BEFORE HON JUSTICEJ.W.WANYONYI
INTRODUCTION:
1. This matter came up for mention on 23rd July2026 to confirm whether the petitioner had amended and served the amended petition as directed by the court.
2. When the matter was called out Mr. Odhiambo Advocate appearing for the first respondent was present while Mr. Osoro for the petitioner was absent.
3. At the request of Mr. Odhiambo, the matter was rescheduled to 21st September, 2026 to give Mr. Osoro an opportunity to comply as directed.
4. Later, before the court was done with virtual matters Mr. Osoro who was then online requested for today’s mention i.e 24th July 2026.
5. The court then directed service of a mention notice upon the concerned parties for 24th July 2026 at 8:30 AM for further directions.
6. The matter having been called out today, Mr. Osoro and Mr. Odhiambo representing their respective clients appeared while the AG ,though served, was absent.
7. Mr. Osoro Advocate for the petitioner then sought leave of the court to withdraw this Petition under Order 25 rule 1 of Civil Procedure Rules which allows withdrawal, and at the same time be granted leave to file a fresh petition.
8. Mr. Osoro goes further to state that the withdrawal is prompted by the issue of jurisdiction arising from the dismissal of a similar petition number E002 for what of jurisdiction and further that he had filed and served a notice dated 22nd July, 2026 to actualize the said withdrawal.
9. In response to the application, Mr. Odhiambo says that the notice of withdrawal was not brought to his attention but nonetheless he has no objection to the withdrawal. However, in his view order 25 rule 1 does not provide for leave to file a new suit .He goes on to state that they appeared in the matter, filed in an application to set aside the ex-parte proceedings, and thereafter raised a PO which prompted the intended withdrawal. He stated that that the AG who has filed appearance and a reply ,is also affected by the withdrawal. On that basis Mr. Odhiambo asked for costs.
10. In his rejoinder Osoro says that the AG was served and has not responded and that Mr. Odhiambo cannot purport to speak on behalf of the Attorney General.Mr Osoro is opposed to costs for the reason that Counsel for the County Government never participated fully in the proceedings .
DETERMINATION.
11. Having carefully read the pleadings filed herein, the relevant legal provisions and together with oral arguments by both counsels.
I proceed to frame the issues for determination as Here under:
a) Whether the application for withdrawal is proper.
b) Upon withdrawal, can the court grant leave to institute a fresh suit?
c) Whether the party withdrawing should pay costs.
12. On the first issue the provisions of Order 25 Rule 1 of the Civil Procedure Rules 2010 provide as follows;
1) At any time before the setting down of the 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 defense to any subsequent action.
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
13. The Court appreciates that under 25 under 1 rule and 2(1) the right of a party to withdraw a suit is unfettered by any conditions, and the party is considered to wield an absolute right to do so.
14. Order 25 Rule 2 states that, where a suit has been set down for hearing the Court may grant leave to discontinue his suit or withdraw any part of the claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just.
15. The case of Nicholas Kipkorir Salat Arap Salat versus IEBC & 7 Others Supreme Court Application No. 16 of 2014 the Supreme Court observed that the right of a party to withdraw a matter before court cannot be fettered and that all the court can do is to make an order for costs where it deems appropriate.
16. In the case of Morgan Air Cargo Ltd v Everest Enterprises Ltd [2014] eKLR the court noted that the right of a party to withdraw his claim cannot be questioned. The court appreciated there are varied circumstances where the Plaintiff may legitimately wish to withdraw his suit ,which include ,but are not limited to:
a) Weakness of the claim in the light of the defense.
b) Unavailability of crucial witness.
c) Abandoning prosecution so as to reduce cost.
d) The right to relitigate the calm at a more auspicious time if necessary
17. In this matter the petitioner has realized the weakness of his case as so stated ,and seeks to put his house in order just like the Biblical, King Hezekiah was warned by prophet Isaiah to make amends in his personal issues or face an impending divine wrath
18. The court however noted that at this point in time after withdrawal the suit is as good as dead and buried as it ceases to exist.
