REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY ELC CASE NO. E001 OF 2025 (O.S) EDWARD ONYANGO OBILO…………………….……….PLAINTIFF / APPLICANT VERSUS VOBBECK OTIENO OGADA………..…………. 1ST DEFENDANT / RESPONDENT GEORGE OUMA OBILO…………………..…… 2ND DEFENDANT / RESPONDENT DINA AWUOR ALOO (Sued as the legal representative of the estate of Alfonce Awit i Oria, Deceased) ……………………………3RD DEFENDANT / RESPONDENT RULING I. I) Introduction and judicial refrain. "The fault of the pleader should not be visited upon the litigant, yet litigation must b e brought to an orderly and predictable close with fairness to all who are drawn into its orbit." — Classic Legal Maxim in East African Jurisprudence. 1. This matter comes before this Court at the terminal crossroads of its procedural j ourney, following the Plaintiff’s election to withdraw the Originating Summons dated 24th March 2025. The substantive dispute originally sought an order of ad verse possession over land parcels East Karachuonyo/Kobuya/1764 and 1765. 2. In strict adherence to the parameters of this determination, this Court refrains fr om delving into the substantive merits or the underlying echoes of family succe ssion (Oyugis PMC Succession Cause No. 476 of 2020 and Homa Bay High Cour t Civil Appeal No. E107 of 2021). Instead, the canvas of this ruling is drawn narr owly to record the withdrawal, survey the chronicle of attendances, capture the dance of advocates around the thorny question of costs, and apply comparative regional jurisprudence. II. Record of attendances HOMA BAY ELC E POS E001 OF 2025, RULING. | Page
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3. The court file bears silent witness to a protracted administrative and procedural pilgrimage. The matter traversed a rigorous lifecycle across the following milest ones: i) 23/09/2025: Court in session for directions; parties took directions on com pliance. ii) 03/11/2025: Mention for updating compliance; Defendants' Replying Affi davit filed by M.J. Migele & Co. Advocates. iii)04/02/2026: Court attendance for progress confirmation; pre-trial directio ns pooled. iv)23/04/2026: Mention for highlighting compliance status. v) 30/04/2026: Court mention tracking filing status of further documentatio n. vi)25/06/2026: Mid-year compliance check and fixing of further dates. vii) 27/07/2026: Mention for confirming status of service and responses. viii) 29/09/2026: Pre-hearing directions and update on settlement/withdrawal prospects. ix) 30/09/2026: Terminal mention before Court for formal recording of the wi thdrawal and closing of file tracking. III. Summary of Advocates' Submissions & The Metaphor of Costs On behalf of the Plaintiff / Applicant (O.H. Bunde & Co. Advocates): 4. Counsel sought to lay down the burden of the suit, pointing to the tangled brier s of family history and prior succession battles as grounds to exit the courtroom stage. Counsel whispered the familiar refrain of family harmony, urging the Co urt to record the withdrawal with no orders as to costs—treating the litigation as a family misadventure best forgiven and forgotten without financial penalty. 5. On behalf of the Defendants / Respondents (M.J. Migele & Co. Advocates): Whi HOMA BAY ELC E POS E001 OF 2025, RULING. 2 | Page
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le gracefully conceding to the Plaintiff’s liberty to walk away, counsel for the De fendants refused to let the question of financial accountability vanish into thin a ir. Metaphorically speaking, while the Plaintiff wished to drop the heavy basket of litigation at the courtroom door, the Defendants insisted that the footprints le ft behind—and the heavy lifting of answering a re-litigated claim across numero us mentions from late 2025 through September 2026—must be compensated. Co unsel likened an unindemnified withdrawal to inviting a guest to a feast only to leave them with the bill: the Defendants were dragged through active defense, c ompelled to retain counsel and file extensive replying papers, and equity dema nds that the price of such an excursion cannot be brushed aside with mere senti ments of fraternity. IV. Framing of Issues The singular issue for determination before this Court is: 6. Whether, upon the withdrawal of the Originating Summons by the Plaintiff, cos ts should follow the event to the Defendants, or whether this is a fit and proper case for an alternative order as to costs, having regard to the conduct of the parti es and regional jurisprudence. 