1. Before this Court is the Respondents’ Notice of Motion dated 16th June 2026. The Motion was brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, and sought principally that the ex parte temporary injunction issued on 2nd June 2026 and extended on 16th June 2026 be discharged, vacated and/or set aside, and in the alternative that the Respondents be allowed to undertake enforcement measures in respect of portions of the Plaintiff’s developments found to encroach upon Plot No. Mombasa/Block XII/169.
2. The Motion was supported by the affidavit of Gilbert Nderitu sworn on 16th June 2026. In that affidavit, it was deponed that the injunction had been obtained without full and frank disclosure of material facts; that the Plaintiff relied on title documents for Plot No. Mombasa/Block XII/69 whereas the enforcement notice related to Plot No. Mombasa/Block XII/169; that the two parcels were separate and distinct; and that survey records showed encroachment onto Plot Nos. XII/169 and XII/168.
3. The application was also accompanied by a certificate of urgency stating that the continued subsistence of the injunction was obstructing implementation of an ongoing public project, delaying completion timelines, increasing project costs, and impeding the County Government in the discharge of its statutory planning and enforcement mandate.
4. Before the Motion could be heard on its merits, however, the Respondents filed a Notice of Withdrawal dated 3rd July 2026 expressly stating that they wholly withdrew their application dated 16th June 2026 as against the Plaintiff.
B. Withdrawal
5. That withdrawal has overtaken the Motion. The Court is therefore no longer called upon to decide whether the ex parte injunction ought to be discharged or whether the alternative enforcement relief ought to issue. The immediate task is to give procedural effect to the withdrawal and to determine the proper order as to costs.
6. Order 25 rule 1 of the Civil Procedure Rules permits withdrawal of a suit or claim by notice before hearing, while leaving the matter of costs within the Court’s control. A litigant who has set the judicial process in motion may, before determination, elect not to proceed with an interlocutory application, subject always to the Court’s authority over the consequences of that election.
7. The Notice of Withdrawal on record is clear and unequivocal. It leaves no room for doubt that the Respondents elected not to prosecute the Motion dated 16th June 2026. The Court will not keep on foot an interlocutory contest which its maker has consciously abandoned.
C. Costs
8. What remains is the question of costs. That question is not decorative. It is part of the architecture of justice in litigation, for litigation consumes time, effort and expense, and the Court must decide who, in fairness, should bear that burden.
9. Section 27 of the Civil Procedure Act vests the Court with discretion on costs, while preserving the general rule that costs follow the event unless the Court, for good reason, orders otherwise. The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] KESC 31 (KLR) affirmed that the award of costs is a matter of judicial discretion to be exercised on principle, fairness and the circumstances of each case, not on caprice.
10. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) also emphasized that procedural rules are handmaids of justice and are meant to aid, not to stifle, the fair administration of justice. And the Court of Appeal has recognized that although proceedings may be withdrawn, withdrawal does not necessarily erase the prejudice, inconvenience and expense already occasioned to the opposite party.
11. In the present case, the Respondents invoked the jurisdiction of the Court through the Motion dated 16th June 2026, but before the Court could adjudicate the dispute, they chose to retreat from that application. That retreat ended the contest, but it did not undo the trouble already visited upon the Plaintiff, who had to receive the Motion, consider the allegations made therein, and stand ready to meet them.
12. I do not find on the material before Court any special reason to deny the Plaintiff the ordinary consequence of success on a withdrawn application. The proposal in the Notice of Withdrawal that there be no orders as to costs cannot bind the Court. Costs are a judicial question. Parties may suggest; the Court must decide.
13. In the circumstances, the justice of the matter is served by allowing the withdrawal, but awarding the costs of the abandoned Motion to the Respondents as sought in your instructions. That is the order that best aligns with the draft structure supplied, the procedural posture of the case, and the principle that the party benefiting from the outcome should ordinarily receive costs unless there is good reason to depart.
D. Disposal Orders
14. Accordingly, the Court makes the following orders:
i. The Respondents’ Notice of Motion dated 16th June 2026 be and is hereby marked as withdrawn.
ii. The Respondents shall have the costs of the said application.
15. Orders accordingly.
Gillian - Court assistant
Sharia Nyange for the Plaintiff
Mohamed F Mohamed for the respondents