REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
HCCR MISC. APPLICATION NO. E007 OF 2025
ROBERT KORIATA.………………………………………1ST APPLICANT
ANTONY NAMPASO………………………………………2ND APPLICANT
FRANCIS KOROS………………………………………….3RD APPLICANT
SANKALE NABAALA………………………………. …...4TH APPLICANT
DOMINIC NCHOE………………………………………….5TH APPLICANT
JULIUS KISEMEI………………………………………….6TH APPLICANT
DENNIS MAKO…………………………………………….7TH APPLICANT
PURKEI KOONYI………………………………………….8TH APPLICANT
TUNAI NTOKOIWUAN………………………………...…...9TH APPLICANT
JOHN NCHOE…………………………………………...…10TH APPLICANT
JAMES NABAALA………………………………………..11TH APPLICANT
MEIPONYI NABAALA………………………...…………12TH APPLICANT
JOSEPH KOROS………………………………………….13TH APPLICANT
CHARLES NABAALA……………………………………14TH APPLICANT
FRANCIS TINKA…………………………………………15TH APPLICANT
MERCY NAMPASO……………………………………...16TH APPLICANT
-VERSUS
DIRECTOR OF CRIMINAL INVESTIGATIONS ……1ST RESPONDENT
1. INSPECTOR GENERAL OF POLICE………………...2ND RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS……3RD RESPONDENT
RULING
1. The Applicants initiated proceedings herein via Notice of Motion dated 20/2/2025 for conservatory orders and anticipatory bail against DCI, IG and the DPP.The application was in nature pf notice of notice of motion. Ordinarily the court ought to have been moved via a petition Vide Mutunga Rules and motion be anchored thereof however the court was moved via a miscellaneous application.
2. Interim orders were granted subsequently the Interested Parties sought to be enjoined in the matter inter alia and they were enjoined as Interested Parties.
3. Before the matter could be heard for both initial Applicants and the Interested Parties application, the initial Applicants sought to withdraw the application altogether as it had been overtaken by events.
4. The Respondents/Interested Parties opposed the move alternatively sought costs.
5. The court has gone through the record, and the parties addressed the court. The provisions of Order 25 Rule 1and 2 CPC Rules that provides for withdrawal of suits relied on the case of Beijing Industrial Designing & Research Institute v Lagoon Development Limited (2015) eKLR the Court of Appeal considered the import of that rule and stated that:
6. The above provision presents three clear scenarios regarding discontinuance of suits or withdrawal of claims. The first scenario arises where the suit has not been set down for hearing. In such an instance, the Plaintiff is at liberty, at any time, to discontinue the suit or to withdraw the claim or any part thereof. All that is required of the Plaintiff is to give notice in writing to that effect and serve it upon all the parties. In that scenario, the Plaintiff has an absolute right to withdraw his suit, which we agree cannot be curtailed. The second scenario arises where the suit has been set down for hearing. In such a case, the suit may be discontinued or the claim or any part thereof withdrawn by all the parties signing and filing a written consent. In this scenario, the right of the Plaintiff is circumscribed by the requirement that he must obtain the written consent of all the other parties. The last scenario arises where the suit has been set down for hearing, but all the parties have not reached any consent on discontinuation of the suit or withdrawal of the claim or any part thereof. In such eventuality, the Plaintiff must obtain leave of the court to discontinue the suit or to withdraw the claim or any part thereof, which is granted upon such terms as are just. In this scenario too, the Plaintiff’s right to discontinue his suit is circumscribed by the requirement that he must obtain leave of the court. That such leave is granted on terms suggests that it is not a mere formality.
7. Another legal framework is in Fair Administrative Action Rules, 2024. (Koome Rules); On Withdrawal of suits Rule 23, states that; At any time before judgment, the applicant may, by notice in writing served on all parties, discontinue the judicial review proceedings wholly or in part against all or any of the respondents.
8. Under the Mutunga Rules (specifically Rule 27), a petitioner in a Kenyan constitutional petition can withdraw their petition, but the process is not automatic. The petitioner must formally apply to the court, and the court, after hearing from all parties, may grant or deny the application. The court also has the discretion, for recorded reasons, to proceed with the hearing even if the petitioner wishes to withdraw.
9. Here's a more detailed breakdown:
10. Rule 27 of the Mutunga Rules: outlines the procedure for withdrawing a petition.
11. Application to Withdraw: A petitioner must apply to the court to withdraw their petition.
12. Notice to Parties: The petitioner must give notice to both the court and the respondent(s) about their intention to withdraw.
