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 1st and 2nd 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 The question which then arose is whether upon such withdrawal of the suit the verifying affidavit was withdrawn as well.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 23rd October, 2007 Lenaola J. held that the effect of the 1st Plaintiff withdrawing his suit against the 1st and 2nd 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 In his view the withdrawal of the suit meant that the verifying affidavit was withdrawn as well…