Introduction
1. It is now a well-settled principle across many jurisdictions that a public interest litigation petition does not belong exclusively to the petitioner once it is placed before the court. Owing to its public character and broader interest, it seeks to vindicate that the petition cannot be withdrawn at the mere whim or election of the Petitioner. Withdrawal is subject to the leave of the Court, which must be satisfied that the discontinuance will not prejudice the public interest, undermine the administration of justice, or defeat the rights of the persons whose interests the litigation seeks to protect.
Background
2. By a Notice of Motion dated 20th April 2026, expressed to be pursuant to the 1A, 1B, 3A, AND 80 of the Civil Procedure Rules, Rule 27 of the Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practiced and Procedure Rules and Order 51 of the Civil Procedure Rules 2010, and Rule 64 of the Employment and Labour Relations Court [ Procedure] Rules, the Petitioner seeks;
a) This Honourable Court be pleased to grant leave to the Petitioner to wholly withdraw the petition dated 17th September 2025 in its entirety with no orders as to costs.
b) The costs of this application be provided for.
3. The application is premised on the grounds set out on the face thereof, and the supporting affidavit of PETER KIBELESI KUKUBO filed contemporaneously with the Notice of Motion.
4. The Petitioner submits that he initiated proceedings before this Court through a Petition dated 17th September 2025, seeking the protection of the Constitution of Kenya, along with the enjoyment of fundamental rights and freedoms that are secured and guaranteed by the Constitution. Additionally, calling for the upholding of the national values and principles of governance as stipulated under Article 10.
5. He states that, after further consideration, he no longer intends to pursue the Petition.
6. On 20th February 2025, he issued instructions to his advocates of record to formally withdraw this petition. The move is necessitated by pressing personal circumstances and unforeseen commitments, which have hampered his ability to participate effectively and sustain the prosecution of this petition through to its conclusion.
7. He further asserts that Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules expressly empowers a petitioner, upon due notice to the Court and the Respondent, to apply to withdraw a petition or, with the leave of the Court, to discontinue proceedings. Consequently, the present application is properly before this Court.
8. He asserts that the immediate application has been submitted sincerely and in the interest of justice, pursuant to his undeniable legal rights, and does not constitute an abuse of the court process or an admission of guilt.
9. He states further that he has not been coerced, intimidated, or induced by any party to withdraw this Petition.
The 1st Respondent’s Response.
10. The 1st Respondent opposes the application on the grounds set out in the affidavit sworn by its Chairman, DR. JAMLECK MUTURI JOHN. He contends that the Petitioner's Application to withdraw the instant Petition is a gross abuse of the Court's process, made in bad faith and with malice aforethought, with the sole intention of defeating the interests of justice. The Petitioner’s action, which comes immediately after an application for Conservatory Orders was dismissed in Petition E015 of 2025, is a testament.
11. The Petitioner has not placed forth plausible reasons to justify an order for leave for the withdrawal of the Petition. The Petitioner has failed to provide specifics of the alleged personal commitments that warrant the withdrawal of the Petition.
12. The Petitioner is contradicting himself when he alleges that the Petition was based on public interest considerations while at the same time raising issues of personal commitments.
13. It is further argued that it is unconscionable for the Petitioner to drag the 1st Respondent into Court for 12 months, waste scarce public judicial resources, and drain scarce public resources in defending the case, only for him to wake up one day and allege undisclosed personal commitments as a reason for withdrawing a public interest suit.
14. Further having been litigated for 12 months, it is only fair and just that the Court compensates the 1st Respondent by award of costs.
The Petitioner’s Written Submissions
15. The Petitioner submits that he has candidly approached the Court at an early stage, citing pressing personal circumstances and unforeseen commitments. The Application is based on Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules and on the inherent powers of this Court.
16. The 1st Respondent does not oppose the withdrawal, but insists that it should be conditional upon the Petitioner paying the costs of the Petition.
17. He submits that the 1st Respondent's objection is legally untenable, procedurally oppressive, and conceptually flawed. Compelling a petitioner to maintain a constitutional lawsuit against their express will is tantamount to forcing a person to sue, thereby violating fundamental tenets of party autonomy and constitutional liberty. The Petitioner’s decision to withdraw the Petition at this early stage is a responsible exercise of the legal process.
18. Contrary to the 1st Respondent’s assertion, no conservatory orders have been issued in this matter. Upon considering the application, the court did not issue a conservatory order. The court directed the case to be mentioned on 9th October 2025. The matter has been before the court only four (4) times, namely on 9th October 2025, 28th October 2025, 11th December 2026, and 29th January 2026, after which the Petitioner filed a Notice of withdrawal dated 20th February 2026.
