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
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.The Constitution of Kenya [2010] (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013 provides at Rule 27(1) that:
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;
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