A. Introduction
1. Before the Court is the Plaintiff’s Notice of Motion dated 15 June 2026 brought under Orders 25 rules 1 and 2, Order 1 rule 10 and Order 51 rule 1 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law.
2. The application principally seeks orders that the suit be withdrawn against the 3rd Defendant, Hilal Maalim, the 4th Defendant, Hassan Musa, and the 5th Defendant, the County Government of Wajir, with no order as to costs. The Plaintiff further seeks leave to call the 4th Defendant as his witness and to substitute one of his listed witnesses, the late Habiba Ali Abbi, with Ahmed Abdi Mohamed.
3. The application is supported by the affidavit of Abdulrahman Mohamed, Advocate, sworn on 15 June 2026. The deponent avers that, upon further reflection and review of the conduct of the suit, the Plaintiff has determined that it is no longer necessary to pursue his claims against the 3rd, 4th and 5th Defendants in order to obtain complete and effectual relief. He further deposes that the intended withdrawal against the 4th Defendant is on the understanding that the latter will testify for the Plaintiff concerning the authenticity of land records and the circumstances surrounding the alleged creation of false or forged documents relating to Plot No. 6749.
4. The affidavit further states that the Plaintiff’s listed witness, Habiba Ali Abdi, has since died and that the Plaintiff consequently seeks to substitute her with Ahmed Abdi Mohamed, a resident and a neighbor of the Plaintiff at Maalim Salat Location, said to be familiar with the suit property and the events giving rise to the dispute.
5. Prior to filing the application, the Plaintiff had filed a Notice of Withdrawal dated 14 June 2026, purporting, pursuant to Order 25 rule 1 of the Civil Procedure Rules, 2010, to wholly withdraw the suit against the 3rd, 4th and 5th Defendants without an order as to costs.
6. The 3rd, 4th, and 5th Defendants do not oppose the application and did not participate in its disposal. The application is opposed by the 1st and 2nd Defendants through Grounds of Opposition dated 26/6/2026. They contend, among other things, that the application is misconceived, incompetent and an abuse of the Court process; that the County Government is a necessary and proper party; that the dispute concerns unregistered land whose records, allocation history, occupation records, maps and other material documents are in the custody of the County Government; and that withdrawal of the suit against the County Government would prejudice their ability to obtain disclosure of relevant records and effectively present their defence. They further contend that the intended withdrawal is designed to permit the Plaintiff to rely on the County Government’s officers and records while avoiding the legal consequences of the County Government remaining a party to the proceedings.
B. Parties’ submissions
7. Learned counsel for the Plaintiff submitted that Order 25 rule 1 entitles a plaintiff to withdraw a suit wholly or against any defendant at any stage before judgment, subject only to such terms as the Court may consider just in relation to costs.
8. Counsel relied on Priscillah Nyambura Njue v Geovhem Middle East Limited & Kenya Bureau of Standards and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others for the proposition that a party cannot ordinarily be compelled to continue prosecuting proceedings which he or she no longer wishes to pursue.
9. Counsel submitted that the withdrawal would occasion no prejudice to the 1st and 2nd Defendants since the substantive suit against them remains intact. He further argued that, if the 1st and 2nd Defendants considered the 3rd, 4th or 5th Defendants indispensable to their counterclaim, it was open to them to seek their joinder for purposes of that counterclaim.
10. Regarding the 4th Defendant, counsel submitted that his participation as a witness rather than as a party is the most efficient means of placing the relevant evidence before the Court. According to the Plaintiff, the 4th Defendant has direct knowledge of the authenticity of the land records and the circumstances surrounding the allocation of land in the land in dispute.
11. Learned counsel for the 1st and 2nd Defendants opposed the application. He submitted that the County Government of Wajir is a necessary and proper party because the dispute concerns unregistered land and the material records are in its custody.
12. Counsel argued that removing the County Government from the proceedings would impair the 1st and 2nd Defendants’ ability to obtain disclosure and effectively present their case. He further questioned how any ultimate orders relating to the disputed land could be implemented if the County Government was no longer a party.
13. Counsel also submitted that the 3rd and 4th Defendants are junior officers of the County Government who cannot represent it and were not present when the original allocation of the land allegedly occurred.
14. In reply, counsel for the Plaintiff maintained that both the Plaintiff and the 1st and 2nd Defendants rely upon documents authored by the 3rd and 4th Defendants. The respective oral arguments are on record.
