Ndangána v Masika & another (Environment and Land Appeal E021 of 2023) [2025] KEELC 7778 (KLR)

for revocation of notice of withdrawal and reinstatement of suit after service of notice of withdrawal. That the applicant has to date never served the motion dated 14/10/2024 despite having been ordered to serve, which compelled the respondent’s advocate to download it from the court’s CTS. 4. Parties filed submissions in support of their respective positions. On record are submissions filed by the applicant dated 16th October 2024 and those filed by the respondent dated 23rd July 2025; both of which this court has duly considered. Analysis and determination 5. Having considered the application, the replying afidavit as well as parties’ rival submissions, the only issue that arise for the court’s determination is whether the applicant deserves the orders sought. 6. Order 26 Rule 1 of the CPR provides for withdrawal of suit as follows; “ Withdrawal by plaintifi [Order 25, rule 1] 1. At any time before the setting down of the suit for hearing the plaintifi may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action. 2. Discontinuance [Order 25, rule 2] 1. Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all the parties. 2. Where a suit has been set down for hearing the court may grant the plaintifi leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just. 3. The provisions of this rule and rule 1 shall apply to counterclaims.” 7. Therefore, a party can withdraw their suit any time before the suit is set down for hearing. In such a case, the withdrawal takes efiect on the service of the withdrawal notice. However, where a suit has been set down for hearing, the withdrawal takes efiect upon filing of a written consent by the parties or by leave of court. 8. In the case of Beijing Industrial Designing & Research Institute v Lagoon Development Ltd (2015) KECA 365 (KLR), the Court of Appeal set out the three scenarios regarding discontinuance or withdrawal of suits as follows: “ The above provision presents three clear scenarios regarding discontinuance of suit or withdrawal of claims. The first scenario arises where the suit has not been set down for hearing. In such an instance, the plaintifi is to give notice in writing to that efiect and serve it upon all the parties. In that scenario, the Plaintifi has an absolute right to withdraw his suit, which we agree cannot be curtailed. The second scenario arises where the suit has been set down for hearing. In such a case the suit may be discontinued or the claim or any part thereof withdrawn by all the parties signing and filing a written consent of all the other parties. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7778/eng@2025-11-05 2

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last scenario arises where the suit has been set down for hearing but all the parties have not reached any consent on the discontinuance of the suit or withdrawal of the claim or any part thereof. In such eventuality, the plaintifi must obtain leave of court to discontinue the suit or withdraw the claim or any part thereof, which is granted upon such terms as are just. In this scenario too, the plaintifi’s right to discontinue his suit is circumscribed by the requirement that he must obtain the leave of the court. That such leave is granted on terms suggests that it is not a mere formality” 9. In the instant matter, the appellant filed the Memorandum of appeal on 14/9/2023 and on 14/12/ 2023, he filed a notice of withdrawal of the appeal dated 14/12/2023. The respondent states that her counsel was served with notice of withdrawal of appeal on 12/02/2024. 10. No directions for the hearing of this appeal have been issued by this court and no Record of appeal has been filed by the appellant. Therefore, the withdrawal of this appeal was made before the appeal had been set down for hearing, therefore the same took efiect from the date of service of the notice of withdrawal of appeal, which is 15/2/2014. Thus, this appeal was efiectively withdrawn as of 15/2/2024. In the instant application counsel for the appellant did not cite any law under which the application was presented or which law allows a withdrawn appeal to be reinstated. In my view once an appeal is withdrawn, there is nothing capable of being reinstated. Besides, the appeal herein having been withdrawn on 15/2/2024, there is no appeal before court capable of being amended hence the prayer for amendment of memorandum of appeal is dismissed. 11. The appellant’s allegation that the withdrawal by his former advocate was without his instructions, was baseless and without proof as it is trite that instructions to an advocate are presumed to exists unless proved otherwise. (See Kenya Commercial Bank v Specialized Engineering Co. Ltd (1980) KEHC 11 (KLR)). In the instant matter, the appellant did not rebut this presumption, by availing evidence to show that at the point of withdrawal of the appeal, the firm of Kiveu Advocates acted without instructions. 12. Order 9 Rule 9 allows a party who wishes to change an advocate after conclusion of case to do so with leave of court. The appellant is entitled to an advocate of his choice. As no impediment exists to stop the firm of Maobe Mukhwana appearing for the appellant, the appellant’s prayer in that regard is hereby allowed. 13. In the premises, save that the firm of Maobe Mukhwana & Company Advocates is granted leave to represent the appellant in the place of Kiveu & Company Advocates, the application dated 3rd May 2024 is hereby dismissed with costs to the respondent. 14. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 5TH DAY OF NOVEMBER 2025. A. NYUKURI JUDGE In the presence of; Ms. Mukhwana for the appellant No appearance for the respondent Court Assistant- Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7778/eng@2025-11-05 3

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