'1. Warda Said Aboudsalam and Saida Aboud Msalam filed the summons for revocation of the grant dated 6th October 2025, seeking to have the grant issued herein revoked. The summons was expressed to have been brought for and on behalf of one hundred and sixty residents of Plot No 232/XVII, Plot No 219/XVII, and Plot No 1068/XVII. The said residents, as far as I can see, did not sign a consent form authorizing the two applicants to represent them.
2. Vide notice of withdrawal dated 14th October 2025, the two applicants evinced an intention to withdraw the summons for revocation of the grant dated 6th October 2025 and the notice of motion dated 7th October 2015. It was stated that the withdrawal was pursuant to Order 25, Rule 1, of the Civil Procedure Rules, as read with the Probate and Administration Rules.
3. The summons came for hearing on 27th October 2025. On the said date, the applicants appeared and addressed the court, stating that they no longer wished to pursue the two applications, and praying that any interim orders in place be discharged. The applicants’ oral application to withdraw from the matter was opposed by Mr Egunza, their previous advocate. Mr Egunza urged that, as the applicants brought the application in a representative capacity, they could not withdraw it without the consent of the people they represent. He argued that the consent of the 160 people Warda and Saida represented had not been obtained. That being the case, the purported withdrawal was null and void and of no effect.
4. This court heard the submission of the parties. Warda and Saida prayed that their application be marked as withdrawn and that the interim orders be discharged. Ms Mulongo, holding brief for Mr Obinju, for the respondent/executor, agreed with them.
5. On the other hand, Mr Egunza opposed the withdrawal. He urged that the purported withdrawal prejudiced other parties. He prayed that the purported withdrawal was ineffective. Mr Egunza''s submissions were supported by Mrs Akwana, who acts for the applicants in a separate summons for the revocation of the grant.
6. The question before me is whether there is, in fact, a representative application before the court, and whether the withdrawal rendered further prosecution of the Summons dated 6th October 2025 untenable.
7. Order 1 Rule 8 of the Civil Procedure Rules permits the filing of a representative suit. It provides that:-
“(1)Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them; (2)The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct; and
(3)Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.”
8. It would appear to me as mandatory that a party purporting to represent others in a representative suit must annex written authority of those he claims to represent. Order 1 Rule 13 of the Civil Procedure Rules provides that:-
“(1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding; and
(2)The authority shall be in writing, signed by the party giving it, and shall be filed in the case.”
9. In the case of KAHINDI KATANA MWANGO & ANOTHER V CANON ASSURANCE K. LTD [2013] KEHC 4064 (KLR), the court held that:-
“17. Indeed, Order 4 Rule 4 of the Civil Procedure Rules requires that where the Plaintiff sues in a representative capacity, the Plaint shall state the capacity in which he sues. The Plaintiff''s Originating Summons does not state whether the Jeuri Community Based Organization, through the two Plaintiffs, suing on behalf of 41 others is a representative suit or not. That, in my view, renders the suit incurably defective.
18. As at the time of filing the suit, the Plaintiffs were under an obligation to show the written authority entitling them to sue on behalf of “JEURI COMMUNITY BASED ORGANISATION” or on behalf of 41 others in accordance with the provisions of Order 1 Rule 13 of the Civil Procedure Rules, 2010. The Applicant cannot just annex a list of the inhabitants on whose behalf he purports to be acting, which is not signed by any of the persons listed therein.”
10. There is no written consent of the 160 alleged parties. In the circumstances, I am unable to agree that this is a representative suit.
11. Having made the above determination, I must now decide if the two applications can withdraw the applicants they had filed earlier.
12. In my view, Order 25 Rule 2 (2) of the Civil Procedure Rule permits a party, where the suit or application has been set down for hearing, to withdraw it with the leave of the court, subject to an order as to costs.
13. Both Said and Warda have filed a notice of withdrawal. This court cannot force them to prosecute a suit or an application they no longer want. This court cannot force a party to pursue a claim against her will any more than it compels married parties to continue living together. In the circumstances, I allow the notice of withdrawal of the applications dated 6th and 7th October 2025. The said applications are hereby marked as withdrawn. The applications having been withdrawn, it follows that the subsisting interim orders in respect of the said applications are discharged.
