David Mwakondo Maganga v Divyanshu Ravinshaker Panchal & 9 others

2. The suit was initially instituted by Divyanshu Ravinshaker Panchal vide a Plaint dated 11th September 2017 seeking to be declared the lawful owner of land parcel No. KWALE/TSUNZA/1166 (the “suit property”), cancellation of the 3rd Defendant’s title deed and his registration as the owner thereof. 3. Divyanshu Ravinshaker Panchal withdrew his suit vide the Notice of Withdrawal of Suit dated 18th February 2021 and adopted on 1st March 2021. Prior to the said withdrawal, David Mwakondo Maganga, the Plaintiff herein had filed his Defence and Counterclaim to the Plaintiff’s suit dated 7th January 2019. Consequently, on 1st March 2021 the Court directed that the said Counterclaim proceeds for determination. 4. During the pendency of the counterclaim, Divyanshu Ravinshaker Panchal and Halima Gathanga Gachinga, the 1st and 2nd Defendant to the counterclaim, filed a joint defence to the counterclaim dated 22 nd February 2023. The 2nd Defendant filed another Defence to the Counterclaim dated 6th January 2026. 5. The 3rd Defendant, Dogo Mohamed Juma, 6th defendant Maembe Mohamed Jumaa, 7th defendant Saumu Mohamed Jumaa and 8th defendant Riziki Mohamed Jumaa jointly filed a Counterclaim dated 21st May 2021. 6. On 23rd September 2022 and 4th November 2022, with the consent of the parties, parties agreed to determine all issues in Kwale ELC No. 97 of 2021, formerly 326 of 2017. The Court ordered that Kwale ELC No. 67 of 2021, Kwale ELCJR No. 3 of 2021, Kwale MCELC 21 of 2021 be stayed pending the hearing of Kwale ELC No. 97 of 2021, formerly 326 of 2017. 7. The matter was slated for several mentions and hearings thereafter. 2|Page KWALE ELC NO. 97 OF 2021

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8. When the matter came up for hearing on 27 th July 2026, Ms. Saisi, Counsel for the Plaintiff in the counterclaim herein intimated that they had received instructions to withdraw the suit as the claim was spent. 9. The application for withdrawal of the suit was opposed. 10.Mr. Mitto, Counsel for Divyanshu Ravinshaker Panchal the Plaintiff in the original suit and the 1st Defendant in the counterclaim contended that the matter concerned an award due to be given to the Plaintiff by National Land Commission, that the ownership of the suit property was contested and as such it was in the interest of justice that the matter be heard on merit. It was submitted that it was improper for the suit to be withdrawn when it had been set down for hearing. They set down two conditions for the suit to be withdrawn, being, transfer of the suit property to Divyanshu Ravinshaker Panchal 1st Defendant in the counterclaim and payment of the award thereof to him. He further asserted that the suit herein was a lead file having been consolidated with ELC 067 of 2021 and JR 9 of 2021. 11.Mr. Borona, Counsel for Halima Gathanga Gachinga the 2 nd Defendant in the counterclaim associated himself with the submissions of the 1 st Defendant. He submitted that the matter was highly litigated and referred to a consent between the Plaintiff and the 3rd, 7th, 9th and 10th Defendants dated 24th July 2025. He surmised that the withdrawal was an attempt to scuttle justice. 12.Mr. Musah, Counsel for the 3rd Defendant associated himself with the sentiments of the 1st and 2nd Defendants. 13.Ms. Mwanazumbah, Counsel for the 4th, 5th and 6th Defendants submitted that they would take the Court’s directions. 3|Page KWALE ELC NO. 97 OF 2021