19. Justice Naikuni sitting at Kwale ELC while dealing with similar issues remarked thus on the consequences of withdrawal;
‘’ The existence of a suit can be equated to existence of light from a bulb; It only exists if there is an electric current and the gadget known as a bulb once either the bulb or the light ceases to be in contact the light goes out and in its place is darkness. The only way to get light again is that the bulb is to is to supply light to it [see BAWAN Limited v County Government of Kwale ELC Case Number 522 of 2011 {2024) KEELC 13488 (KLR]
20. Section 27 of the Civil Procedure Act stipulates that costs follow the event ,and shall be ,in the discretion of the court.
21. In the case of Limuru County Club and 6 others v Ross Wangui Mambo and 15 others 2019 KECA 101 KLR the Court of Appeal citing with approval of the decision of the Ugandan Supreme Court in Impressa Ing Fortunato Federici v Nabwire 2007 EA383 where it was held that the effect of the section 27 of the Civil Procedure Act is that a judge dealing with the issue of costs in any matter has absolute discretion to determine by whom and to what extent such costs are to be paid .
22. Good reasons that justify departure from the general rule that costs follow the event will vary from case to case (See Rai and 3 others v Rai and 4 others [2014] KESC] 31 [KLR]).
23. The exercise of Judicial discretion in awarding costs, a court of law must be guided by established practice to ensure fairness ,reasonableness and adherence to justice.
24. The dispute herein cannot be viewed as a private dispute but rather one that involves institutional oversight and public concern.
25. In this case awarding costs could undermine the constitutional directive under Article 159 [2][c] which emphasizes reconciliation as a core objective to dispute regulation.
26. I have looked at the originating petition ,the gravamen of the complaint is encroachment to the petitioner’s parcel and violation of the provisions of the Land Acquisition Act.
27. The petitioner also seeks for re-establishment of the boundary as well. The matter proceeded ex-parte and judgment was rendered for the petitioner, however same was set aside.
28. In allowing the application for setting aside, the court in its wisdom ordered each party to bear its own costs
29. Awarding costs in public interest litigation could deter future litigants from coming to court over violation of their rights by public or constitutional bodies thereby limiting judicial oversight on issues of public concern.
30. In the light of established principles on public interest litigation as can be gleaned from the case of Rai v Rai [supra] the court finds that a departure from the general rules is warranted in the circumstances.
31. In the Ugandan case of Kwizera v AG SC Constitutional Appeal number 1 of 2008] the court held that in PIL cases, costs should be awarded in rare cases, and, the underlying value is that the growth of constitutional jurisprudence will be stifled if potential Litigants knew that there is a possibility of being saddled with costs.
32. In Court of Appeal Civil Appeal, No 223 of 2018 between Frank Mugisha and 2 others V the Uganda Registration Service Bureau the court held that it would be unjust to penalize the appellant for accessing the court on issues dear to them. The court vacated an award of damages and ordered each party to bear its own costs. This was a Three-Judge bench decision.
33. Awarding costs , in my view, will be acting contrary to the spirit and tenor of Article 48 which gives the parties the rights to access justice, and in the same vein the state is enjoined to ensure access to justice to all persons and, if any fees that is required to be paid, be reasonable and shall not impede access to justice.
34. It should not be forgotten the Petitioner is duly represented by Counsel who was in control of the matter ,and at the onset ,advised her on where and how to file her pleadings.
35. Indeed, Counsel has taken the earliest opportunity to own up other than folding his hands until the Sword of Damocles lands on her.
36. It is trite that mistake of counsel ought not be visited upon an innocent litigant. The mistake is excusable.
37. In the upshot, this court comes to the following conclusion:
a) The application to withdraw the Petition in terms of the notice of withdrawal dated 22nd July ,2026 is hereby allowed and the Petition is deemed as withdrawn.
b) Leave to file a fresh petition is declined as filing of the same is within the province of the Applicant.
c) Each party to bear its own costs
38. It is so ordered.
RULING DELIVERED, DATED AT HOMABAY VIA TEAMS PLATFORM ON THIS 24TH DAY OF JULY ,2026
In the presence of:
1. Osoro Advocate for the Petitioner.
2. Odhiambo for the County Government.
3. C/A Awino.
HON. JUSTICE. J.W WANYONYI- JUDGE
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