'1. This court, per Ngaah, J, considered the petitioners’ application dated 22nd September 2025 and, being satisfied that the said application had merit, the court, on 23rd September 2025, issued conservatory orders pending the hearing of the application interpartes, or until further orders are made by it. The court fixed the matter for directions on 23rd October 2025.
2. On the 25th September 2025, the 11th and 12th interested parties filed an application of even date through which they sought to have the orders issued by the court on 23rd September 2025 lifted. This court, per Ngaah, J, upon considering the said application, ex exparte in the first instance, directed that it be served forthwith for directions on 23rd October 2025.
3. On 30th September 2025, the petitioners and the 11th and 12th interested parties entered into a consent vide which they agreed to have the applications dated 22nd September 2025 withdrawn, and for the orders that were issued pursuant to the said application discharged. The petitioners filed a notice of withdrawal of the application pursuant to Order 25, Rule 1 of the Civil Procedure Rules, 2010.
4. The 11th and 12th interested parties filed a notice of motion dated 30th September 2025 seeking to have the court lift, discharge, and or withdraw the orders it issued on 23rd and 26th September 2025, and for the matter to be mentioned on 23rd October 2025. The said application was premised on the grounds, inter alia, that the said orders were preventing the clearance of the goods that had already been shipped. It was averred that rice is a highly perishable commodity that would spoil when exposed to the hot, humid air of the port of Mombasa
5. It is that application that is before me today for determination. During its hearing, the parties, except for the 8th interested party, supported the application and indicated that they were not opposed. It is only the 8th interested party that is opposed to the withdrawal and the discharge of the conservatory orders on the grounds that withdrawal would be prejudicial to it. The 8th interested party’s counsel averred that no evidence that all the parties had been served with the application and the notice was tendered, and also on the ground that the requirements of Order 25, Rules 2(1), (2), and (3) of the Civil Procedure Rules had not been complied with.
6. I have considered the application and the submissions of the parties. I note that Article 50 of the Constitution grants every person the right to have any dispute that can be resolved by the application of law decided in a fair and public trial before a court of law or an impartial tribunal. My understanding of the said Constitutional provision is that every person has a right to access the court and to commence proceedings. As a corollary to that, and logically following, each person has the right to terminate those proceedings, subject to conditions that the court may impose in the interest of justice.
7. The foregoing is given effect by Order 25 of the Civil Procedure Rules, which permit withdrawal, discontinuance, and adjustment of suits. The way the said order is couched, to mind, bespeaks the fact that the decision to withdraw a suit is the prerogative of the party that approached the court for the redressal of his grievance, and that the court may not decline to allow the application for discontinuance or withdrawal of a suit or application. The court will obviously take into consideration the fact that parties sued may have incurred expenses and, in those cases, will award costs as appropriate.
8. In this case, the petitioners have withdrawn their application dated 22nd September 2025. I can see no reason why they must be compelled to pursue claims they have no desire to proceed with, or to benefit from orders they have no use for. To hold otherwise would, in my view, be very oppressive.
9. I am guided by the Supreme Court decision in the case of Robert Mutiso Lelli v Kenya Medical Training Centre, the Hon Attorney General and the Commissioner of Lands, where their Lordships and Ladyships held as follows at paragraph 8 (ii):-
“It therefore suffices to say that indeed a party’s liberty to withdraw a matter cannot be taken away, and this court has to allow a party who has approached the court to withdraw such a matter, if he deems so fit to do so. In effect, the application to withdraw the appeal stands.”
10. Under the circumstances, I allow the application to withdraw the notice of motion dated 22nd September 2025. The aforementioned application is hereby marked as withdrawn. Since the subsisting orders were issued pursuant to the said application, which has now been withdrawn, it follows that they cannot remain in effect. Court orders cannot exist in vacuo. The orders issued on 26th September 2025, on the other hand, pertained to an application seeking to discharge the orders issued on 23rd September 2025. The said orders are thus moot and of no effect.
