Njoroge (Suing as the Legal Representative of John Joel Maina Thuo) v Kariuki & 23 others (Environment and Land Case 25 of 2022) [2026] KEELC 4948 (KLR)
The bottom line
#An Eldoret court paused a land case until the plaintiff pays KShs 820,000 in costs from a withdrawn earlier suit over the same property.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 25 Rule 4 applies to a subsequent suit filed by a plaintiff in a different capacity (administrator of an estate rather than attorney)
Yes - the stay may issue despite the technical difference in capacity where the power of attorney and grant ad litem show the same person acting as legal representative of the same interest
The court adopted the Mombasa decision in Davis Mwatela Dzuya, holding that Order 25 Rule 4 targets plaintiffs who withdraw suits to avoid costs and re-litigate. The power of attorney and grant ad litem proved Joseph Waweru Njoroge acted as legal representative of the late Joel Thuo Maina in both suits; the subject matter was undisputedly the same. Capacity was therefore a technical distinction.
Whether the costs of the dismissed miscellaneous application could ground the stay
No - Order 25 Rule 4 applies only to discontinued suits; the dismissed miscellaneous suit's costs must be recovered by execution
Order 25 Rule 2 contemplates voluntary discontinuance by a plaintiff. The miscellaneous application was prosecuted and determined on merit and dismissed - a substantive judicial act, not a discontinuance. Since a dismissed suit does not suggest the plaintiff was avoiding costs, Rule 4 is inapplicable; the Defendants may execute the certificate of costs under Section 38 CPA and Order 22.
Whether the plaintiff's arguments on waiver, access to justice and differing defendants defeated the stay
No - the stay issued in respect of the CM ELC E008 of 2020 costs; the plaintiff did not dispute those costs, and the same subject matter and parties were involved
The court found the notice of withdrawal of 14th March 2022 established the discontinued suit; costs of KShs. 820,000/- were certified on 9th October 2024 and undisputed. The 13 defendants in that suit are among the defendants here, the land is the same, and arguments that Order 25 Rule 4 is discretionary or waived did not displace the express terms of the rule.
Legal principles established
#- Where a plaintiff withdraws an action and commences a second action on the same matter, the court may stay the second action until costs of the first action are paid, and the stay may be granted despite a technical difference in the capacity in which the subsequent action is brought
- The dismissal of a suit after being heard on merit is not a discontinuance and cannot ground a stay under Order 25 Rule 4
- Unpaid costs of a dismissed suit must be recovered through execution mechanisms, not through a stay application
Court orders
#- 1.The proceedings herein are stayed pending payments of costs by Plaintiff/Respondent in Chief Magistrate's Court at Eldoret ELC Case No. E008 of 2020; Joseph Waweru Njoroge (Suing as the Attorney of John Joel Maina Thuo) vs Lucy Wairimu Kariuki & 12 others
- 2.Costs of this application are awarded to the 1st to 22nd Defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; application anchored on Order 25 Rule 4 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge (Suing as the Legal Representative of John Joel Maina Thuo) v Kariuki & 23 others (Environment and Land Case 25 of 2022) [2026] KEELC 4948 (KLR)", Case Analysis (2026). Notice of Motion dated 19th January 2026 (1st - 22nd Defendants' application) in the principal suit, Environment and Land Court at Eldoret. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4948/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.