19. Prior to the filing of the present petition, he was not aware of the existence of petition E015 of 2025, which was only brought to the petitioner's attention through the first respondent's submissions before this court.
20. Public interest litigation requires substantial resources, time, and emotional investment. If the Petitioner's personal circumstances change so that he can no longer effectively participate in and sustain the prosecution, it is in the interests of justice and the economy of the Court's time to allow him to withdraw early rather than leave a dormant matter on the cause list.
21. It is further submitted that, as stated in the application, allowing a withdrawal to conserve the Court's precious judicial resources is the antithesis of an abuse of process; it is a demonstration of professional and civic responsibility. The Petitioner's desire to withdraw is grounded in a realistic assessment of his current capacity to litigate. There is no evidence of malice or an attempt to defeat the ends of justice. Conversely, forcing an unwilling Petitioner to continue would be a far greater waste of judicial resources.The Constitution of Kenya [Fundamental Freedoms) Practice and Procedure Rules on cost provides. In Public Interest Litigations, an award of costs is at the court's discretion, depending on the circumstances of each case, but is seldom granted. To buttress this point, reliance has been placed on Rai & 3 Others v Rai & 4 Others [2014] KESC 31 [KLR].
22. It is also submitted that withdrawing this petition would not cause irreparable harm to the 1st Respondent, as it can be resolved by just concluding these proceedings. Imposing costs would constitute a punishment that would unfairly treat a public-spirited citizen like a regular commercial litigant, contrary to constitutional principles
23. The 1st Respondent contends that the proposed withdrawal of the Petition is not undertaken in good faith, is aimed at undermining the interests of justice, constitutes an abuse of the Court process, and, consequently, should be rejected.
24. It is further submitted that, in the circumstances of this matter, this Court ought to invoke Rule 27(3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Prcedure Rules, 2013, to continue to hear and determine the matter despite the Petitioner's wish to withdraw the same.
25. A careful consideration of the provision would reveal that withdrawal of a Constitutional Petition is not automatic and cannot occur merely because a Petitioner has filed a Notice of Withdrawal or expressed a wish to do so. The law expressly requires the Court's leave and further obligates the Court to hear all parties before determining whether to grant such leave.
26. Additionally, Rule 27(3) grants this Honourable Court unfettered dicretion to proceed with the hearing of a Petition notwithstanding the Petitioner's intention to withdraw the same.
27. The rationale underlying the aforementioned Rule is inherently apparent. Constitutional litigation, especially Public Interest Litigation, extends beyond the limited concerns of the individual litigant and involves broader constitutional principles, public accountability, and the fair administration of justice. To support these submissions, Counsel for the 1st Respondent relies on Harry John Paul Arigi & 2 others v Board, Kenya Ports Authority & 2 others [20161 KECA 141 (KLR) and Opiyo & 2 others v Kenya Revenue Authority & 2 others; Institute of Certified Public Accountants & another (Interested Parties) (commercial Petition E013 of 2025).
28. It is further argued that the present Application has not been brought in good faith and is part of a deliberate scheme to circumvent findings made by this Honourable Court at the interlocutory stage.
29. The Petitioner has not put forward any rational, objective, reasonable or justifiable reason to warrant the withdrawal of this Petition. He has only advanced a generalised and vague reason of personal commitments without specifics.
30. The Petitioner expressly instituted this matter as a Public Interest Litigation challenging the recruitment of the Secretary/Chief Executive Officer of the Teachers Service Commission. Having invoked public interest considerations as the basis of the Petition, the Petitioner cannot now retreat and seek refuge in alleged "personal commitments" whose particulars have not even been disclosed to the Court.
31. The 1st Respondent submits that a litigant who invokes the Court's constitutional jurisdiction under the guise of the public interest cannot subsequently treat Court proceedings as personal property to be abandoned at will. The present dispute concerns the recruitment of the Commission's Secretary/Chief Executive Officer, a critical constitutional officeholder who serves as the Accounting Officer and chief administrator of the Commission.
32. This is a proper case for the invocation of Rule 27[3]. This Court should proceed to decline the Petitioners’ request and proceed with the petition.
33. The primary obligation of this Court is to uphold the rule of law, safeguard the integrity of judicial processes, and guarantee the orderly administration of justice. Accordingly, this Court should reject the Application for withdrawal and proceed with the hearing and adjudication of the Petition on its substantive merits.
34. The general principle is that costs follow the event. The Petitioner has dragged the 1st Respondent through prolonged litigation for over one year, causing immense expenditure of public resources in defending the matter. The instant Application is itself an abuse of the Court process and has necessitated further litigation and expense for the 1st Respondent. The 1st Respondent, therefore, prays that the Application be dismissed with costs.
