REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL SUIT NO. E008 OF 2024
SANLAM GENERAL INSURANCE LIMITED……………..APPLICANT
VERSUS
LOCAL PRODUCTIONS KENYA LIMITED…………….RESPONDENT
RULING
1. Vide a Motion application, the Applicant herein sought to set aside the orders issued on 14th July 2025, endorsing a notice of withdrawal of a suit dated 10th April 2025, and reinstate the same for hearing and determination.
2. The provision for withdrawal of suits is contained in Order 25 Rule 1 of the Civil Procedure Rules which provides as follows:
“At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action”.
3. Subject to the grounds on the face of the motion and the Supporting Affidavit sworn by Ochang’ J. Ajigo, Counsel of the Applicant, it was the Applicant who initiated the withdrawing of the suit vide application dated 30th November 2024, and the Notice of Withdrawal dated 10th April 2025. Counsel for the Applicant claims that the same was done erroneously.
4. In the case of Nicholas Kiptoo Arap Korir Salat – Versus - IEBC & 7 Others, Supreme Court Application No. 16 of 2014, the Supreme Court stated as follows:-
“a party’s right to withdraw a matter before the court cannot be taken away. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”
5. Additionally, in the case of Beijing Industrial Designing & Researching Institute – Versus - Lagoon Development Limited [2015] eKLR, the Court of Appeal stated as follows:-
“As a general proposition, the right of party to discontinue a suit or withdraw his claim cannot be questioned. There are many circumstances when a Plaintiff may legitimately wish to discontinue his suit or withdraw his claim. The Supreme Court of Nigeria in Abayomi Babatunde vs. Pan Atlantic Shipping & Transport Agencies Ltd & Others SC 154/2002 identified those circumstances to include where;
i. A Plaintiff realizes the weakness of his claim in the light of the defence put up by the Defendant.
ii. A Plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date,
iii.Where by abandoning the prosecution of the case, the Plaintiff could substantially reduce the high costs that would have otherwise followed after a full-scale but unsuccessful litigation, or
iv. A Plaintiff may possibly retain the right to relitigate the claim at a more auspicious time if necessary.”
6. From the Court record it is not in dispute that the suit herein was withdrawn by the Plaintiff’s Counsel, but the Applicant claims that the same was done erroneously. A discussion on the law relating to withdrawal of suits is apt and of importance to note is that the Rules that provide for the discontinuance or withdrawal of a suit do not provide for the revocation of withdrawal notice or the setting aside of the suit. And once a suit is discontinued in whichever manner howsoever, it ceases to exist.
7. A party cannot breathe life into it by whichever means, not even by setting aside the orders of withdrawal. This is because, once a suit is withdrawn there is no party that exists in relation to that suit. The Applicant/Plaintiff terminated the suit forever. By their act, the suit ceased to exist. Put in simple language, the suit came to an end. It does not matter the means by which the suit was withdrawn, that is to say, whether by notice of withdrawal, leave of Court or consent of the parties. Each of these three has one and the same effect: the suit, if withdrawn wholly as was in the instant case, ceased to be in existence.
8. On the balance the Applicant’s application is devoid of merit and I thus dismiss it with on orders as to costs.
It is so ordered Accordingly.
Delivered, Signed and Dated at Bungoma this 13th day of February 2026.
M.S. Shariff
Judge
In the presence of:
N/A for Applicant
N/A for Respondent
Peter Machoni - Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL SUIT NO. E008 OF 2024
SANLAM GENERAL INSURANCE LIMITED……………..APPLICANT
VERSUS
LOCAL PRODUCTIONS KENYA LIMITED…………….RESPONDENT
RULING
1. Vide a Motion application, the Applicant herein sought to set aside the orders issued on 14th July 2025, endorsing a notice of withdrawal of a suit dated 10th April 2025, and reinstate the same for hearing and determination.
2. The provision for withdrawal of suits is contained in Order 25 Rule 1 of the Civil Procedure Rules which provides as follows:
“At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action”.
3. Subject to the grounds on the face of the motion and the Supporting Affidavit sworn by Ochang’ J. Ajigo, Counsel of the Applicant, it was the Applicant who initiated the withdrawing of the suit vide application dated 30th November 2024, and the Notice of Withdrawal dated 10th April 2025. Counsel for the Applicant claims that the same was done erroneously.
4. In the case of Nicholas Kiptoo Arap Korir Salat – Versus - IEBC & 7 Others, Supreme Court Application No. 16 of 2014, the Supreme Court stated as follows:-
“a party’s right to withdraw a matter before the court cannot be taken away. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”
5. Additionally, in the case of Beijing Industrial Designing & Researching Institute – Versus - Lagoon Development Limited [2015] eKLR, the Court of Appeal stated as follows:-
“As a general proposition, the right of party to discontinue a suit or withdraw his claim cannot be questioned. There are many circumstances when a Plaintiff may legitimately wish to discontinue his suit or withdraw his claim. The Supreme Court of Nigeria in Abayomi Babatunde vs. Pan Atlantic Shipping & Transport Agencies Ltd & Others SC 154/2002 identified those circumstances to include where;
i. A Plaintiff realizes the weakness of his claim in the light of the defence put up by the Defendant.
ii. A Plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date,
iii.Where by abandoning the prosecution of the case, the Plaintiff could substantially reduce the high costs that would have otherwise followed after a full-scale but unsuccessful litigation, or
iv. A Plaintiff may possibly retain the right to relitigate the claim at a more auspicious time if necessary.”
6. From the Court record it is not in dispute that the suit herein was withdrawn by the Plaintiff’s Counsel, but the Applicant claims that the same was done erroneously. A discussion on the law relating to withdrawal of suits is apt and of importance to note is that the Rules that provide for the discontinuance or withdrawal of a suit do not provide for the revocation of withdrawal notice or the setting aside of the suit. And once a suit is discontinued in whichever manner howsoever, it ceases to exist.
7. A party cannot breathe life into it by whichever means, not even by setting aside the orders of withdrawal. This is because, once a suit is withdrawn there is no party that exists in relation to that suit. The Applicant/Plaintiff terminated the suit forever. By their act, the suit ceased to exist. Put in simple language, the suit came to an end. It does not matter the means by which the suit was withdrawn, that is to say, whether by notice of withdrawal, leave of Court or consent of the parties. Each of these three has one and the same effect: the suit, if withdrawn wholly as was in the instant case, ceased to be in existence.
8. On the balance the Applicant’s application is devoid of merit and I thus dismiss it with on orders as to costs.
It is so ordered Accordingly.
Delivered, Signed and Dated at Bungoma this 13th day of February 2026.
M.S. Shariff
Judge
In the presence of:
N/A for Applicant
N/A for Respondent
Peter Machoni - Court Assistant