Jingo Tours and Safaris Limited & another v Swaleh & 2 others (Environment and Land Case E068 of 2026) [2026] KEELC 4587 (KLR)

3. The law on this narrow question is settled, and it is short. Order 25 Rule 1 of the Civil Procedure Rules, 2010 speaks with clarity: “ 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…” 4. The plaintifi, it has long been said, is dominus litis — master of his own suit. He who lights the fire may also, before the neighbours have gathered, quench it. This principle is not a creature of judicial charity; it is a right written into the Rules. The Court of Appeal, in Kenya Commercial Bank Limited v. Benjoh Amalgamated Limited [2014] eKLR, reafirmed that a plaintifi enjoys an untrammelled right of discontinuance at the pre-hearing stage — subject only to considerations of costs and abuse of process. 5. The Supreme Court has spoken in the same voice. In Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2014] eKLR, the Court afirmed that costs follow the event, but that the award is at the discretion of the Court, to be exercised judiciously and not mechanically. That discretion was again exercised in Mike Mbuvi Sonko v. Clerk, County Assembly of Nairobi City & 12 Others [2022] KESC (SC Petition No. 14 (E021) of 2021), where, upon a like Notice of Withdrawal with no order as to costs, the Supreme Court accepted the withdrawal and directed that each party bear its own costs. 6. And in Cecilia Karuru Ngayu v. Barclays Bank of Kenya Ltd & Another [2016] eKLR, the High Court underscored what is now trite: withdrawal is the plaintifi’s prerogative; but the Court retains the residual power to attach terms as justice requires. 7. I have considered whether there is any warrant to interfere with what the Plaintifis have proposed. There is none. The Defendants have not been put to the labour of a full defence. No inter partes hearing has been convened. No interim advantage has been reaped by the Plaintifis in this file which the Defendants must now claw back. The Plaintifis come to Court not to steal a march, but to lay down their arms. Where the dominus himself asks the Court to close the door, the Court should not press him to keep it ajar. 8. As Lord Denning MR was fond of observing, courts exist to do justice, not to prolong disputes for their own sake; and as Cardozo J. counselled in The Nature of the Judicial Process, the judge’s task is to keep the law’s method “in touch with life.” Life, in the person of these Plaintifis, has moved on from this application. It is meet that the record should follow. 9. Withdrawal, once made, is a final act. As this Court has repeatedly held — most recently in Ohas & Another v. Gachagua & 5 Others [2023] KEELC 18939 (KLR), and earlier in Charles Kiptarbei Birech v. Paul Waweru Mbugua & Another [2021] eKLR — once a suit or application is withdrawn under Order 25, it ceases to exist and cannot be resurrected within the same file. The Plaintifis have been so advised, and they persist. That is their right. Orders 10. Accordingly, the Court makes the following orders: (a) The Notice of Withdrawal dated 14th July 2026 is hereby allowed. (b) The Notice of Motion dated 22nd June 2026 is marked as withdrawn in its entirety as against the 1st, 2nd and 3rd Defendants/Respondents. (c) There shall be no order as to costs, as prayed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4587/eng@2026-07-16 2

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(d) The file is accordingly closed. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 16TH DAY OF JULY, 2026. ................ HON. LADY JUSTICE B. AKELLO, OGW JUDGE In the presence of: Gillian - Court assistant Choni H/B for Odhiambo for the plaintifi N/A for the defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4587/eng@2026-07-16 3

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