13. Court's Discretion: The court is not obligated to grant the withdrawal. It can hear from all parties and then decide whether to allow the withdrawal.
14. Public Interest Considerations: Constitutional petitions are often considered public interest litigation. The court may consider the public interest implications when deciding whether to allow a withdrawal.
15. Court’s Power to Continue: Even if the petitioner wants to withdraw, the court can, for reasons it records, choose to proceed with the hearing.
16. Reasons for Denial: The court might deny the withdrawal if it believes the petition raises significant public interest issues that should be resolved by the court. cannot restrain a party (s) from withdrawing their matter as they own the same.
17. The applicants lodged their misc app on their own volition not procedural, not a must under civil procedure rules nor a petition under the Mutunga Rules or even the Originating summons Rules 29024. Thus, they are not strictly governed by the cited provisions in above case scenarios. However, the court can deem them to lie within the realm of Mutunga Rules as the reliefs sought are with same framework of constitutional reliefs under the Bill of Rights which are enforced via Mutunga Rules.
18. Thus, the Court has Discretion and is not obligated to grant the withdrawal. It hears from all parties and then decide whether to allow the withdrawal. In the instant case the applicants recorded statements and bonded by the 1st Respondent thus their application being rendered spent or overtaken by events as per their advocate’s statement.
19. The court in that case would on its own motion have declared same spent and close the matter or allow withdrawal. The interested parties would not have suffered prejudice save for costs incurred. Therefore, allows them to terminate same via withdrawal and or termination of the same.
20. The court seeks the guidance of Section 27 of the Civil Procedure Code and authorities which have applied the same instances as the ones obtaining in this matter that costs follow the event. The Applicant seeks to terminate their case and since the Interested Parties have been admitted as parties, and that they have incurred expenses they are entitled to the costs. Thus, the court makes the orders;
i.The matter herein is marked withdrawn with costs to the interested parties.
ii.The bill of costs shall be lodged before the taxing master/or Deputy Registrar who will tax same in accordance with Schedule 6 of the Advocate Remuneration Order.
DATED AND DELIVERED IN NAROK THIS …. DAY OF ………... 2025.
…………………………………
CHARLES KARIUKI
JUDGE
IN THE HIGH COURT OF KENYA AT NAROK
HCCR MISC. APPLICATION NO. E007 OF 2025
ROBERT KORIATA.………………………………………1ST APPLICANT
ANTONY NAMPASO………………………………………2ND APPLICANT
FRANCIS KOROS………………………………………….3RD APPLICANT
SANKALE NABAALA………………………………. …...4TH APPLICANT
DOMINIC NCHOE………………………………………….5TH APPLICANT
JULIUS KISEMEI………………………………………….6TH APPLICANT
DENNIS MAKO…………………………………………….7TH APPLICANT
PURKEI KOONYI………………………………………….8TH APPLICANT
TUNAI NTOKOIWUAN………………………………...…...9TH APPLICANT
JOHN NCHOE…………………………………………...…10TH APPLICANT
JAMES NABAALA………………………………………..11TH APPLICANT
MEIPONYI NABAALA………………………...…………12TH APPLICANT
JOSEPH KOROS………………………………………….13TH APPLICANT
CHARLES NABAALA……………………………………14TH APPLICANT
FRANCIS TINKA…………………………………………15TH APPLICANT
MERCY NAMPASO……………………………………...16TH APPLICANT
-VERSUS
DIRECTOR OF CRIMINAL INVESTIGATIONS ……1ST RESPONDENT
1. INSPECTOR GENERAL OF POLICE………………...2ND RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS……3RD RESPONDENT
RULING
1. The Applicants initiated proceedings herein via Notice of Motion dated 20/2/2025 for conservatory orders and anticipatory bail against DCI, IG and the DPP.The application was in nature pf notice of notice of motion. Ordinarily the court ought to have been moved via a petition Vide Mutunga Rules and motion be anchored thereof however the court was moved via a miscellaneous application.
2. Interim orders were granted subsequently the Interested Parties sought to be enjoined in the matter inter alia and they were enjoined as Interested Parties.
3. Before the matter could be heard for both initial Applicants and the Interested Parties application, the initial Applicants sought to withdraw the application altogether as it had been overtaken by events.
