EPHRAHIM MBAE THURANIRA, SARAH KATHURE (ON BEHALF OF HER OWN AND THAT OF THE ESTATE OF JOHN M'RIMBERIA (DECEASED) & WINFRED MAIGENE STEPHEN V. GILBERT KABEERE MBIJIWE, JOCET AUCTIONEERS & COUNTY COUNCIL OF MERU

RULING OF THE COURT

The three applicants EPHRAHIM MBAE THURANIRA, SARAH KATHURE and WINFRED MAIGENE STEPHEN were the plaintiffs in a suit which was commenced in the superior court at Meru to wit CIVIL CASE NO. 15 OF 2003, in which the respondents herein, Gilbert Kabeere Mbijiwe, Jocet Auctioneers and County Council of Meru were named the defendants. An affidavit pursuant to the provisions of order VII rule 1 (2) of the Civil Procedure Rules was filed by Ephrahim Mbae Thuranira, but he later withdrew his suit against the 1^st and 2^nd defendants. The question which then arose is whether upon such withdrawal of the suit the verifying affidavit was withdrawn as well.

In a ruling dated 23^rd October, 2007 Lenaola J. held that the effect of the 1^st Plaintiff withdrawing his suit against the 1^st and 2^nd defendants was that the substratum of the suit was gone and the suit was thus rendered incompetent. In his view the withdrawal of the suit meant that the verifying affidavit was withdrawn as well…