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ELCOtherELCLMISC. NO. E012 OF 2026· [2026] KEELC 5712 (KLR)
John Kimely Birech v Alice Chepketer Chemiron & 2 others
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·~2 min to read original · ~4 min briefThe bottom line
#The Environment and Land Court at Kapsabet confirmed that anyone who files a court application can freely withdraw it before it is served, without paying costs.
What this practically means
#Executive summary
#The applicant, John Kimely Birech, through MB LAW Advocates LLP, moved the Environment and Land Court at Kapsabet by Notice of motion dated 21st July 2026 seeking conservatory orders restraining the respondents from coercing his 99-year-old father, Kibirech Arap Chemiron (registered proprietor of title No. Kapsabet Municipality/116), from executing a power of attorney or transfer documents, and a temporary injunction restraining any dealing with the suit land without the consent of the surviving children. The applicant alleged the 1st and 2nd respondents sought to exploit the elderly parents' frailty to fraudulently dispose of the property. Before inter partes hearing, a Notice of withdrawal of the application was filed on even date, counsel Mr. Tonje confirming the application had not been served and that the subject matter was spent. Relying on the Supreme Court's decision in Robert Mutiso Lelli v Kenya Medical Training College & 2 others (2021), Ongondo J held that a party's liberty to withdraw a matter cannot be taken away and withdrawal must be permitted where no prejudice is caused. Since the respondents had not been served or filed a response, no prejudice would arise. The court found the notice of withdrawal merited and marked the application dated 21st July 2026 as withdrawn in entirety with no orders as to costs, closing the case accordingly.
Key legal issues
#01
Whether an unserved application may be withdrawn with no orders as to costs
Holding
Yes; the applicant has the right to withdraw and unserved respondents suffer no prejudice
Reasoning
Relying on the Supreme Court's decision in Robert Mutiso Lelli v Kenya Medical Training College, the court held that a party's liberty to withdraw cannot be curtailed. The application had not been served and there was no response, so no prejudice would befall the respondents. The notice of withdrawal was found merited and the application was marked withdrawn in entirety.
p. 4
Legal principles established
#- A party's liberty to withdraw a matter cannot be taken away and the court must allow withdrawal where no prejudice is caused
Court orders
#- 1.The application dated 21st July 2026 is marked as withdrawn in entirety with no orders as to costs
- 2.The case is closed accordingly
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to permit withdrawal of an application; civil procedure principles on withdrawal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kimely Birech v Alice Chepketer Chemiron & 2 others", Case Analysis (2026). ELCLMISC. NO. E012 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5712/eng@2026-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.