Hassan Ali & 5 others v Basra Shone Boru

d) Costs of this application be in the cause. 2. The application is supported by the grounds set out on its face and the affidavit sworn by the 1st appellant/applicant. 3. In a nutshell, the applicants aver that they filed this appeal against the judgment of the Senior Resident Kadhi delivered on 9th February 2024 in Isiolo. That subsequently, the respondent approached them, with a view to settling the matter amicably and out of court. That based on that representation, they filed the Notice of Withdrawal of the appeal dated 16th October 2024. That this court, on 18/2/2025, this court marked the appeal as withdrawn with no orders as to costs. 4. The applicants further aver that despite several engagements thereafter, the respondent has failed to honor the promise to negotiate in good faith. That consequently, they now wish to pursue the appeal. 5. The applicants further state that the respondent will not suffer any prejudice. That the application has been filed without unreasonable delay. 6. The respondent did not file any response. 7. It is not in doubt that the applicants filed the notice of withdrawal of the appeal. MERU CIVIL APPEAL E029 OF 2024 Page 2 of 7

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8. The same was adapted by the court and the appeal was marked as withdrawn with no orders as to costs. 9. The question to be answered is whether an appeal that has been withdrawn can be reinstated. 10. There is no direct provision under Order 42 of the Civil Procedure Rule covering a withdrawal of an appeal. Thus, an analogy ought to be drawn from the wording of Order 25 of the Civil Procedure Rules which provides for withdrawal, discontinuance and adjustment of suits. It provides as follows: Order 25 - Withdrawal, discontinuance and adjustment of suits 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 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] MERU CIVIL APPEAL E029 OF 2024 Page 3 of 7

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(1) Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all the parties.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. 3. Costs [Order 25, rule 3] Upon request in writing by any defendant the registrar shall sign judgment for the costs of a suit which has been wholly discontinued, and any defendant may apply at the hearing for the costs of any part of the claim against him which has been withdrawn. 4. Stay of subsequent suit [Order 25, rule 4] If any subsequent suit shall be brought before payment of the costs of a discontinued suit, upon the same, or substantially the same cause of action, the court may order a stay of such MERU CIVIL APPEAL E029 OF 2024 Page 4 of 7

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subsequent suit until such costs shall have been paid. 11. In my view for purposes of the import and effect of a Notice of Withdrawal of an appeal is similar to that of withdrawal of a suit. 12. Once a suit is withdrawn, it ceases to exist. There is no provision for its reinstatement. Order 25 rule 4 points to the option that a party has after such withdrawal and that is the filing of another suit. 13. Therefore. I find that this court became functus officio once the appeal was withdrawn. It cannot be called upon to revive the appeal. 14. On this issue, I am guided by a number of decided cases. 15. In George Mwangi Kinuthia vs Attorney General (2019) e KLR the court held as follows: “It follows a party who withdraws his suit cannot seek to reinstate the same but a party withdrawing a suit has an option of instituting a fresh action as per provisions of Order 25 Rule 4 of the Civil Procedure Rules, 200. The order and rule herein above do not envisage a litigant who has withdrawn the suit to seek a reinstatement; as a withdrawal means there is no suit pending anymore. MERU CIVIL APPEAL E029 OF 2024 Page 5 of 7

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In view of the above it is my view once a suit has been withdrawn there is nothing that can be sought to be reinstated.” 16. In Bahati Shee Mwafundi -vs- Elijah Wambua (2015) eKLR, the court dealt with a notice of withdrawal of an appeal as in this case. The court held as follows: Order 25 envisages that once a party withdraws or discontinues a suit such a party may file another suit and such withdrawal or discontinuation cannot be raised as a defence in a subsequent suit. Under Order 25 once a suit is withdrawn or discontinued the court shall enter judgment for costs against the plaintiff. It follows that order 25 does not permit a party to withdraw a notice to withdraw or discontinue a suit. The filing of such a notice to withdraw or discontinue a suit terminates the suit and there cannot be, thereafter, a setting aside of the notice to withdraw or discontinue a suit. The following is what the learned author Stuart Sime in the book “A Practical Approach to Civil Procedure” 9th edition stated: MERU CIVIL APPEAL E029 OF 2024 Page 6 of 7

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“Notice of discontinuance takes effect and brings the proceedings to an end as against each defendant, on the date it is served upon the defendant.” 17. Guided by these cases, I find that this court cannot reinstate the appeal. The applicant may be at liberty to file a fresh appeal if leave can be obtained for doing so. That is a different question altogether. 18. In the upshot, the application is dismissed with no orders as to costs. Dated, signed, and delivered at Meru this 23 rd day of July 2026. H.M. NYAGA JUDGE MERU CIVIL APPEAL E029 OF 2024 Page 7 of 7

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