C. Issues for determination
15. Having considered the application, the supporting affidavit, the Grounds of Opposition and the parties’ submissions, the following issues arise for determination:
i) whether the Plaintiff has an absolute right to withdraw the suit against the 3rd, 4th and 5th Defendants at the present stage of the proceedings;
ii) whether the proposed withdrawal would occasion prejudice to the 1st and 2nd Defendants sufficient to justify its refusal;
iii) whether the 4th Defendant may be introduced as a Plaintiff’s witness and the late Habiba Ali Abbi substituted with Ahmed Abdi Mohamed; and
iv) what orders should be made as to costs.
D. Whether the Right of withdrawal is Absolute
16. The starting point is Order 25 of the Civil Procedure Rules, 2010. The law undoubtedly recognizes a plaintiff’s autonomy over the prosecution of his or her claim. As a general proposition, a litigant should not ordinarily be compelled to continue pursuing a cause of action which he or she has elected to abandon.
17. That proposition, however, requires an important qualification. Order 25 draws a distinction between withdrawal before a suit has been set down for hearing and withdrawal after that procedural stage has been reached.
18. Under Order 25 rule 1, a plaintiff may, before the suit is set down for hearing, discontinue the suit against all or any of the defendants by filing and serving a notice of withdrawal.
19. Once the suit has been set down for hearing, however, the matter falls within Order 25 rule 2. At that stage, discontinuance or withdrawal is no longer a purely unilateral procedural act. It is subject to the control of the Court and to such terms as the Court considers just.
20. In the present case, the suit had already been set down for hearing. The Plaintiff therefore could not, by the Notice dated 14 June 2026 alone, automatically terminate the proceedings against the 3rd, 4th and 5th Defendants under Order 25 rule 1.
21. The subsequent filing of the Notice of Motion was therefore procedurally necessary. The question before the Court is consequently not whether the Plaintiff’s unilateral Notice of Withdrawal must simply be recorded, but whether, in the exercise of the discretion conferred by Order 25 rule 2, the proposed withdrawal should be permitted and, if so, upon what terms.
22. I therefore do not accept, without qualification, the Plaintiff’s submission that his right of withdrawal is absolute at the present stage of the proceedings. The authorities cited for the general proposition that a litigant may withdraw proceedings do not remove the express distinction drawn by Order 25 between a suit that has not been set down for hearing and one which has.
23. The Court must, nevertheless, be slow to compel a plaintiff to continue prosecuting a claim which he has consciously abandoned. The discretion under Order 25 rule 2 is not a licence to force an unwilling plaintiff to pursue substantive relief against a defendant. Its principal purpose is to ensure that discontinuance does not occasion injustice to other parties, defeat accrued rights, undermine a counterclaim, constitute an abuse of process or otherwise impair the proper administration of justice.
E. Whether the withdrawal should be refused
24. The 1st and 2nd Defendants’ objection is not frivolous. The suit concerns land said to be unregistered, and the authenticity, history, and provenance of allocation records appear to lie at the heart of the dispute. The supporting affidavit sworn by Abdulrahman Mohamed, Advocate, itself acknowledges the centrality of records held at the Wajir County Lands Registry and states that the proposed evidence of the 4th Defendant concerns the authenticity of those records and the circumstances surrounding the alleged creation of false or forged documents.
25. There is therefore some force in the contention that the County Government is not a stranger to the factual controversy. Indeed, the Plaintiff originally joined the 3rd, 4th, and 5th Defendants on account of their alleged roles in the creation of false and forged documents relating to the suit property.
26. The Court must, however, distinguish between a party who possesses relevant evidence and a party whose continued presence is legally indispensable to the adjudication of the claims that remain before the Court.
27. The mere fact that a person or public body possesses material documents or employs persons with relevant knowledge does not, without more, render that person an indispensable party. The Civil Procedure Rules and the Evidence Act provide mechanisms for the production of documents and attendance of witnesses, including summonses to witnesses and orders for production or discovery.
28. More importantly, the Plaintiff cannot properly be compelled to seek relief against the 3rd, 4th and 5th Defendants merely because their continued presence may be convenient to the remaining Defendants.
29. If the 1st and 2nd Defendants seek affirmative relief against any of the parties proposed to be withdrawn, or if the effective determination of their counterclaim legally requires the presence of any such party, it remains open to them to move the Court for appropriate joinder or other consequential orders. A plaintiff’s withdrawal of his own claim does not extinguish an independent counterclaim or deprive a defendant of the right to seek joinder of a party genuinely necessary to the adjudication of that counterclaim.
30. The objection based upon access to documents is equally capable of being addressed by less restrictive means than compelling the Plaintiff to maintain causes of action he has abandoned. The 1st and 2nd Defendants remain at liberty to seek discovery, production, summonses to witnesses, or such other evidential orders as may be available in law upon the disposing orders to be given by the court.
31. The Court is therefore not persuaded that the prejudice alleged is of such a nature that it can only be cured by refusing the withdrawal altogether.
