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ELCPartially AllowedHoma Bay ELC Petition No. 1 of 2023· [2026] KEELC 4746 (KLR)

Moronge v County Government of Homa Bay & 3 others (Environment and Land Petition 1 of 2023) [2026] KEELC 4746 (KLR)

Environment and Land Court
24 July 2026
1,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can freely withdraw your case before hearing, no permission needed to sue again, and public interest litigants often escape costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (J.W Wanyonyi, J) deals with an application by the petitioner's counsel, Mr. Osoro, for leave to withdraw Homa Bay ELC Petition No. 1 of 2023 under Order 25 Rule 1 of the Civil Procedure Rules and for leave to file a fresh petition. The withdrawal was prompted by jurisdictional concerns following the striking out of a similar petition (E002 of 2025) for want of jurisdiction. Counsel for the first respondent (the County Government) raised no objection to the withdrawal but argued that Order 25 rule 1 makes no provision for leave to file a fresh suit, and sought costs. The Attorney General, though served, did not appear. The court framed three issues: propriety of the withdrawal, whether a party can file a fresh suit on withdrawal, and costs. Relying on Order 25 Rules 1 and 2, the Salat v IEBC and Morgan Air Cargo authorities, the court held that the right to withdraw is absolute and allowed the withdrawal. Leave to file a fresh petition was declined, since that is a matter within the applicant's own province. On costs, although section 27 of the Civil Procedure Act provides that costs follow the event, the court departed from that rule, reasoning that the matter bore public interest characteristics and that awarding costs would deter future litigants and run contrary to Articles 48 and 159(2)(c); it also noted that mistake of counsel should not be visited on an innocent litigant. The petition was deemed withdrawn with each party bearing its own costs.

Key legal issues

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01

Whether the petitioner's withdrawal of the petition is proper under Order 25 Rule 1

Holding

The withdrawal is proper; the right to withdraw is absolute and unfettered, and the notice of withdrawal dated 22nd July 2026 is effective.

Reasoning

Order 25 Rule 1 allows a plaintiff to wholly discontinue a suit by notice in writing served on all parties at any time before setting down for hearing. The petitioner filed and served such a notice. Following Salat v IEBC and Morgan Air Cargo, the right to withdraw cannot be fettered; the court's only role is to make orders as to costs where appropriate. The first respondent raised no objection.

p. 4
02

Whether leave to file a fresh petition should be granted upon withdrawal

Holding

Leave to file a fresh petition is declined; filing a fresh suit is within the province of the applicant and Order 25 rule 1 does not provide for such leave.

Reasoning

The first respondent correctly observed that Order 25 rule 1 does not provide for leave to file a new suit. The court reasoned that once withdrawn the suit ceases to exist, and any right to re-litigate is a matter for the petitioner to exercise within the ordinary rules; no leave is required or granted.

p. 4
03

Whether the withdrawing petitioner should pay costs

Holding

No; each party to bear its own costs, departing from the general rule that costs follow the event because the matter bears public interest characteristics.

Reasoning

Although section 27 of the Civil Procedure Act makes costs follow the event, the court has absolute discretion to depart from that rule for good reason. The dispute involves institutional oversight and public concern; awarding costs could deter future litigants and run contrary to Articles 48 and 159(2)(c). Counsel acted promptly to own up, and mistake of counsel should not be visited on the litigant.

p. 6

Legal principles established

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  • A party wields an absolute, unfettered right to withdraw a suit under Order 25 Rule 1; the court can only make an order for costs where appropriate.
  • Where a suit has been set down for hearing, the court may grant leave to discontinue upon such terms as to costs and otherwise as are just.
  • In public interest litigation, costs should be awarded only in rare cases; a departure from the rule that costs follow the event is warranted to avoid stifling constitutional jurisprudence.
  • Mistake of counsel ought not be visited upon an innocent litigant.

Court orders

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  1. 1.The application to withdraw the Petition in terms of the notice of withdrawal dated 22nd July 2026 is allowed and the Petition is deemed as withdrawn.
  2. 2.Leave to file a fresh petition is declined as filing of the same is within the province of the Applicant.
  3. 3.Each party to bear its own costs.
Jurisdiction invoked
Inherent jurisdiction to allow withdrawal under Order 25 Rules 1 and 2 of the Civil Procedure Rules, 2010

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, "Moronge v County Government of Homa Bay & 3 others (Environment and Land Petition 1 of 2023) [2026] KEELC 4746 (KLR)", Case Analysis (2026). Homa Bay ELC Petition No. 1 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4746/eng@2026-07-24

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