Karanja v Njoroge & 8 others (Environment and Land Case E019 of 2025) [2026] KEELC 4004 (KLR)

2. In response to the application, the Respondent raised a Preliminary Objection dated 7th November 2025 challenging the competence of the application on the basis that the application is an abuse of the court process. 3. The Preliminary Objection is anchored on Order 25 of the Civil Procedure Rules. The Respondent contends that, upon withdrawal of the suit, the proceedings were terminated in their entirety, leaving no subsisting suit capable of reinstatement or further judicial intervention. On that premise, it is urged that the present application is incompetent ab initio. 4. Against that background, the Court is called upon to determine, at the threshold, whether the withdrawal of a suit under Order 25 necessarily extinguishes the Court’s jurisdiction to entertain subsequent applications arising from orders made within the proceedings, and whether such withdrawal, without more, is fatal to the Applicant’s standing to seek the reinstatement of the suit. 5. The matter was canvassed through written submissions filed by both parties, and thereafter orally highlighted by learned counsel. 6. Having considered the pleadings, the application, the Preliminary Objection, and the rival submissions as presented in writing and orally highlighted, the Court is called upon to determine: Whether the withdrawal of the suit ousts the Court’s jurisdiction to set aside that withdrawal and reinstate the suit Analysis and Determination 7. The resolution of the Preliminary Objection turns on the proper construction of Order 25 of the Civil Procedure Rules. The Order regulates the manner in which suits may be withdrawn or discontinued and prescribes the legal consequences that follow. It follows that the legal efiect of a withdrawal is not uniform in all circumstances, but depends on the procedural context in which it occurs. 8. In the instant matter, the Respondent’s position is anchored on a strict reading of Order 25 as bringing litigation to an unequivocal end once withdrawal is efiected. Reliance is placed on Bahati Shee Mwafundi v Elijah Wambua [2015] eKLR and Kinuthia Eston Maina & 3 others v Cofiee Board of Kenya [2015] eKLR, for the proposition that a withdrawn suit is spent and incapable of revival, and that reinstatement is not contemplated within the procedural framework. 9. The Applicant, on the other hand, urges a more elastic and justice-oriented approach invoking Sections 1A, 1B and 3B of the Civil Procedure Act alongside Articles 48 and 159 (2)(d) of the Constitution of Kenya, 2010. It is contended that the Court retains an inherent and constitutional mandate to prevent injustice where procedural closure would otherwise defeat substantive justice. Reliance is placed on Catherine Kigasia Kivai v Ernest Ogesi Kivai & 4 others [2021] eKLR, which afirms that reinstatement is a matter of judicial discretion, to be exercised judiciously and not mechanically, as further articulated in Shah v Mbogo (1967) EA 116 and Bilha Ngonyo Isaac v Kembu Farm Ltd & another [2018] eKLR. 10. In the present matter, the explanation ofiered for the withdrawal, when weighed in its full context, does not bear the imprint of a deliberate surrender of the claim. It instead speaks to an act not rooted in informed choice, and thus cannot be permitted to harden into a final foreclosure of the Court’s discretion. 11. The Court is not persuaded that the withdrawal should, in the peculiar circumstances disclosed, be elevated into an irreversible termination of the suit. Order 25, properly understood, is not an instrument of extinguishment for its own sake; it is a procedural mechanism whose application must still bow to the demands of justice where error, rather than intention, has shaped the outcome. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4004/eng@2026-06-18 2

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Respondent’s objection, though anchored in a strict reading of the rule, cannot be allowed to eclipse the Court’s duty to ensure that procedure does not become the handmaiden of injustice. 12. Accordingly, the Preliminary Objection dated 7th November 2025 is dismissed. The order of withdrawal issued on 14th October 2025 is hereby set aside, and the suit is reinstated. The Applicant shall pay throwaway costs of Kshs. 30,000 to the Respondent within twenty-one (21) days from the date hereof, failing which the reinstatement shall lapse without further reference to the Court. It is so Ordered. DATED, SIGNED AND DELIVERED, VIRTUALLY AT THIKA THIS 18TH DAY OF JUNE 2026 ……………………….. J. M. ONYANGO JUDGE In the presence of: Ms. Mugo for the Defendant Ms. Mwangi for Mr. Ndegwa for the Plaintifi Court Assistant : Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4004/eng@2026-06-18 3

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