4. The Respondents/Interested Parties opposed the move alternatively sought costs.
5. The court has gone through the record, and the parties addressed the court. The provisions of Order 25 Rule 1and 2 CPC Rules that provides for withdrawal of suits relied on the case of Beijing Industrial Designing & Research Institute v Lagoon Development Limited (2015) eKLR the Court of Appeal considered the import of that rule and stated that:
6. The above provision presents three clear scenarios regarding discontinuance of suits or withdrawal of claims. The first scenario arises where the suit has not been set down for hearing. In such an instance, the Plaintiff is at liberty, at any time, to discontinue the suit or to withdraw the claim or any part thereof. All that is required of the Plaintiff is to give notice in writing to that effect and serve it upon all the parties. In that scenario, the Plaintiff has an absolute right to withdraw his suit, which we agree cannot be curtailed. The second scenario arises where the suit has been set down for hearing. In such a case, the suit may be discontinued or the claim or any part thereof withdrawn by all the parties signing and filing a written consent. In this scenario, the right of the Plaintiff is circumscribed by the requirement that he must obtain the written consent of all the other parties. The last scenario arises where the suit has been set down for hearing, but all the parties have not reached any consent on discontinuation of the suit or withdrawal of the claim or any part thereof. In such eventuality, the Plaintiff must obtain leave of the court to discontinue the suit or to withdraw the claim or any part thereof, which is granted upon such terms as are just. In this scenario too, the Plaintiff’s right to discontinue his suit is circumscribed by the requirement that he must obtain leave of the court. That such leave is granted on terms suggests that it is not a mere formality.
7. Another legal framework is in Fair Administrative Action Rules, 2024. (Koome Rules); On Withdrawal of suits Rule 23, states that; At any time before judgment, the applicant may, by notice in writing served on all parties, discontinue the judicial review proceedings wholly or in part against all or any of the respondents.
8. Under the Mutunga Rules (specifically Rule 27), a petitioner in a Kenyan constitutional petition can withdraw their petition, but the process is not automatic. The petitioner must formally apply to the court, and the court, after hearing from all parties, may grant or deny the application. The court also has the discretion, for recorded reasons, to proceed with the hearing even if the petitioner wishes to withdraw.
9. Here's a more detailed breakdown:
10. Rule 27 of the Mutunga Rules: outlines the procedure for withdrawing a petition.
11. Application to Withdraw: A petitioner must apply to the court to withdraw their petition.
12. Notice to Parties: The petitioner must give notice to both the court and the respondent(s) about their intention to withdraw.
13. Court's Discretion: The court is not obligated to grant the withdrawal. It can hear from all parties and then decide whether to allow the withdrawal.
14. Public Interest Considerations: Constitutional petitions are often considered public interest litigation. The court may consider the public interest implications when deciding whether to allow a withdrawal.
15. Court’s Power to Continue: Even if the petitioner wants to withdraw, the court can, for reasons it records, choose to proceed with the hearing.
16. Reasons for Denial: The court might deny the withdrawal if it believes the petition raises significant public interest issues that should be resolved by the court. cannot restrain a party (s) from withdrawing their matter as they own the same.
17. The applicants lodged their misc app on their own volition not procedural, not a must under civil procedure rules nor a petition under the Mutunga Rules or even the Originating summons Rules 29024. Thus, they are not strictly governed by the cited provisions in above case scenarios. However, the court can deem them to lie within the realm of Mutunga Rules as the reliefs sought are with same framework of constitutional reliefs under the Bill of Rights which are enforced via Mutunga Rules.
18. Thus, the Court has Discretion and is not obligated to grant the withdrawal. It hears from all parties and then decide whether to allow the withdrawal. In the instant case the applicants recorded statements and bonded by the 1st Respondent thus their application being rendered spent or overtaken by events as per their advocate’s statement.
19. The court in that case would on its own motion have declared same spent and close the matter or allow withdrawal. The interested parties would not have suffered prejudice save for costs incurred. Therefore, allows them to terminate same via withdrawal and or termination of the same.
20. The court seeks the guidance of Section 27 of the Civil Procedure Code and authorities which have applied the same instances as the ones obtaining in this matter that costs follow the event. The Applicant seeks to terminate their case and since the Interested Parties have been admitted as parties, and that they have incurred expenses they are entitled to the costs. Thus, the court makes the orders;
i.The matter herein is marked withdrawn with costs to the interested parties.
ii.The bill of costs shall be lodged before the taxing master/or Deputy Registrar who will tax same in accordance with Schedule 6 of the Advocate Remuneration Order.
DATED AND DELIVERED IN NAROK THIS …. DAY OF ………... 2025.
…………………………………
CHARLES KARIUKI
JUDGE