11. The upshot of the foregoing is that the application dated 30th September 2025 has merit and is hereby allowed.
12. Regarding costs, I order that costs shall be in the cause.
13. Orders accordingly.
Dated and signed at Mombasa, the 1st day of October 2025. Delivered virtually through Microsoft TEAMS.
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2. On the 25th September 2025, the 11th and 12th interested parties filed an application of even date through which they sought to have the orders issued by the court on 23rd September 2025 lifted. This court, per Ngaah, J, upon considering the said application, ex exparte in the first instance, directed that it be served forthwith for directions on 23rd October 2025.
3. On 30th September 2025, the petitioners and the 11th and 12th interested parties entered into a consent vide which they agreed to have the applications dated 22nd September 2025 withdrawn, and for the orders that were issued pursuant to the said application discharged. The petitioners filed a notice of withdrawal of the application pursuant to Order 25, Rule 1 of the Civil Procedure Rules, 2010.
4. The 11th and 12th interested parties filed a notice of motion dated 30th September 2025 seeking to have the court lift, discharge, and or withdraw the orders it issued on 23rd and 26th September 2025, and for the matter to be mentioned on 23rd October 2025. The said application was premised on the grounds, inter alia, that the said orders were preventing the clearance of the goods that had already been shipped. It was averred that rice is a highly perishable commodity that would spoil when exposed to the hot, humid air of the port of Mombasa
5. It is that application that is before me today for determination. During its hearing, the parties, except for the 8th interested party, supported the application and indicated that they were not opposed. It is only the 8th interested party that is opposed to the withdrawal and the discharge of the conservatory orders on the grounds that withdrawal would be prejudicial to it. The 8th interested party’s counsel averred that no evidence that all the parties had been served with the application and the notice was tendered, and also on the ground that the requirements of Order 25, Rules 2(1), (2), and (3) of the Civil Procedure Rules had not been complied with.
6. I have considered the application and the submissions of the parties. I note that Article 50 of the Constitution grants every person the right to have any dispute that can be resolved by the application of law decided in a fair and public trial before a court of law or an impartial tribunal. My understanding of the said Constitutional provision is that every person has a right to access the court and to commence proceedings. As a corollary to that, and logically following, each person has the right to terminate those proceedings, subject to conditions that the court may impose in the interest of justice.
7. The foregoing is given effect by Order 25 of the Civil Procedure Rules, which permit withdrawal, discontinuance, and adjustment of suits. The way the said order is couched, to mind, bespeaks the fact that the decision to withdraw a suit is the prerogative of the party that approached the court for the redressal of his grievance, and that the court may not decline to allow the application for discontinuance or withdrawal of a suit or application. The court will obviously take into consideration the fact that parties sued may have incurred expenses and, in those cases, will award costs as appropriate.
8. In this case, the petitioners have withdrawn their application dated 22nd September 2025. I can see no reason why they must be compelled to pursue claims they have no desire to proceed with, or to benefit from orders they have no use for. To hold otherwise would, in my view, be very oppressive.
9. I am guided by the Supreme Court decision in the case of Robert Mutiso Lelli v Kenya Medical Training Centre, the Hon Attorney General and the Commissioner of Lands, where their Lordships and Ladyships held as follows at paragraph 8 (ii):-
“It therefore suffices to say that indeed a party’s liberty to withdraw a matter cannot be taken away, and this court has to allow a party who has approached the court to withdraw such a matter, if he deems so fit to do so. In effect, the application to withdraw the appeal stands.”
10. Under the circumstances, I allow the application to withdraw the notice of motion dated 22nd September 2025. The aforementioned application is hereby marked as withdrawn. Since the subsisting orders were issued pursuant to the said application, which has now been withdrawn, it follows that they cannot remain in effect. Court orders cannot exist in vacuo. The orders issued on 26th September 2025, on the other hand, pertained to an application seeking to discharge the orders issued on 23rd September 2025. The said orders are thus moot and of no effect.
11. The upshot of the foregoing is that the application dated 30th September 2025 has merit and is hereby allowed.
12. Regarding costs, I order that costs shall be in the cause.
13. Orders accordingly.
Dated and signed at Mombasa, the 1st day of October 2025. Delivered virtually through Microsoft TEAMS.
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