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14. Mr. Gathu, Counsel for the 3 rd, 9th and 10th Defendants indicated that they did not oppose the withdrawal of the suit save for costs. He submitted that they had filed a counterclaim dated 21 st May 2026 wherein the 3rd, 9th and 10th Defendants herein were the Plaintiffs and the Plaintiff herein was the 1st Defendant in the said counterclaim. 15.Mr. Gichana, Counsel for the 2nd, 3rd , 7th, 8th, 9th, and 10th Defendants submitted that where a defendant desires to claim as against a defendant in a suit, he ought to issue a notice. It was his contention that withdrawal of the suit implies there is no pending suit except for those who had made a counterclaim. 16.The Court upon hearing the respective counsel, directed parties to file written submissions on the issue of withdrawal of the suit. Submissions 17.The Plaintiff filed his submissions dated 14 th August 2026. It was submitted that the Plaintiff has absolute right to withdraw the suit and that a party cannot be forced to litigate its case against its will. It was further submitted that no cause of action exists between the Plaintiff as against the Defendants and that, upon withdrawal of the suit, there remained nothing for the Court to determine save for the issue of costs. 18.The 2nd, 3rd, 7th, 8th, 9th, and 10th Defendants filed their submissions dated 27th July 2026. They submitted that following the withdrawal of the suit, no substantive claim remained for determination other than the issue of costs. 4|Page KWALE ELC NO. 97 OF 2021

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It was further submitted that upon withdrawal of the initial plaint, and the current suit, the consolidation of the suits ceased to have any legal effect. On the issue of representation, the Defendants submitted that each Defendant concerned ought to swear an affidavit confirming the advocate duly appointed to represent them. Issue, Analysis and Determination 19.The court has carefully considered the Plaintiff’s Notice of Withdrawal dated 21st July 2026, the oral and written submissions, the authorities cited and the relevant legal provisions. The Court distills three issues for determination. a) Whether the Plaintiff’s Notice of Withdrawal should be allowed; b) What is the effect, if any, of the discontinuance of the Plaintiff’s suit on the 3rd Defendants’ Counterclaim and the consolidated suits; and c) Who should bear the costs of the suit? Whether the Plaintiff’s Notice of Withdrawal should be allowed. 20.The Plaintiff’s Notice of Withdrawal of Suit is premised on Order 25 Rule 2 of the Civil Procedure Rules. 21.Order 25 Rule 1 and 2 of the Civil Procedure Rules provides thus: 1. Withdrawal by plaintiff [Order 25, rule 1] At any time before the setting down of the suit for hearing the plaintiff 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 5|Page KWALE ELC NO. 97 OF 2021

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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 plaintiff 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. 22.In the case of Nicholas Kiptoo Arap Korir Salat v.Independent Electoral and Boundaries Commission & Others (2014) eKLR, the Supreme Court of Kenya rendered itself on the issue of withdrawal of suit as follows; “A party’s right to withdraw a matter before court cannot be taken away. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.” 23. Equally in Beijing Industrial Designing & Researching Institute v Lagoon Development Ltd (2015) eKLR, the Court of Appeal posited that: “As a general proposition, the right of a party to discontinue a suit or withdraw his claim cannot be questioned. There are many circumstances when a plaintiff may legitimately wish to discontinue his suit or withdraw his claim. The Supreme Court of Nigeria in Abayomi Babatunde v. Pan Atlantic Shipping & Transport Agencies Ltd & others, SC 154/2002 identified those circumstances to include where: (i) a plaintiff realizes the weakness of his claim in 6|Page KWALE ELC NO. 97 OF 2021

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the light of the defence put up by the defendant, (ii) a plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date, (iii) where by abandoning the prosecution of the case, the plaintiff could substantially reduce the high costs that would have otherwise followed after a full-scale but unsuccessful litigation, or (iv) a plaintiff may possibly retain the right to re-litigate the claim at a more auspicious time if necessary. In the above case Justice Ibrahim Tanko Mohammad also addressed his mind, albeit in the context of the law of Nigeria, to the right of a party to withdraw his suit, and made observations, which we think are pertinent to the central issue before us. The learned judge stated that a plaintiff has a right to discontinue his action if he so chooses because the filing of the action does not necessarily imply that the parties have irrevocably committed themselves to resolving their dispute by litigation. In addition, a court of law cannot force an unwilling plaintiff to continue with an action because, even if the court insists that he should continue, he may well refuse to tender evidence or take any further steps in the action.” 24. In the case of Priscilla Nyambura Njue v. Georhem Middle East Ltd Kenya Bureau of Standards (Interested Party) 2021 eKLR, the court stated as follows: “The right provided under Order 25 Rules 1 & 2 (1) is not fettered by any conditions; it is an absolute right which a plaintiff can exercise at his sweet will at any time before the judgment is delivered….” 25.The Court of Appeal in Beijing Industrial Designing & Researching Institute Case, supra, further discussed the instances of discontinuance of suits or withdrawal of claims. The court stated as follows: “The above provision presents three clear scenarios regarding discontinuance of suits or withdrawal of claims. The first scenario arises where the suit has not been set down for hearing. In such an 7|Page KWALE ELC NO. 97 OF 2021

