https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5013

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT KISUMU** **ELC PETITION NO. E005 OF 2023** **ACTIVE ENVIRONMENTAL TEAM PETITIONER** **VERSUS** **USERNAME INVESTMENT LIMITED 1ST RESPONDENT** **THE COUNTY GOVERNMENT OF KISUMU 2ND RESPONDENT** **THE CHIEF LAND REGISTRAR 3RD RESPONDENT** **AND** **THE NATIONAL ENVIRONMENT** **MANAGEMENT AUTHORITY INTERESTED PARTY** **RULING** 1. This ruling determines the question of costs following the withdrawal of the Petition dated 22nd December 2022. The Petition was filed contemporaneously with a Notice of Motion application of even date, under which the Petitioner sought and obtained conservatory and inhibitory orders. 2. The Petition was anchored on Articles 42 and 70 of the Constitution. The Petitioner's grievance was that the 1st Respondent had commenced and was promoting the subdivision and intended development of the property known as L.R. No. 6089/3 without undertaking an Environmental Impact Assessment (EIA) and without obtaining an EIA licence, contrary to Section 58 of the Environmental Management and Co-ordination Act (EMCA). 3. The conservatory and inhibitory orders granted by this Court restrained the 1st Respondent from subdividing, selling, transferring, developing, disposing of or otherwise dealing with the suit property, and further restrained the 3rd Respondent from registering any disposition or subdivision in respect thereof. 4. In the course of the proceedings, the Interested Party, the National Environment Management Authority (NEMA), confirmed by way of affidavit that no application for an EIA licence had been received from the 1st Respondent in respect of the impugned project and that no approval had been granted. The 1st Respondent, in its Replying Affidavit, equally acknowledged that it had not yet undertaken an EIA. 5. Subsequently, and with the leave of this Court, the 1st Respondent engaged NEMA on the EIA licensing process. It submitted an EIA Project Report on 31st January 2025, undertook public participation at Nyangeta Community Hall on 14th February 2025 and was ultimately issued with EIA Licence No. NEMA/EIA/PSL/38337 dated 12th March 2025. The licence was placed on the record of this Court through the affidavit of Mr. Reuben Kimani sworn on 30th April 2025 and the Further Affidavit of the Deputy Director of Environmental Assessments, Mr. Robert Orina, sworn on 15th July 2025. 6. Upon the issuance of the licence being confirmed on the record, the Petitioner withdrew the Petition. The withdrawal was not opposed, but the 1st Respondent sought its costs. This Court thereupon directed the parties to file written submissions on the question of costs. 7. Pursuant to those directions, the Petitioner filed its submissions dated 27th February 2026 through the firm of Mkan & Company Advocates, while the 1st Respondent filed its submissions dated 2nd April 2026 through the firm of Wanjohi & Wawuda Advocates. The 2nd and 3rd Respondents and the Interested Party did not file any written submissions in respect of costs, nor did they seek any costs. **The Petitioner's Submissions** 8. The Petitioner seeks the costs of the Petition and of the application dated 22nd December 2022 against the 1st Respondent, on the grounds that the Petition was warranted, necessary and in the public interest. 9. Counsel submitted that whereas the 1st Respondent's Replying Affidavit sought to portray the Petition as speculative, premature and misconceived, the record demonstrated otherwise: NEMA confirmed that no application for an EIA licence had been received and that no approval had been granted, while the 1st Respondent itself acknowledged that it had not yet undertaken an EIA. It was submitted that by commencing and promoting the subdivision and intended development without EIA approval, the 1st Respondent acted in direct contravention of Section 58 of EMCA and Articles 42 and 70 of the Constitution, and that the Petition was necessary to compel regulatory compliance. 10. Counsel further submitted that the 1st Respondent's assertions in its Replying Affidavit that the land was zoned for residential and commercial purposes, that all necessary infrastructure existed and that public participation had been duly conducted were categorically false, and that its conduct amounted to a wilful disregard of statutory and constitutional obligations and a misrepresentation of material facts to the Court. On that basis, the Petitioner urged the Court to award costs on a full indemnity basis, placing reliance on the decisions cited in its submissions, namely **Friends of Lake Turkana Society v National Environmental Management Authority & 2 Others [2020] eKLR and Kenya Railways Corporation v National Environmental Tribunal [2018] eKLR.