14. Regarding the alleged parties, they are at liberty to approach the court if, at all, they remain aggrieved.
15. Costs follow the event, I award the petitioner/executor the costs of the withdrawn applications.
16. It is so ordered.
Dated and signed in Mombasa, this 28th day of October 2025. Delivered virtually through Microsoft TEAMS.
'
2. Vide notice of withdrawal dated 14th October 2025, the two applicants evinced an intention to withdraw the summons for revocation of the grant dated 6th October 2025 and the notice of motion dated 7th October 2015. It was stated that the withdrawal was pursuant to Order 25, Rule 1, of the Civil Procedure Rules, as read with the Probate and Administration Rules.
3. The summons came for hearing on 27th October 2025. On the said date, the applicants appeared and addressed the court, stating that they no longer wished to pursue the two applications, and praying that any interim orders in place be discharged. The applicants’ oral application to withdraw from the matter was opposed by Mr Egunza, their previous advocate. Mr Egunza urged that, as the applicants brought the application in a representative capacity, they could not withdraw it without the consent of the people they represent. He argued that the consent of the 160 people Warda and Saida represented had not been obtained. That being the case, the purported withdrawal was null and void and of no effect.
4. This court heard the submission of the parties. Warda and Saida prayed that their application be marked as withdrawn and that the interim orders be discharged. Ms Mulongo, holding brief for Mr Obinju, for the respondent/executor, agreed with them.
5. On the other hand, Mr Egunza opposed the withdrawal. He urged that the purported withdrawal prejudiced other parties. He prayed that the purported withdrawal was ineffective. Mr Egunza''s submissions were supported by Mrs Akwana, who acts for the applicants in a separate summons for the revocation of the grant.
6. The question before me is whether there is, in fact, a representative application before the court, and whether the withdrawal rendered further prosecution of the Summons dated 6th October 2025 untenable.
7. Order 1 Rule 8 of the Civil Procedure Rules permits the filing of a representative suit. It provides that:-
“(1)Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them; (2)The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct; and
(3)Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.”
8. It would appear to me as mandatory that a party purporting to represent others in a representative suit must annex written authority of those he claims to represent. Order 1 Rule 13 of the Civil Procedure Rules provides that:-
“(1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding; and
(2)The authority shall be in writing, signed by the party giving it, and shall be filed in the case.”
9. In the case of KAHINDI KATANA MWANGO & ANOTHER V CANON ASSURANCE K. LTD [2013] KEHC 4064 (KLR), the court held that:-
“17. Indeed, Order 4 Rule 4 of the Civil Procedure Rules requires that where the Plaintiff sues in a representative capacity, the Plaint shall state the capacity in which he sues. The Plaintiff''s Originating Summons does not state whether the Jeuri Community Based Organization, through the two Plaintiffs, suing on behalf of 41 others is a representative suit or not. That, in my view, renders the suit incurably defective.
18. As at the time of filing the suit, the Plaintiffs were under an obligation to show the written authority entitling them to sue on behalf of “JEURI COMMUNITY BASED ORGANISATION” or on behalf of 41 others in accordance with the provisions of Order 1 Rule 13 of the Civil Procedure Rules, 2010. The Applicant cannot just annex a list of the inhabitants on whose behalf he purports to be acting, which is not signed by any of the persons listed therein.”
10. There is no written consent of the 160 alleged parties. In the circumstances, I am unable to agree that this is a representative suit.
11. Having made the above determination, I must now decide if the two applications can withdraw the applicants they had filed earlier.
12. In my view, Order 25 Rule 2 (2) of the Civil Procedure Rule permits a party, where the suit or application has been set down for hearing, to withdraw it with the leave of the court, subject to an order as to costs.
13. Both Said and Warda have filed a notice of withdrawal. This court cannot force them to prosecute a suit or an application they no longer want. This court cannot force a party to pursue a claim against her will any more than it compels married parties to continue living together. In the circumstances, I allow the notice of withdrawal of the applications dated 6th and 7th October 2025. The said applications are hereby marked as withdrawn. The applications having been withdrawn, it follows that the subsisting interim orders in respect of the said applications are discharged.
14. Regarding the alleged parties, they are at liberty to approach the court if, at all, they remain aggrieved.
15. Costs follow the event, I award the petitioner/executor the costs of the withdrawn applications.
16. It is so ordered.
Dated and signed in Mombasa, this 28th day of October 2025. Delivered virtually through Microsoft TEAMS.
'