Samuel Kintalele Kiparen & 7 others v Timothy T. Saiyori & 5 others
The bottom line
#A Kenyan court allowed two plaintiffs to drop their land case but made them pay the defendants' legal costs because the case was already ready for hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 6th and 7th plaintiffs may withdraw their suit against the defendants
- 2.Whether the withdrawing plaintiffs should bear the defendants' costs
- 3.Whether the withdrawal of the 6th and 7th plaintiffs' case affects the remaining plaintiffs' case and the 4th defendant's counterclaim
Key legal issues
#Right of withdrawal of suit
The 6th and 7th plaintiffs have a right to withdraw their suit, subject to costs
Guided by the Supreme Court's pronouncement in Council of Governors v Senate, withdrawal is a matter of right subject to costs. The court upheld that right but declined to grant it cost-free given the state of the matter.
Costs upon withdrawal
Costs were awarded to the defendants because the matter had been set down for hearing and adjourned at the plaintiffs' instance
Applying DPP v Kamau and Jasbir Singh Rai, costs follow the event but are governed by judicial discretion. The plaintiffs' adjournment of a hearing-ready matter was a special circumstance justifying costs against the withdrawing plaintiffs.
Effect of withdrawal on counterclaim and remaining plaintiffs
The withdrawal by the 6th and 7th plaintiffs does not affect the remaining plaintiffs' case or the counterclaim, which is a stand-alone suit
Relying on County Government of Kilifi v Mombasa Cement and Beatrice Mumbi Wamahiu v Mobil Oil, a counterclaim breathes its own life and survives independently of the main suit; the other plaintiffs' cases remain for hearing.
Legal principles established
#- The right to withdraw or discontinue proceedings is allowed as a matter of right, subject to any issue of costs claimable by respondents
- Costs follow the event but the ultimate factor is the judiciously exercised discretion of the court
- A counterclaim is a stand-alone suit that survives withdrawal of the main suit
Court orders
#- 1.The case by the 6th and 7th plaintiffs is marked as withdrawn with costs to the defendants
- 2.The case by the 1st–5th plaintiffs and the 8th plaintiff as well as that by Dr. Moni Wekesa and Roselyn Sisiala Wekesa shall be set down for hearing forthwith
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (not expressly cited in the ruling)
Relief refused
#Withdrawal with no order as to costs
The matter had been set down for hearing and adjourned at the plaintiffs' instance; no reason to exonerate them from costs
Costs
Withdrawal allowed with costs to the defendants; the 6th and 7th plaintiffs' case marked as withdrawn with costs to the defendants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A. The case by the 6th and 7th plaintiffs is hereby marked as withdrawn with costs to the defendants.
B. The case by the 1st- 5th plaintiffs and the 8th plaintiff as well as that by Dr. Moni Wekesa and Roselyn Sisiala Wekesa shall be set down for hearing forthwith.
While the court upholds the right of the 6th and 7th plaintiffs to withdraw their suit against the defendants, there is absolutely no reason to exonerate them from paying the costs.
It is trite that a counterclaim is a stand-alone suit. The defendant instituting the counterclaim becomes the plaintiff for all intents and purposes.
Issues in the judgment
#Cause number inconsistency
Misdescription of parties in paragraph 8
Counsel name inconsistencies
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kintalele Kiparen & 7 others v Timothy T. Saiyori & 5 others", Case Analysis (2026). ELC No. 139 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6037/eng@2026-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.