32. I am also not satisfied, on the material presently before the Court, that the application has been shown to constitute an abuse of process. The timing and structure of the proposed withdrawal, particularly the simultaneous attempt to convert the 4th Defendant into the Plaintiff’s witness, legitimately call for scrutiny. They do not, however, without further evidence, establish collusion or an improper purpose.
33. A defendant who ceases to be a party is not thereby immunized from cross-examination. If called as a witness, the former 4th Defendant’s evidence will be subject to the ordinary rules of evidence and to full cross-examination by the remaining Defendants. His previous status as a party and any pleadings, statements or documents attributable to him may be dealt with in accordance with the applicable rules of evidence.
34. In those circumstances, the Court finds no sufficient basis for compelling the Plaintiff to continue pursuing substantive claims against the 3rd, 4th and 5th Defendants.
F. Introduction and substitution of witnesses
35. The Plaintiff also seeks leave to call the 4th Defendant, Hassan Musa, as a witness. The supporting affidavit states that he is an employee of the County Government of Wajir at the County Lands Registry and has direct knowledge concerning the authenticity of the land records and the circumstances surrounding the alleged false or forged allocation letter dated 5 October 2007 relating to Plot No. 6749.
36. The Court sees no legal impediment to a former party being called as a witness once the claim against him has been withdrawn. The crucial considerations are relevance, procedural fairness and the absence of trial by ambush.
37. The Plaintiff, in his motion, also seeks to replace the late Habiba Ali Abbi with Ahmed Abdi Mohamed. The death of a listed witness is plainly a circumstance beyond the Plaintiff’s control. The affidavit explains the nature of the evidence proposed to be given by the replacement witness and states that his witness statement has been annexed to the supporting affidavit as “AM2”.
38. The 1st and 2nd Defendants did not demonstrate any prejudice incapable of cure by being afforded adequate time to consider the new or supplementary witness statements and, if necessary, file consequential documents or statements.
39. The Court is consequently satisfied that the witness-related prayers should be allowed, subject to terms designed to secure procedural fairness and equality.
G. Costs
40. The Plaintiff seeks withdrawal without an order as to costs. A party who has been brought to court and is thereafter released from the proceedings is ordinarily entitled to costs unless sufficient reason exists to depart from the general rule.
41. The supporting affidavit states that the Plaintiff originally sued the 3rd, 4th, and 5th Defendants for their alleged involvement in the creation of false or forged documents, but later reconsidered and concluded that their presence was no longer necessary.
42. The Plaintiff cannot unilaterally withdraw his claims and simultaneously deprive the withdrawn Defendants of costs already incurred. The appropriate order is therefore that the costs occasioned by the withdrawal shall be borne by the Plaintiff.
H. Disposition
44. As a result, the Notice of Motion dated 15 June 2026 succeeds substantially. The Court makes the following orders:
i) The Plaintiff is granted leave to withdraw and discontinue the suit against the 3rd Defendant, Hilal Maalim; the 4th Defendant, Hassan Musa; and the 5th Defendant, the County Government of Wajir.
ii) The suit against the 3rd, 4th, and 5th Defendants is accordingly marked as withdrawn.
iii) The withdrawal shall not affect any subsisting counterclaim or prevent the 1st and 2nd Defendants from applying, if legally necessary, for the joinder of any person against whom they seek substantive relief.
iv) The Plaintiff is granted leave to call Hassan Musa, formerly the 4th Defendant, as a witness, subject to service upon all remaining parties of his witness statement and any documents to be relied upon within fourteen (14) days of this Ruling.
v) The Plaintiff is granted leave to substitute the late Habiba Ali Abbi with Ahmed Abdi Mohamed as a witness.
vi) The 1st and 2nd Defendants shall, if necessary, be at liberty to file and serve any supplementary witness statement or documents strictly arising from the introduction of the said witnesses within fourteen (14) days of service.
vii) The Plaintiff shall bear the costs of the withdrawn proceedings incurred by the 3rd, 4th and 5th Defendants.
viii) The costs of the Notice of Motion as between the Plaintiff and the 1st and 2nd Defendants shall be in the cause.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT GARISSA THIS 8TH DAY OF JULY 2026.
DR. OMONDI R. OWINO, FCIArb
ELC JUDGE
DELIVERED VIRTUALLY ON THE TEAMS PLATFORM
IN THE PRESENCE OF:
MOHAMED FOR THE PLAINTIFF
MR MUSYOKA FOR 1ST AND 2ND DEFENDANTS
MR KINARO FOR THE 3RD AND 4TH DEFENDANTS
SAKA H/B FOR OMWANZA FOR 5TH DEFENDANT
MR DABAR MOHAMED COURT ASSISTANT