NEHEMIAH KIPLAGAT TUITOEK VS CHARIT KIRWA KOGO AND SUSANA TARKWEN

'

1. In his application by way of Notice of motion dated 29^th July 2025, the applicant through Lagat Joshua and Comapany Advocates, sought, inter alia, an injunction against the respondents in respect of the suit land reference number Nandi/ Nandi/ Kabulonik/596.
2. Notably, the application was not served on the respondent.
3. By a notice of withdrawal dated 11^th September 2025, the applicant is seeking to withdraw the application.
4. In that regard, is the notice of withdrawal meritorious?
5. The application has not been responded to as there is no evidence on record that the same has been served.
6. It is well settled that in an application of this nature, where there is no evidence of service, the scales tilt in favour of the applicant. That therefore, the matter be deemed as withdrawn; see Karurie-vs-Kamau {2025} KECA 366 (KLR).
7. Further, it must be noted that the withdrawal sought by the applicant herein is within the discretion of this court; see also M & E Consulting Engineers Limited-vs-Lake Basin Development Authority and another (2015) eKLR.
8. In the foregone, the notice of withdrawal dated 11^th September 2025 is merited.
9. Thus, the application dated 29^th July 2025 is hereby marked as withdrawn.
10. In the circumstances, there shall be no orders as to costs being guided by the case of Jasbir Singh Rai & 3 others-vs-Tarlochan Rai & 4 others (2014) eKLR and the proviso to section 27 (1) of the Civil Procedure Act Chapter 21 Laws of Kenya.
11. It is so ordered.

DATED and DELIVERED VIRTUALLY this 16^th day of SEPTEMBER 2025

G M A ONGONDO

JUDGE

'