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this submission, the 1st to 6th Respondents cited several case law inter alia, Charles Kiptarbei Birech vs Paul Waweru Mbugua (2021)Eklr where Nyagaka J observed thus; 19. Of importance to note is that the Rules that provide for the discontinuance or withdrawal of a suit do not provide for the revocation of withdrawal notice or the setting aside of the suit. And once a suit is discontinued in whichever manner howsoever, it ceases to exist. A party cannot breathe life into it by whichever means, not even by a consent setting aside the orders of withdrawal. This is because, once a suit is withdrawn there is no party that exists in relation to that suit. The existence of a suit can be equated to the existence of light from a bulb: it only exists if there is an electric current and the gadget known as “bulb”. Once the either the light or the bulb cease to be in contact, the light goes out and in its place is darkness. The only way to get light again in that bulb is to supply current to it. The light that comes into existence again it not the continuation of the one that went out: it is new. 20. In regard to the Procedure relevant to the facts of this case, then, the only recourse an individual who was a party to a withdrawn or discontinued suit has is to le a fresh suit if the law permits him or her. The withdrawal does not activate the bar of res judicata. In Antony Kayaya Juma v Humprey Ekesa Khaunya & Another [2004] e KLR, the court held: ”It is my humble view that a suit which has been withdrawn pursuant to Order XXIV of the Civil Procedure Rules cannot be reinstated… the law under this Order does not envisage a litigant to seek for an order of reinstatement.” 21. In Priscilla Nyambura Njue v Geovhem Middle East Ltd; Kenya Bureau of Standards (Interested Party) [2021] eKLR, Justice Mativo observed: “ Withdrawal of a suit is itself its end. The right of a plainti to withdraw his suit is not a divine right but a right expressly conferred upon him by Order 25 and no right is similarly conferred upon him to revoke or rescind the withdrawal. So long as he remains the plainti, he may do any act which he may do in that capacity; he cannot, after withdrawal of the suit resulting in the loss of the capacity, do an act which can be done only in that capacity. Put dierently, there is no provision conferring the right to revoke the withdrawal and there is no justication for saying that the right to withdraw includes in itself a right to revoke the withdrawal. …The withdrawal took eect immediately the court permitted it and as observed earlier, Order 25 has no provision permitting reinstatement of a suit once the withdrawal has taken eect.” 3. On the question whether reinstating a withdrawn suit lies in law, the Plaintis submitted that parameters for consideration in setting aside an order for withdrawal of a suit was laid out in Westward Properties Limited v Chezer Investments Limited [2016]eKLR by Justice Fred Ochieng to be; fraud, collusion, mistake or misrepresentation and that this is the decision that persuaded the Court in Monica A Otieno & 32 others v Jaramogi Oginga Odinga University of Science and Technology & another [2018]Eklr to reinstate a suit which had been withdrawn by the Applicant’s erstwhile counsel. 4. From the record, on June 21, 2022, the Plaintis’ advocate a Mr Nganga informed the court that they had led a notice withdrawing the suit. Since the Defendants did not object, the withdrawal was endorsed as an order of the court. The question is whether a withdrawn suit can be re-instated. The Defendants argue that order 25 does not provide for such and that the only option is for the Plainti to le a fresh suit. They cited case law referenced above in support of the preliminary objection. I have considered the two case law cited by the Plainti in opposing the P.O. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18939/eng@2023-07-20 2

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5. For instance, the case of Westward Properties Limited supra is persuasive and the grounds of fraud, mistake and or misrepresentation to be used as a guide for setting aside an order refers to the principles for setting aside a consent order. In this case, the notice of withdrawal of the suit was an initiative of the Plaintis therefore the principles for setting aside a consent order cannot be invoked. 6. In the second case of MonicaAtieno & 32 others vs Jaramogi Oginga University supra, equally persuasive followed the decision in Westward Properties Ltd case. In the Monica Atieno case, the Judge made reference to case law cited by the Respondents inter alia, Beth Njoroge -v- Simon Njoroge & Another [2015] eKLR in which the court stated “ ...Order 25 does not make provisions for reinstatement of a suit. However, this court has inherent powers under Section 31 of the Civil Procedure Act to make such Orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Nevertheless, this inherent power must be invoked judicially. The sole purpose for reinstatement of the suit is to deal with the issue of costs of the suit…” 7. Section 31 of the Civil Procedure Act deals with transfer of decrees therefore, the court in the case cited above may have referred to section 3 which provides for the inherent powers of the court. Mativo J (as he then was) in the case of Priscillah Nyambura Njue vs Geoyhem Middle East supra stated thus; “ 33. The inherent jurisdiction of the high court has long been acknowledged and applied by courts. However, a court’s inherent power to regulate its own process is not unlimited. It does not extend to the assumption of jurisdiction which it does not otherwise have. In National Union of Metal Workers of South Africa & others v Fry’s Metal (Pty) Ltd it was held: “While it is true that this Court’s inherent power to protect and regulate its own process is not unlimited – it does not, for instance, “extend to the assumption of jurisdiction not conferred upon it by statute. . .” 8. In my opinion and I so hold that Order 25 of the Civil Procedure Rules gives the party withdrawing the claim liberty to le a fresh suit no-wonder it went on to state that such discontinuance or withdrawal shall not be a defence to any subsequent action. Thus, I nd merit in the preliminary objection that re-instatement of a withdrawn suit does not lie in law. It follows that having allowed the preliminary objection, the application dated October 18, 2022 is struck out with no order as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF JULY 2023 A. OMOLLO JUDGE In the presence of Mr Nyachoti adv. For 1st to 3rd and 6th Defendants Miss Akoth h/b for Owuor adv. for Plainti CA: Valentine https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18939/eng@2023-07-20 3

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