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Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 139 of 2018

Samuel Kintalele Kiparen & 7 others v Timothy T. Saiyori & 5 others

Environment and Land Court
29 September 2026
1,096 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.D. Mwangi, J) determines an application by the 6th and 7th plaintiffs, Josiah Machuki Mandieka and Phellis Mandieka, to withdraw their suit against the 1st to 4th defendants with no order as to costs. The 4th defendant, through counsel, did not object to the withdrawal but demanded costs, and disclosed an undefended counterclaim against the plaintiffs. The court noted that the law firm of Morara Apiemi and Nyangito advocates had earlier been allowed to cease acting for the 1st–5th and 8th plaintiffs, so the applicants' counsel could speak only for the 6th and 7th plaintiffs. Guided by Supreme Court authority that withdrawal is a matter of right subject to costs, and that costs follow the event subject to judicial discretion, the court allowed the withdrawal but awarded costs to the defendants because the matter had been set down for hearing and adjourned at the plaintiffs' instance. Relying on Court of Appeal authority, the court held that a counterclaim is a stand-alone suit that survives withdrawal of the main suit. The cases of the 1st–5th plaintiffs, the 8th plaintiff, Dr. Moni Wekesa and Roselyn Sisiala Wekesa, and the counterclaim, were left intact and set down for hearing forthwith.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 6th and 7th plaintiffs may withdraw their suit against the defendants
  2. 2.Whether the withdrawing plaintiffs should bear the defendants' costs
  3. 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

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01

Right of withdrawal of suit

Holding

The 6th and 7th plaintiffs have a right to withdraw their suit, subject to costs

Reasoning

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.

p. 6
02

Costs upon withdrawal

Holding

Costs were awarded to the defendants because the matter had been set down for hearing and adjourned at the plaintiffs' instance

Reasoning

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.

p. 6
03

Effect of withdrawal on counterclaim and remaining plaintiffs

Holding

The withdrawal by the 6th and 7th plaintiffs does not affect the remaining plaintiffs' case or the counterclaim, which is a stand-alone suit

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The case by the 6th and 7th plaintiffs is marked as withdrawn with costs to the defendants
  2. 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

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 6

Costs

Withdrawal allowed with costs to the defendants; the 6th and 7th plaintiffs' case marked as withdrawn with costs to the defendants.

Quotable passages

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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.
p. 7Final orders - withdrawal with costs
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.
p. 7Final orders - remaining suit to proceed
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.
p. 6Withdrawal as of right subject to 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.
p. 6Independence of counterclaim

Issues in the judgment

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minor

Cause number inconsistency

minor

Misdescription of parties in paragraph 8

minor

Counsel name inconsistencies

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, "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.