Muthee & 4 others v Damah Alliance Limited & 7 others; Law Society of Kenya & another (Interested Parties) [2023] KEELC 20385 (KLR)

Muthee & 4 others v Damah Alliance Limited & 7 others; Law Society of Kenya & another (Interested Parties) (Environment & Land Petition E012 of 2023) [2023] KEELC 20385 (KLR) (2 October 2023) (Ruling)

Neutral citation: [2023] KEELC 20385 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Petition E012 of 2023

EK Wabwoto, J

October 2, 2023

Between

David Muthami Muthee

1st Petitioner

Ann Wanjiru Ndichu

2nd Petitioner

Francis Gateri

3rd Petitioner

Patrick Mwaniki Ndwigah

4th Petitioner

Johnson Mjoroge Ephantus

5th Petitioner

and

Damah Alliance Limited

1st Respondent

Mohamed Ker Mohamed

2nd Respondent

Dawid Sheik Abdulrahman

3rd Respondent

The Inspector General of Police

4th Respondent

The Nairobi City County

5th Respondent

CECM, Built Environemnt & Urban Planning Nairobi City County

6th Respondent

The Chief Land Registrar

7th Respondent

The Attoney General

8th Respondent

and

Law Society of Kenya

Interested Party

The Kenya National Human Rights Commission

Interested Party

Ruling

1. The Petitioners herein through the law firm of Abdiaziz & Co Advocates instituted this Petition vide a Petition dated September 6, 2023. Subsequently thereafter the 2nd to 5th Petitioner instructed the law firm of MA Odhiambo & Co Advocates and filed a notice of discontinuance and withdrawal of the said Petition with no order as to costs. No reasons were given for the said withdrawal in the said notice. However, the 2nd & 5th Petitioners also filed separate affidavits the gist of which they denied ever consenting to the filing the said Petition.

2. On September 18, 2023 when the said Petition was scheduled for directions, Counsel Abdiaziz who purportedly was acting for all Petitioners opposed the said withdrawal by the 2nd to 5th Petitioners and argued that the same had been made under duress.

3. TheConstitutionof Kenya [2010] (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013 provides at Rule 27(1) that:“7(1)The Petitioner may:a.On notice to court and the Respondent apply to withdraw the Petition, orb.With leave of the court discontinue the proceedings.”

4. In the case of Harry John Paul Aigi & 2 others vs. Board of Kenya Ports Authority & 2 others [2016] eKLR., it was held that;“Rule 27(1) (a) allows a Petitioner who wishes to withdraw a petition to apply to withdraw the same after giving notice of his intention to both the court and the Respondent.”

5. Clearly, under that provision, the withdrawal of the Petition is not automatic and is not anchored merely by notice. The said rule is very clear that a Petitioner may have to apply to the court to withdraw a Petition already filed.

6. In the instant case, Counsel Abdiaziz objected to the said withdrawal by the 2nd – 5th Petitioners on the reasons that the same had been made through duress and coercion. However, statement by counsel was adduced from the bar which and was countered by the express affidavits sworn and filed herein by the 2nd to 5th Petitioners.

7. In the circumstances, I shall proceed to allow the withdrawal of the Petition by the 2nd to 5th Petitioners with no order as to costs. However, the 1st Petitioner is at liberty to proceed with the said Petition as against the Respondents.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF OCTOBER, 2023. E. K. WABWOTOJUDGE