** 11. Counsel also invoked the public interest character of the litigation. It was submitted that the Petition was filed under Article 70 of the Constitution, which allows any person to apply to court to enforce environmental rights; that public interest environmental litigants deserve protection against adverse costs orders; and that costs should not be used punitively against bona fide environmental claims. Reliance was placed on **Davis & Another v Minister for Environment & Others [2015] eKLR** as cited by counsel. 12. Finally, counsel invoked Section 27(1) of the Civil Procedure Act and submitted that costs follow the event; that the “event” in this matter was NEMA's confirmation that the 1st Respondent had not complied with mandatory environmental procedures; that it was the 1st Respondent's own conduct in promoting a project without NEMA approval that necessitated the litigation; and that the Petition, far from being frivolous or vexatious, succeeded in exposing the non-compliance. The Petitioner therefore prayed that the 1st Respondent be ordered to pay the costs of the Petition and of the application dated 22nd December 2022. **The 1st Respondent's Submissions** 13. The 1st Respondent's position was that the Petitioner must pay the costs of the Petition. Counsel framed the question as being who should bear the costs of a Petition filed with urgency, prosecuted vigorously and abandoned the moment the 1st Respondent had delivered the very regulatory outcome the Petitioner demanded. 14. Counsel submitted that when the Petition was filed, the 1st Respondent had already obtained a change-of-user approval from the 2nd Respondent, being the preliminary planning step preceding an EIA licence application, a fact which the Petitioner's pleadings did not disclose. It was contended that the conservatory and inhibitory orders brought the project to a complete standstill, including the 1st Respondent's ability to engage NEMA on the EIA licensing process, thereby placing it in an impossible position: accused of proceeding without an EIA licence yet simultaneously prevented by court orders from obtaining one. The 1st Respondent required the express leave of this Court to break that impasse. 15. Counsel further submitted that once leave was granted, the 1st Respondent pursued the EIA process under the supervision of the Court and obtained the licence; that at that point the environmental grievance pleaded in the Petition had been substantively resolved; and that the Petitioner did not challenge the licence, did not amend its pleadings, did not question the public participation process and did not invoke the statutory avenues under EMCA, but instead withdrew outright, without explanation and without any offer to meet the legal costs it had occasioned. 16. On the applicable principles, counsel relied on Section 27 of the Civil Procedure Act and the provisions of the Civil Procedure Rules on withdrawal of suits, submitting that where a suit is withdrawn the defendant is ordinarily entitled to costs unless the court directs otherwise, and that the burden rests on the withdrawing party to justify a departure from that default position. Counsel placed reliance on two recent decisions of this Court concerning costs upon withdrawal of public interest-labelled proceedings: **Kassam & 13 Others v Njoroge & 13 Others (Environment and Planning Petition E009 of 2024) [2025] KEELC 584 (KLR) and Wanjiku & 8 Others v Del Monte Kenya Limited & Another; NEMA & 6 Others (Interested Parties) (ELC Petition E001 of 2024) [2024] KEELC 13818 (KLR),** in both of which costs were awarded to the responding parties upon withdrawal of the proceedings. 17. Counsel submitted that the governing test is not whether the Petition had a public interest character when filed, but whether, at the point of withdrawal, the litigation still served a genuine and continuing public purpose, which on the facts it did not. Three points were urged: first, that the Petitioner caused the very regulatory delay it complained of; secondly, that at the date of withdrawal the Petition served no continuing public purpose, the licence having issued and the project having been placed under enforceable NEMA supervision; and thirdly, that the 1st Respondent incurred real and substantial legal costs in instructing advocates, responding to the Petition and the Notice of Motion, attending court on multiple occasions and prosecuting the leave application. The 1st Respondent accordingly prayed that the Petitioner be condemned to pay its costs of the Petition, to be taxed if not agreed. **Analysis and determination** 18. I have carefully considered the rival submissions together with the authorities cited. The sole issue for determination is what order ought to be made as to the costs of the withdrawn Petition and the application dated 22nd December 2022. 