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ELCOtherELCL CASE NO. E009 OF 2023

David Mururu M'itaru v Paul Mathew Itaru & 5 others

Environment and Land Court
30 September 2026
BEB M Eboso
197 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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A Meru court let a landowner withdraw an injunction application, but kept the costs question open until the main land case is decided.

What this practically means

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Executive summary

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This is a brief ex tempore ruling of the Environment and Land Court at Meru (B M Eboso, ELC Judge) in a land suit in which David Mururu M'itaru sues Paul Mathew Itaru, Samuel Mwia Itaru, Beatrice Akui Itaru, the Land Registrar Meru County, the Sub County Land Adjudication & Settlement Officer Tigania West/East and the Attorney General. The 1st defendant had moved the court by notice of motion dated 17/9/2026 seeking an interlocutory injunction. On the hearing date, before the application could be argued, the 1st defendant filed a notice withdrawing it, and counsel orally prayed that it be marked 'withdrawn with no order as to costs'. No party objected to the withdrawal. The court marked the application 'withdrawn' but, departing from the costs prayer, ordered that costs shall be in the cause, meaning costs of the withdrawn application will be determined at the conclusion of the suit. The ruling determines no substantive issue in the dispute; the underlying claim over land remains pending. No authorities were cited and no statutory provisions were discussed. The only points of note for practitioners are the court's discretion to reserve costs on a withdrawal notwithstanding an unopposed no-costs request, and internal anomalies in the record (the 2026 motion date against a 2023 suit number, and the unexplained departure from the costs prayer).

Questions the Court framed

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

  1. 1.Whether the 1st defendant's notice of motion dated 17/9/2026 seeking an interlocutory injunction, which the 1st defendant withdrew by notice, should be marked withdrawn and on what costs terms

Key legal issues

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01

Withdrawal of an interlocutory application and costs

Holding

The application was marked withdrawn with costs left in the cause

Reasoning

The 1st defendant filed a notice withdrawing the injunction application and counsel orally prayed for withdrawal with no order as to costs. No party objected to the withdrawal. The court, ex tempore, marked the application withdrawn but declined to make the requested no-costs order, instead reserving costs to the outcome of the suit.

p. 2

Legal principles established

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  • Where an interlocutory application is withdrawn without objection and no costs agreement is reached, the court may mark it withdrawn and reserve costs to the cause

Court orders

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  1. 1.The application dated 17/9/2026 is marked 'withdrawn'
  2. 2.Costs shall be in the cause

The bench

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

BE
majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (suit for interlocutory relief in a land dispute; no specific provision invoked in the ruling)

Relief refused

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Interlocutory injunction sought by notice of motion dated 17/9/2026

The 1st defendant withdrew the application before hearing; the court did not determine it on the merits

p. 2

Costs

Costs shall be in the cause (despite counsel's oral prayer for no order as to costs)

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.

In the absence of any objection, the application dated 17/9/2026 is marked "withdrawn". Costs shall be in the cause.
p. 2Final orders - withdrawal and costs
counsel for the 1st defendant has orally prayed that the application be marked "withdrawn with no order as to costs". There is no objection to the plea to withdraw the application.
p. 2Withdrawal without objection

Issues in the judgment

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minor

Court ordered costs in the cause despite counsel's unopposed prayer for no order as to costs

minor

Application dated 17/9/2026 in a case numbered E009 of 2023 - date/numbering anomaly

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, "David Mururu M'itaru v Paul Mathew Itaru & 5 others", Case Analysis (2026). ELCL CASE NO. E009 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6049/eng@2026-09-30

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