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ELCOtherELCL Appeal Case No. E099 of 2025

Kirera v M’Mwongo & 4 others (Environment and Land Appeal E099 of 2025) [2026] KEELC 3734 (KLR)

Environment and Land Court
9 June 2026
BEB M Eboso
422 words in judgment
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The bottom line

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If you withdraw a court application in Kenya, expect to pay the other side's costs unless you can justify otherwise.

What this practically means

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Executive summary

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This ex tempore ruling of the Environment and Land Court at Meru, delivered by B M Eboso J on 9 June 2026, deals with the withdrawal of an interlocutory application in ELCL Appeal Case No. E099 of 2025. The appellant had initially filed a notice of motion dated 23 February 2026 seeking stay of execution and an interlocutory injunction, on which the court gave disposal directions. The appellant then filed a second application dated 18 March 2026 seeking to set aside those directions and an interim injunction pending hearing of the first application. Oguttu Mboya J granted a conditional status quo order and listed the matter for hearing. When both applications were heard on 27 April 2026, counsel for the appellant pressed both applications despite the court's observations that there was nothing substantive to review in mere disposal directions and that the interim injunction prayer stood spent. At the delivery of the ruling, the appellant orally sought to withdraw the application dated 18 March 2026, proposing that its costs abide the outcome of the application dated 23 February 2026. The respondents conceded the withdrawal but sought costs because they had responded and filed submissions. The court allowed the withdrawal, held that costs follow the event with no proper grounds for departure, rejected the appellant's proposal, and ordered the appellant to bear the costs of the withdrawn application.

Questions the Court framed

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

  1. 1.Whether the appellant's oral application to withdraw the application dated 18/3/2026 should be allowed
  2. 2.Who should bear the costs of the withdrawn application dated 18/3/2026

Key legal issues

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Withdrawal of an application and the incidence of costs

Holding

A party may withdraw an application without objection, but must bear the costs absent justified grounds to depart from the general rule that costs follow the event

Reasoning

The court noted the respondents had filed and served submissions in response to the application dated 18/3/2026. The general principle is that costs follow the event; the appellant showed no proper grounds warranting departure, and did not justify having the costs of the withdrawn application abide the outcome of the pending application dated 23/2/2026. Withdrawal was therefore allowed with costs to the respondents.

p. 3

Legal principles established

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  • Costs follow the event, and no departure from that principle will be made without proper grounds

Court orders

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  1. 1.The application dated 18/3/2026 is marked 'withdrawn'
  2. 2.The appellant shall bear costs of the application dated 18/3/2026

The bench

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

BE
majority

Wrote the judgment

Jurisdiction invoked
First-instance/appellate jurisdiction of the Environment and Land Court over ELCL Appeal Case No. E099 of 2025 (no specific constitutional or statutory provision cited)

Relief refused

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Appellant's proposal that costs of the withdrawn application dated 18/3/2026 abide the outcome of the application dated 23/2/2026

No justification offered; costs follow the event and no grounds for departure were shown

p. 3

Costs

The appellant shall bear costs of the application dated 18/3/2026

Quotable passages

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

On costs, the general principle is that costs follow the event.
p. 3costs
Consequently, the application dated 18/3/2026 is marked “withdrawn”. The appellant shall bear costs of the application
p. 3final orders

Issues in the judgment

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minor

The appellant's oral withdrawal application is determined ex tempore but the proceeding is styled an appeal, while the applications dealt with are motion applications with no appeal record described; the underlying decision, if any, is not identified

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, "Kirera v M’Mwongo & 4 others (Environment and Land Appeal E099 of 2025) [2026] KEELC 3734 (KLR)", Case Analysis (2026). ELCL Appeal Case No. E099 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3734/eng@2026-06-09

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