Determination and analysis.
35. Rule 27 of the Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, which provision has a constitutional underpinning, provides;
“(1) The petitioner may-
a) On notice to the court and to the respondent, apply to withdraw the petition; or
b) with the leave of the court, discontinue the proceedings.
(2) The Court shall, after hearing the parties to the proceedings, decide on the matter and determine the juridical effects of that decision.
(3) Despite sub-rule (2), the Court may, for reasons to be recorded, proceed with the hearing of the petition in spite of the wish of the petitioner to withdraw or discontinue the proceedings.
36. I have carefully considered the Petitioner’s application, the grounds set out on its face, the supporting affidavit, and the submissions by Counsel, and, with respect, have no hesitation in concluding that they do not appreciate this vital point, namely that an application to withdraw a petition that has been presented to and taken cognisance of by the Court as a Public Interest Litigation is never allowed as a matter of course without a satisfactory and convincing reason. This is what a careful reading of the above-stated provision reveals, and for the good purpose that will become clear shortly hereafter.
37. The Court cannot grant leave to withdraw merely because the petitioner has expressed a desire to withdraw the petition. The Applicant bears the burden of demonstrating good faith and of placing before the Court cogent reasons justifying the withdrawal. The Court must satisfy itself that the application is not intended to defeat the ends of justice, undermine public accountability, or prejudice the rights and interests of those who may benefit from the litigation.
38. The reason provided by the Petitioner for requesting the withdrawal of the Petition, in my opinion, does not constitute a reasonable or sufficient justification to warrant an order of withdrawal from this Court. It appears overly vague and general, lacking specific details.
39. I note with surprise that the Petitioner’s position, maintained from the outset through his submissions, is that, as a litigant, he has the autonomy to withdraw his petition and that the Court cannot compel a party who is not desirous of continuing with a petition to do so.
40. This position is in clear defiance of the provisions of Rule 27 cited above, the deliberate design of the provision, the jurisprudence on the subject, the withdrawal of public interest litigation petitions, and the rationale for the design of the provision.
41. It is not of the mark for this Court to point out that the provision stimulates tension between the Petitioner’s personal liberty to withdraw the petition they have filed and the Court’s responsibility to advance the collective good. If the rights of withdrawal in Public Interest Litigation were to be absolute, a variety of absurd consequences, including the “privatization” of public wrongs, would result through out-of-court settlements and abuse of the legal process for benefit or blackmail. Thus, the authority vested in courts to supervise, and sometimes prohibit, the withdrawal of petitions in the public interest.
42. Public Interest Litigation has a representative element of the Petitioner, which creates a relationship similar to a fiduciary duty between the Petitioner, the public and the court. Allowing a Petitioner to simply withdraw a significant Petition without justification would be a disservice to the public interest. Consequently, withdrawal from a dispute is not merely an act of private autonomy but rather a fiduciary-like relationship of public trust. The court’s refusal to allow withdrawal is an assertion that the judicial process is a public trust not to be turned off at the convenience of a particular person, especially once significant time and public money have been spent on such a case, and when it is clear that the bid to withdraw the petition would yield the negative consequences mentioned hereinabove. See also Harry John Paul Arigi & 2 others v Board, Kenya Ports Authority & 2 others [2016] KECA and Peter Makau Musyoka & Others v The Permanent Secretary, Ministry of Health & others [2025] KEHC 15023[KLR].
43. This Court is handling three petitions on the same subject matter, namely the constitutionality of the recruitment process for the Chief Executive Officer of the 1st Respondent and of Section 16[2] of the Teachers Service Commission Act. I am not hesitant to take judicial notice and state that some of the Petitions were filed after this Court dismissed the application for a conservatory order in the first Petition, Petition E 015 of 2025. The Petitions are copy-and-paste petitions. Only the names of the Petitioners have been changed. Now the Petitioners want to withdraw all the Petitions that were so initiated before this Court, after interim conservatory orders have been obtained in a Petition filed in the Kiambu High Court, after I declined the conservatory application. Yet the Petitioner has the confidence to urge this Court not to see his desire to withdraw this Petition as an abuse of the court process. I decline to see it from his perspective.
44. By reason of the foregoing premises, and for the public interest, public policy that would frown upon a deliberate abuse of the court process by litigants, and the integrity of the judiciary, this Court declines to allow withdrawal of the petition.
45. Considering the similarity between this petition and that in E 015 of 2025, this matter shall be mentioned on 2nd July 2026, when Judgment in the latter petition shall be delivered, for further directions.
Read, Signed and Delivered this 4th day of June 2026.