2. The question now left for determination is not the merit of the application. That question has been overtaken by the withdrawal. What remains is the formal order of the Court marking the application as withdrawn and determining who should bear the costs attendant to that withdrawal.
3. The power of a party to withdraw a suit or an application is anchored in Order 25 rule 1 of the Civil Procedure Rules. The rule permits discontinuance by notice, and further contemplates the incidence of costs upon such withdrawal, including judgment for costs upon request by the opposite party.
4. The law on costs is equally plain. Costs are in the discretion of the Court, but that discretion is never at large. It is a judicial discretion to be exercised on reason, not whim; on settled principle, not private inclination. The general rule remains, that costs follow the event unless the Court, for good reason, orders otherwise.
5. That principle has received repeated affirmation in Kenyan superior courts. The Supreme Court has underscored that an award of costs is a matter of judicial discretion to be exercised in a manner that meets the ends of justice and the circumstances of the case, while the Court of Appeal and the High Court have consistently held that where proceedings are withdrawn, the opposite party will ordinarily be entitled to costs unless there exists sufficient cause to depart from the general rule.
6. A withdrawal is, in truth, an end to the particular contest. It removes the application from the field of battle. But it does not wash away the labour already spent. The party brought to Court has had to instruct counsel, study the papers, and stand ready to answer the case. Justice would limp if such a party were turned away empty-handed without good cause.
7. In the present matter, the application dated 15th June 2026 was placed before the Court and the Respondents were thereby drawn into the arena of litigation. The Notice of Withdrawal did not arise from any concession extracted by the Plaintiff from the Respondents, nor is there any material on record showing misconduct, delay, concealment, or other equitable consideration that would justify depriving the Respondents of costs.
8. The mere fact that the Notice of Withdrawal proposed that there be no order as to costs could not, by itself, bind the Court. Costs remain a judicial question. Parties may propose; the Court must dispose. And where the event has fallen in favour of the Respondents by reason of the abandonment of the application, the ordinary consequence should follow unless justice plainly points in another direction.
9. This Court finds no such special reason here. The fair order, and the just order, is that the application be marked as withdrawn with costs to the Respondents. That order accords with the structure of Order 25, the general principle that costs follow the event, and the wider duty of the Court to ensure that litigation is not pursued or abandoned at the expense of an innocent opposing party without consequence.
10. In the result, the Court makes the following orders:
a. The Plaintiff’s Notice of Motion dated 15th June 2026 is hereby marked as withdrawn.
b. The costs of the withdrawn application are awarded to the Respondents.
11. Orders accordingly.
Gillian - Court assistant
Sharia Nyange for the Plaintiff
Mohamed F Mohamed for the respondents