered by the opposing parties, since defendants retain the liberty to amend their defences
Court orders
#- 1.The Notice of Motion application dated 15th October 2025 by the Plaintiff/Applicant is found to be meritorious and is allowed as prayed
- 2.The Plaintiffs are granted leave to amend their Plaint and serve it upon the Defendants within 14 days from the date of the ruling
- 3.The Defendants are granted corresponding 14 days leave from the date of service to file an Amended Defence if need be
- 4.Upon service, the Plaintiff is granted 7 days leave to file and serve any additional documents emanating from the amended Defence
- 5.Mention on 21st July 2026 to ascertain full compliance and conduct a Pre-Trial Conference in accordance with Order 11 of the Civil Procedure Rules, 2010; hearing of the matter on 9th November 2026 preferably through physical means
- 6.Costs of the application to be in the cause
- Jurisdiction invoked
- Order 8 Rule 3 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwachidyogo & another ((Suing as the legal representatives of the Estate of Bakari Omar Mwachidyogo - Deceased) v Denvi Fuel Services Limited & 4 others (Civil Suit E010 of 2024) [2026] KEELC 2799 (KLR)", Case Analysis (2026). ELC Case at Kwale (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2799/eng@2026-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.