Achieng & 5 others v Attorney General [2024] KEELC 5575 (KLR)

Achieng & 5 others v Attorney General (Environment & Land Case 2028 of 2007) [2024] KEELC 5575 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KEELC 5575 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 2028 of 2007

LN Mbugua, J

July 25, 2024

Between

Benta Kalaria Achieng

1st Plaintiff

Everlyne Atieno Ochieng

2nd Plaintiff

Cecilia Wanjiru Gichuru

3rd Plaintiff

Mary Ndunge Mutuku

4th Plaintiff

Wilson Mutumba Women Group (Duly Registered as a Self-Help Group With Membership of 2,907 Women)

5th Plaintiff

Isaac Mburu Njuguna (Suing on His Behalf and on Behalf of 700 Members of Wilson Mutumba Women Group)

6th Plaintiff

and

The Attorney General

Defendant

Ruling

1. This suit came up for hearing on 16. 5.2024 when counsel for the 6th plaintiff addressed the court as follows; “I have instructions to have the suit of the 6th plaintiff withdrawn and there is a notice to that effect dated 15. 5.2024”.

2. In opposition to the said withdrawal, Counsel for the 1st Plaintiff submitted that it would be proper for the Plaintiff to provide a list and consent of the people he was withdrawing suit on behalf of as well as avail a list of particulars of other officials of the group. He pointed out that the membership of the entity known as Wilson Mitumba Women Group is in issue and the 6th Plaintiff is not a bonafide official of the said group.

3. Counsel for the 2nd, 3rd and 5th Plaintiffs also opposed the withdrawal and adopted the submissions of counsel for the 1st Plaintiff.

4. Counsel for the 4th Plaintiff contended that in this court’s ruling of 9. 3.2023, the 6th Plaintiff ceased to be a party to these proceedings since the amended plaint that sought to enjoin him was expunged.

5. He also argued that Order 1 Rule 14 of the Civil Procedure Rules is clear that in case of a representative suit being enjoined /withdrawing from a suit has to be by consent signed and filed in court. He avered that the Notice of withdrawal ought to be ignored as the 6th Plaintiff is an imposter with no locus in the matter.

6. On his part, counsel for the Defendant submits that the Plaintiffs are joined at the hip such that the whole suit must go if the 6th Plaintiff’s case goes. He supports the argument by counsel for the 4th Plaintiff that the notice has no consequence due to this court’s orders of 9. 3.2023.

7. In rejoinder, counsel for the 6th Plaintiff urged the court to make a finding that the 6th Plaintiff was not even a party in the 1st place and that in any case, under Order 25 (2) (2) of the Civil Procedure Rules, no consent to withdraw is required.

8. The issue for determination is whether the 6th Plaintiff’s Notice of Withdrawal of suit dated 15. 5.2024 is consequential in this matter. This court stated as follows at paragraph 8 of its ruling of 9. 3.2023;“On the issue of the amended plaint dated 10. 3.2020 of the 6th Plaintiff, the court records of 5. 2.2020 indicate that parties consented to the joinder of the 6th Plaintiff of which the plaint was to be amended within 14 days. This order was similarly not complied with by this particular party; (6th Plaintiff). In the circumstances, the said amended plaint is hereby expunged from the records.”

9. As correctly submitted by counsel for the 4th Plaintiff, the 6th Plaintiff is not a party to this suit as a consequence of the aforementioned ruling. It appears that he crawled back to the proceedings and sought to stall them by purporting to file a notice of withdrawal of suit when the matter was scheduled for hearing. In that regard, the purported notice of withdrawal of the suit dated 15. 5.2024 is of no consequence as the 6th plaintiff has no locus in this matter.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JULY, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Maosa for 4th PlaintiffM/s Magoti for 1st PlaintiffM/s Mwangi for 2nd and 5th DefendantCourt assistant: Eddel