Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided

Kioko v Kioko & 2 others (Environment and Land Case Civil Suit 150 of 2010) [2026] KEELC 3292 (KLR)

Environment and Land Court
2 June 2026
1,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Machakos ruled that a suit withdrawn in court is gone for good and cannot be reinstated.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Machakos (A. Y. Koross J) on a notice of motion dated 12 August 2025 in which the plaintiff sought setting aside of the orders of 19 October 2023 withdrawing his suit, reinstatement of the suit for hearing, and costs in the cause. The plaintiff asserted he only recently learned that his previous advocate had withdrawn the 13-year-old consolidated suit without his instruction or knowledge, with costs awarded to the defendants, who were now pursuing taxation of their bills of costs. The 2nd and 3rd defendants opposed, maintaining the withdrawal was proper under Order 25 Rules 1 and 2 of the Civil Procedure Rules, that a withdrawn suit cannot be reinstated, that the application was filed inordinately late solely to delay execution, and that any grievance against previous advocates should go to the Advocates' Complaints Commission. Framing a single issue - whether a withdrawn suit can be reinstated - the court held that the plaintiff's previous counsel had implied general authority to withdraw and there was no evidence of impropriety. Relying on Priscilla Nyambura Njue, Salat v IEBC and Charles Kiptarbei Birech, the court found Order 25 is silent on reinstatement; once withdrawal is formalised as a court order it ceases to have effect, and revival is possible only by filing a subsequent suit upon payment of the costs of the withdrawn suit. The motion was dismissed with costs to the 2nd and 3rd defendants.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.whether a withdrawn suit can be reinstated

Key legal issues

#
01

Whether a withdrawn suit can be reinstated

Holding

The notice of motion was not merited; the suit, having been properly withdrawn on 19 October 2023 under Order 25 Rules 1 and 2, cannot be reinstated, the Rules being silent on reinstatement and the withdrawal having been formalised as a court order.

Reasoning

The court found that the previous counsel had implied general authority to withdraw the suit and there was no evidence of impropriety. Order 25 of the Civil Procedure Rules provides no mechanism for revoking a withdrawal once adopted as a court order; revival is only possible through a subsequent suit upon payment of costs. The court associated itself with Priscilla Nyambura Njue and Charles Kiptarbei Birech, and with the Supreme Court's decision in Salat v IEBC affirming the absolute right of withdrawal.

p. 4
02

Whether the withdrawal of the suit was proper despite the plaintiff's claim that it was done without his instruction or knowledge

Holding

The withdrawal was proper, as the plaintiff was represented by previous counsel who had an implied general authority to withdraw the suit and there was no evidence of impropriety.

Reasoning

The record showed the matter had been pending for 13 years before the plaintiff's previous law firm filed a notice of withdrawal dated 15 September 2023. On 19 October 2023 previous counsel Mr. Gitonga informed the court of the intention to withdraw; defence counsel did not object save for costs. Any grievance against previous advocates lies in a complaint to the Advocates' Complaints Commission, as the 2nd defendant argued, and the application was filed inordinately late.

p. 3

Legal principles established

#
  • A party has an absolute right to withdraw a suit before judgment, and a court cannot bar withdrawal; it may only make an order as to costs
  • A suit that has been withdrawn and the withdrawal adopted as a court order cannot be reinstated; Order 25 does not provide for revocation of a withdrawal
  • Once a suit is discontinued or withdrawn it ceases to exist and cannot be revived by any means, including a consent; only a fresh subsequent suit is available

Court orders

#
  1. 1.The notice of motion dated 12 August 2025 is dismissed
  2. 2.Costs of the application awarded to the 2nd and 3rd defendants

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules, and Section 19 of the Environment and Land Court Act 2011

Relief refused

#

Setting aside of the orders made on 19 October 2023 withdrawing the plaintiff's suit

Order 25 of the Civil Procedure Rules is silent on reinstatement; once withdrawal is formalised as a court order it ceases to have effect and cannot be revoked

p. 3

Reinstatement of the plaintiff's suit for hearing

A withdrawn suit ceases to exist and can only be revived through the filing of a subsequent suit upon payment of costs

p. 3

Costs

Costs of the notice of motion dated 12 August 2025 awarded to the 2nd and 3rd defendants, as they participated in these proceedings.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It finds that the notice of motion dated 12 August 2025 is not merited and hereby dismisses it, with costs to the 2nd and 3rd defendants as they participated in these proceedings.
p. 4Final orders - dismissal of the reinstatement application
the legal framework outlined in Order 25 of the Civil Procedure Rules is silent on the procedures for reinstating a suit after the plaintifi has filed a notice of withdrawal that has been adopted as an order of the court.
p. 3Absence of statutory power to reinstate a withdrawn suit
the action can only be revived through the filing of a subsequent suit upon payment of costs associated with the previously withdrawn case.
p. 3Only avenue after withdrawal
A party’s right to withdraw a matter before the court cannot be taken way. A court cannot bar a party from withdrawing his matter.
p. 3Absolute right of withdrawal (Salat v IEBC)
once a suit is withdrawn there is no party that exists in relation to that suit.
p. 3Effect of withdrawal - suit ceases to exist (Birech)

Issues in the judgment

#
minor

The judgment uses the plural 'we' throughout despite recording a single judge in the coram

minor

The pleading roles are inconsistent - the movant is called 'plaintifi' but opposed by 'the 2nd and 3rd defendants', while prayers refer to 'prayer 2' among only four prayers

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kioko v Kioko & 2 others (Environment and Land Case Civil Suit 150 of 2010) [2026] KEELC 3292 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3292/eng@2026-06-02

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