7. Comparative Regional Case Law The architecture of civil procedure across East and Central Africa speaks with one voice when a party abandons or withdraws an instituted cause: a) Kenya: Under Section 27 of the Civil Procedure Act (Cap 21), costs follow the eve nt unless the court orders otherwise. The Supreme Court of Kenya in Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2014] KESC affirmed that judicial discretion over costs must be exercised judiciously to ensure an innocent party is indemnified for defending unmeritorious or abandoned litigation. b) Uganda: Under Order 23 Rule 1 of the Civil Procedure Rules of Uganda and the principles reinforced by the Court of Appeal of Uganda in Departed Asians Proper HOMA BAY ELC E POS E001 OF 2025, RULING. | Page
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ty Custodian Board v. Jaffer & Others [1999] UGCA, a plaintiff who voluntarily dro ps a suit leaves the defendant entitled to costs, ensuring respondents are not left out of pocket after mobilizing a defense. c) Tanzania: Guided by the principles of the Court of Appeal of Tanzania in Miriam Rabieth Mndeme v. Absa Bank of Tanzania Limited (Civil Application No. 202505210 00938 of 2025), where a party initiates a court process and subsequently withdra ws it, the Court retains full equitable discretion to award costs to indemnify the r espondent for resources and time needlessly expended. d) Zambia: In accordance with the appellate principles applied in cases such as Zan a Enterprises Ltd v. National Pension Scheme Authority and Another (Appeal No. 122 of 2013), the unilateral withdrawal of court actions shifts the burden of thrown-a way costs onto the instigator, preventing procedural abuse and protecting respo ndents who attended active court milestones. VI. Determination and Final Orders 1. Withdrawal: The Plaintiff’s application and notice to withdraw the Originating S ummons dated 24th March 2025 is hereby allowed, and the main suit (ELC Case No. E001 of 2025) is accordingly marked as withdrawn. 2. Costs: While family dynamics curtained the dispute, equity does not license a liti gant to summon respondents through a labyrinth of nine structured mentions an d extensive filings only to drop the curtain without consequence. The Defendants having been drawn into the arena must be made whole; consequently, the Plainti ff shall bear the costs of the suit to the Defendants. 3. Computation / Settlement: To bring absolute and predictable closure, the parties are at liberty to record a mutual consent before the Deputy Registrar fixing the ex act payable sum for costs within thirty (30) days hereof; failing which, the Defen dants are at liberty to file a formal Bill of Costs before the Taxing Master for taxat HOMA BAY ELC E POS E001 OF 2025, RULING. | Page
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ion and recovery. THE FINAL BANQUET & THE FINAL BILL 8. Litigation is not a theatre where one may summon an audience, rehearse throug h nine grueling acts of mentions and affidavits, and then expect to exit stage left without settling the accounts. The curtains on this abortive drama must close no t with a whimper of uncompensated frustration, but with the firm gavel of justic e: He who commands the piper of litigation must ultimately pay the tune, and he who walks away from the feast of battle must leave behind the price of the armor his adversary was forced to wear. Orders accordingly. DATED, SIGNED, AND DELIVERED AT HOMA BAY THIS 30TH DAY OF SEPTEMB ER, 2026. Given virtually via Microsoft Teams platform, in the presence of; 1. Mr. Wabwire holding brief for Mr. O.H. Bunde for the Plaintiff/Applicant, 2. Mr. Migele for the Defendants/Respondents. 3. Court Assistant, Ms. Awino JUSTICE J.W WANYONYI - JUDGE ENVIRONMENT AND LAND COURT AT HOMA BAY HOMA BAY ELC E POS E001 OF 2025, RULING. | Page
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