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ELCPartially AllowedNotice of Motion dated 19th January 2026 (1st - 22nd Defendants' application) in the principal suit, Environment and Land Court at Eldoret· [2026] KEELC 4948 (KLR)

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)

Environment and Land Court
30 July 2026
2,989 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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An Eldoret court paused a land case until the plaintiff pays KShs 820,000 in costs from a withdrawn earlier suit over the same property.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

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Executive summary

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This ruling by C. K. Yano, ELC Judge, Eldoret, determined the 1st to 22nd Defendants' Notice of Motion dated 19th January 2026 seeking a stay of the suit until the Plaintiff paid party-and-party costs of two previous suits: Eldoret CM ELC Case No. E008 of 2020 (withdrawn; costs assessed at KShs. 820,000/- on 9th October 2024) and Eldoret ELC Misc. Application No. E013 of 2021 (dismissed; costs assessed at KShs. 665,500/- on 8th April 2024). The Defendants relied on Order 25 Rule 4 of the Civil Procedure Rules, which permits a stay of a subsequent suit on the same or substantially the same cause of action where the costs of a discontinued suit are unpaid. The Plaintiff, suing as administrator of the estate of the late Joel Maina Thuo, opposed the application, arguing he had acted in a different capacity in the previous suits, that the estate would be denied access to justice under Article 48, that the rule was not mandatory and had been waived. The court applied Patrick Kigera Mathia on the five elements of Rule 4 and followed Davis Mwatela Dzuya, holding that a stay may issue despite a technical difference in the capacity in which the subsequent action is brought. However, the court held that the miscellaneous application, having been prosecuted and dismissed on merit, was not a 'discontinued' suit, so Rule 4 could not enforce those costs; the Defendants must execute that certificate of costs under Section 38 of the Civil Procedure Act and Order 22. The application succeeded only in part: proceedings in the present suit were stayed pending payment of the KShs. 820,000/- costs in the CM ELC E008 of 2020 suit, with costs of the application awarded to the 1st to 22nd Defendants.

Key legal issues

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01

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)

Holding

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

Reasoning

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.

p. 6
02

Whether the costs of the dismissed miscellaneous application could ground the stay

Holding

No - Order 25 Rule 4 applies only to discontinued suits; the dismissed miscellaneous suit's costs must be recovered by execution

Reasoning

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.

p. 5
03

Whether the plaintiff's arguments on waiver, access to justice and differing defendants defeated the stay

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Costs of this application are awarded to the 1st to 22nd Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 4
  • Civil Procedure RulesOrder 25 Rule 2
  • Civil Procedure RulesOrder 22
  • Civil Procedure ActSection 38
  • Civil Procedure ActSection 27(1)
  • Constitution of Kenya, 2010Article 48

Cases cited (4)

  • Judith Cherono Mosonik vs Dickson Kipkemboi & Another
    (2019) eKLR
  • Kiroket Ole Puma vs Umash Ole Manwaki & 2 Others
    (2018) eKLR
  • Patrick Kigera Mathia & Another vs Dr. Peter Mungai Ngugi & 2 others
    (2011) eKLR
  • Davis Mwatela Dzuya & another Vs. Salim Anjarwalla (the Legal representative of the Estate of Hussein Karimbhai Anjarwalla)
    (2021) KEELC 3861 (KLR)
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

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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, "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.