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instance, the plaintiff is at liberty, at any time, to discontinue the suit or to withdraw the claim or any part thereof. All that is required of the plaintiff is to give notice in writing to that effect and serve it upon the all the parties. In that scenario, the plaintiff 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. In this scenario, the right of the plaintiff is circumscribed by the requirement that he must obtain the written consent of all the other parties. The last scenario arises where the suit has been set down for hearing but all the parties have not reached any consent on discontinuance of the suit or withdrawal of the claim or any part thereof. In such eventuality, the plaintiff must obtain leave of the court to discontinue the suit or to withdraw the claim or any part thereof, which is granted upon such terms as are just. In this scenario too, the plaintiff’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.” 26.Upon consideration of the pleadings, the record, the respective submissions, and the above authorities, the Court finds that the present case falls within the third scenario outlined above pursuant to Order 25 Rule 2(2) of the Civil Procedure Rules. The suit having been set down for 8|Page KWALE ELC NO. 97 OF 2021

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hearing on several occasions and there being no consent by all the parties to its withdrawal, the Plaintiff requires leave of the Court to discontinue the same. Such leave may be granted upon such terms as to costs, the filing of any subsequent suit or otherwise as the Court considers just. 27.The Court is cognizant that this dispute concerns competing claims to ownership of the suit property, with each of the parties asserting a proprietary interest therein. The Plaintiff, the 1 st Defendant and the 3rd Defendant each claim to be the lawful owner of the suit property. The 2 nd Defendant, on the other hand, seeks a declaration that the suit property forms part of the estate of Juma Gandaza. The Court is also alive to the existence of the 3rd Defendant’s pending Counterclaim, as well as the consolidated matters, which raise substantive questions concerning the proprietary interests in the suit property. 28.Notwithstanding the foregoing, the Court must distinguish between the Plaintiff’s claim and the claims raised by the Defendants. The Plaintiff has reiterated his intention to discontinue his claim and proposed to bear costs of the suit in the Notice of Withdrawal dated 21 st July 2026. The Supreme Court has affirmed the unfettered right of a party to discontinue proceedings, subject to the applicable legal provisions. It follows therefore 9|Page KWALE ELC NO. 97 OF 2021

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that the Court cannot compel the Plaintiff to continue with the suit. The role of this Court is therefore not to compel the Plaintiff to proceed with his claim, but to determine whether leave should be granted and, if so, on what terms so as to ensure that the discontinuance does not cause prejudice the other parties. 29.In the circumstances, the Court finds that the appropriate course, in the interests of the just and expeditious disposal of the matter, is to grant the Plaintiff leave to discontinue his claim pursuant to Order 25 Rule 2(2) of the Civil Procedure Rules. The Plaintiff having expressed his intention not to pursue the claim, compelling him to proceed with the suit would serve no useful purpose and would only result in the Court engaging in an academic exercise in determining a claim that the Plaintiff no longer wishes to prosecute. 30.Accordingly, the Plaintiff is granted leave to discontinue the suit pursuant to Order 25 Rule 2(2) of the Civil Procedure Rules, and the Notice of Withdrawal is hereby allowed. Effect, if any, of the discontinuance of the Plaintiff’s suit on the 3rd 8th 9th and 10th Defendants’ Counterclaim and the consolidated suits 10 | P a g e KWALE ELC NO. 97 OF 2021

