Muthee & 4 others v Damah Alliance Limited & 7 others; Law Society of Kenya & another (Interested Parties) (Environment & Land Petition E012 of 2023) [2023] KEELC 20385 (KLR) (2 October 2023) (Ruling) Neutral citation: [2023] KEELC 20385 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ENVIRONMENT & LAND PETITION E012 OF 2023 EK WABWOTO, J OCTOBER 2, 2023 BETWEEN DAVID MUTHAMI MUTHEE ........................................................ 1ST PETITIONER ANN WANJIRU NDICHU ............................................................. 2ND PETITIONER FRANCIS GATERI .......................................................................... 3RD PETITIONER PATRICK MWANIKI NDWIGAH ................................................ 4TH PETITIONER JOHNSON MJOROGE EPHANTUS ............................................. 5TH PETITIONER AND DAMAH ALLIANCE LIMITED ................................................... 1ST RESPONDENT MOHAMED KER MOHAMED ................................................... 2ND RESPONDENT DAWID SHEIK ABDULRAHMAN ............................................. 3RD RESPONDENT THE INSPECTOR GENERAL OF POLICE ............................... 4TH RESPONDENT THE NAIROBI CITY COUNTY ................................................. 5TH RESPONDENT CECM, BUILT ENVIRONEMNT & URBAN PLANNING NAIROBI CITY COUNTY ........................................................................................ 6TH RESPONDENT THE CHIEF LAND REGISTRAR ............................................... 7TH RESPONDENT THE ATTONEY GENERAL ......................................................... 8TH RESPONDENT AND LAW SOCIETY OF KENYA .................................................... INTERESTED PARTY THE KENYA NATIONAL HUMAN RIGHTS COMMISSION .... INTERESTED PARTY https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20385/eng@2023-10-02 1
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RULING 1. The Petitioners herein through the law rm of Abdiaziz & Co Advocates instituted this Petition vide a Petition dated September 6, 2023. Subsequently thereafter the 2nd to 5th Petitioner instructed the law rm of MA Odhiambo & Co Advocates and led a notice of discontinuance and withdrawal of the said Petition with no order as to costs. No reasons were given for the said withdrawal in the said notice. However, the 2nd & 5th Petitioners also led separate adavits the gist of which they denied ever consenting to the ling the said Petition. 2. On September 18, 2023 when the said Petition was scheduled for directions, Counsel Abdiaziz who purportedly was acting for all Petitioners opposed the said withdrawal by the 2nd to 5th Petitioners and argued that the same had been made under duress. 3. The Constitution of Kenya [2010] (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013 provides at Rule 27(1) that: “ 7(1) 4. The Petitioner may: a. On notice to court and the Respondent apply to withdraw the Petition, or b. With leave of the court discontinue the proceedings.” In the case of Harry John Paul Aigi & 2 others vs. Board of Kenya Ports Authority & 2 others [2016] eKLR., it was held that; “ Rule 27(1) (a) allows a Petitioner who wishes to withdraw a petition to apply to withdraw the same after giving notice of his intention to both the court and the Respondent.” 5. Clearly, under that provision, the withdrawal of the Petition is not automatic and is not anchored merely by notice. The said rule is very clear that a Petitioner may have to apply to the court to withdraw a Petition already led. 6. In the instant case, Counsel Abdiaziz objected to the said withdrawal by the 2nd – 5th Petitioners on the reasons that the same had been made through duress and coercion. However, statement by counsel was adduced from the bar which and was countered by the express adavits sworn and led herein by the 2nd to 5th Petitioners. 7. In the circumstances, I shall proceed to allow the withdrawal of the Petition by the 2nd to 5th Petitioners with no order as to costs. However, the 1st Petitioner is at liberty to proceed with the said Petition as against the Respondents. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF OCTOBER, 2023. E. K. WABWOTO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20385/eng@2023-10-02 2
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