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ELCOtherELCLMISC. E012 OF 2026· [2026] KEELC 5708 (KLR)

John Kimely Birech v Alice Chepketer Chemiron, Nicholas Chemiron & Isaac Chemiron

Environment and Land Court of Kenya at Kapsabet
23 September 2026
GOG M A Ongondo
328 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court confirmed that a party can freely withdraw their own court application when the other side objects to nothing and suffers no prejudice.

What this practically means

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Executive summary

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This is a brief ruling of the Environment and Land Court at Kapsabet in Miscellaneous Application E012 of 2026. The 1st respondent, through Aminga, Opiyo Masese and Company Advocates, had filed a Notice of Motion dated 14th July 2026 seeking the principal order that the plaintiff's amended plaint dated 21st May 2026, filed without leave of the court, be struck out. When the matter came up, counsel for the 1st respondent sought to withdraw that application to pave the way for hearing of the plaintiff's own application dated 3rd July 2026. Counsel for the plaintiff raised no objection, making withdrawal a matter of common ground. The court, per Ongondo J, applied the principle in Robert Mutiso Lelli v Kenya Medical Training College & 2 others (2021 KESC 21 (KLR)) that a party's liberty to withdraw a matter cannot be taken away, and that a party who approaches the court must be allowed to withdraw if no prejudice is caused to the other side. Holding that no prejudice would occasion on the other parties, the court marked the application dated 14th July 2026 as withdrawn with no orders as to costs. The ruling does not determine the striking-out issue on its merits, nor the plaintiff's pending application, both of which remain for the court's future consideration.

Key legal issues

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01

Right to withdraw an application

Holding

The 1st defendant had the right to withdraw its application since no prejudice would occasion on the other parties, and both counsel were in agreement.

Reasoning

Counsel for the 1st defendant sought withdrawal of the striking-out application to pave way for hearing of the plaintiff's application dated 3rd July 2026. Counsel for the plaintiff raised no objection. Relying on Robert Mutiso Lelli v Kenya Medical Training College & 2 others, the court held that a party's liberty to withdraw a matter cannot be taken away where no prejudice is caused to the other side, and accordingly marked the application withdrawn.

p. 2

Legal principles established

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  • A party's liberty to withdraw a matter or application cannot be taken away, and the court must allow withdrawal where no prejudice is caused to the other party.

Court orders

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  1. 1.The application dated 14th July 2026 is marked as withdrawn with no orders as to costs
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to permit withdrawal of a party's own application; no specific constitutional or statutory provision invoked

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, "John Kimely Birech v Alice Chepketer Chemiron, Nicholas Chemiron & Isaac Chemiron", Case Analysis (2026). ELCLMISC. E012 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5708/eng@2026-09-23

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