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31.Order 7 rule 13 of the Civil Procedure Rules provides for the effect of discontinuance, stay or dismissal of a suit on a counterclaim. It states thus: “If, in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.” 32.In County Government of Kwale & 2 others v Rahimkhan & 5 others [2023] KECA 308 (KLR), the Court of Appeal with respect to Order 7 Rule 13 of the Civil Procedure Rules succinctly held thus: “10. The rationale for this provision is that a counterclaim is separate claim and is only brought within the main claim for the purposes of convenience. A counterclaim is a case in its own right, completely different from the plaintiff’s case and it will fall or succeed on its own merits… 11.It is therefore clear that the discontinuation of the plaintiffs’ suit did not necessarily mean that the appellant’s counterclaim was thereby overtaken by events.” 33.In this case, the 3rd 8th, 9th and 10th Defendants’ Counterclaim was on record before the Plaintiff sought to discontinue the suit. The discontinuance of the Plaintiff’s claim does not extinguish the said Counterclaim. The 3 rd, 8th, 11 | P a g e KWALE ELC NO. 97 OF 2021

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9th and 10th Defendants’ counterclaim therefore remains pending for determination. Effect, if any, of the discontinuance of the Plaintiff’s suit on the consolidated suits. 34. The court in Methodist Church in Kenya Trustees Registered & 4 others v M’impwii & 14 others [2023] KEHC 18491 (KLR) in determining a case where the Plaintiff in the lead file of a series of files withdrew its suit, the Court held thus: “It follows therefore that contrary to the assertions by counsel for the Plaintiff and Rev. Joseph Ntombura Mwaine, the counterclaim by the 1st -5th, 9,11-13th Defendants in the lead suit and the claims in the constituent suits survived the withdrawal of the Plaintiff’s suit and the Defendants who were plaintiffs in the said pleadings were entitled to proceed to prosecute their respective claims.” 35.The 2nd, 3rd, 7th, 8th, 9th, and 10th Defendants submitted that the upon withdrawal of the initial plaint and this suit, the consolidation of the suit ceased to have any legal effect. 36.It is instructive to note that the Court’s orders of 23rd September 2022 and 4th November 2022, were that Kwale ELC No. 67 of 2021, Kwale ELCJR No. 3 12 | P a g e KWALE ELC NO. 97 OF 2021

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of 2021, and Kwale MCELC 21 of 2021 be stayed pending the hearing and determination of Kwale ELC No. 97 of 2021, being this suit. This suit remains pending determination pursuant to the 3rd 8th, 9th and 10th Defendants’ counterclaim. In the absence of any order setting aside or varying the orders for consolidation, the Court finds that the consolidation of the respective files remains in force and is not extinguished by the discontinuance of the Plaintiff’s suit. The pending counterclaim continues to sustain the proceedings in the lead file and, consequently, the orders for consolidation survive the discontinuance of the Plaintiff’s claim. Who should bear the costs of the suit. 37.It is trite that costs follow the event. Order 25 Rule 3 entitles a defendant to apply for the costs of a suit that has been withdrawn. 38.All the Defendants herein had instructed counsels who filed various pleadings and participated in the matter prior to the withdrawal. They consequently incurred costs in defending the suit. It is worth noting that vide its Notice of Withdrawal dated 21st July 2026, the Plaintiff indicated its willingness to bear the costs of the suit / Counterclaim. In the circumstances the Court finds that there is no basis upon which the Defendants should be deprived of the costs occasioned by the withdrawal 13 | P a g e KWALE ELC NO. 97 OF 2021

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of the Plaintiff’s suit. Accordingly, the Plaintiff shall bear the costs of the withdrawn suit. 39.In the end, and in the interests of the just and expeditious disposal of the dispute herein, the Plaintiff is hereby granted leave to discontinue the suit. The Plaintiff shall bear the costs of the suit. The 3 rd 8th, 9th and 10th Defendants’ Counterclaim dated 21st of May 2021 filed in this file shall be set down for hearing. The parties shall comply with the pre-trial directions within the timelines to be issued by the Court. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 24th DAY OF SEPTEMBER 2026. HON. E.G NDERITU L J ELC KWALE In the presence of: Ms Saisi for the Plaintiff Mr Mitto for the 1st Defendant Mr Borona for the 2nd Defendant Mr Gichana for the 3rd, 7th, 9th, and 10th Defendants Mr Gathu for the 3rd, 7th and 8th Defendants Ms Mwanazumbah for the 4th, 5th and 6th Defendants. Ms Halima C/A 14 | P a g e KWALE ELC NO. 97 OF 2021

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