19. The starting point is Section 27(1) of the Civil Procedure Act, which provides as follows: *“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”* 20. Order 25 of the Civil Procedure Rules governs the withdrawal and discontinuance of suits. Under Order 25 Rule 3, a defendant is ordinarily entitled to the costs of a suit which has been wholly discontinued. The position at common law and under our rules is therefore that a party who withdraws its suit ordinarily bears the costs occasioned to the opposing parties, unless good reason is shown for a different order. 21. In constitutional litigation, that default position is tempered by Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which provides that the award of costs is at the discretion of the Court and that, in exercising that discretion, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms. 22. The Supreme Court in **Mbevo v Mati & 2 Others (Petition of Appeal 22 of 2019) [2021] KESC 74 (KLR), restating the principles in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] KESC 31 (KLR),** affirmed that while costs ordinarily follow the event, the vital factor is the judiciously exercised discretion of the court, accommodating the special circumstances of the case while being guided by the ends of justice; that the claims of the public interest are a relevant factor in the exercise of that discretion, as are the motivations and conduct of the parties prior to, during and subsequent to the litigation; and that costs do not, in law, constitute an unchanging consequence of legal proceedings. 23. In *Jasbir Singh Rai* (supra), the Supreme Court further observed that matters in the domain of public interest litigation tend to be exempted from the award of costs, and cited with approval the principle that a litigant who has brought proceedings to advance a legitimate public interest, and who has contributed to a proper understanding of the law in question without private gain, should not be deterred from adopting a course beneficial to the public for fear of costs being imposed. 24. The applicable considerations therefore include the conduct of the parties, the subject of the litigation, the circumstances which led to the institution of the proceedings, the events which led to their termination, the stage at which they were terminated, the manner of their termination and the public interest character, if any, of the proceedings. It is against those considerations that I now weigh the competing claims to costs. 25. The first question is whether the Petition was a genuine public interest suit. I am satisfied that it was. It was brought under Articles 42 and 70 of the Constitution to enforce the right to a clean and healthy environment in respect of an intended subdivision and development. Article 70(3) of the Constitution expressly provides that an applicant does not have to demonstrate that any person has incurred loss or suffered injury. There is nothing on the record to suggest that the Petitioner stood to derive any private gain from the proceedings. 26. The second question is whether the Petition was justified when it was filed. Again, I am satisfied that it was. NEMA, the statutory regulator and the Interested Party herein, confirmed on affidavit that no application for an EIA licence had been received from the 1st Respondent and that no approval had been granted. The 1st Respondent itself acknowledged in its Replying Affidavit that it had not yet undertaken an EIA. An EIA licence is a mandatory precondition under Section 58 of EMCA for projects of the kind contemplated. The Petition can therefore not be characterised as speculative, frivolous or vexatious. It was anchored on an established state of statutory non-compliance. 27. The third and decisive consideration is the relationship between the Petition and the events which brought it to an end. The chronology speaks for itself. It was only after the Petition was filed, and under the supervision and with the leave of this Court, that the 1st Respondent submitted its EIA Project Report, undertook public participation and obtained the EIA licence. The withdrawal of the Petition followed immediately upon the confirmation of that licence on the record. In substance, the Petition achieved the very object for which it was brought: the regularisation of the project through the statutory EIA process. The withdrawal was therefore not an abandonment of a misconceived claim, but the natural consequence of the grievance having been substantively resolved. 28. It is on this footing that the two authorities relied upon by the 1st Respondent are distinguishable. In *Kassam v Njoroge* (supra), the petition was withdrawn without any cogent reason being given, after the respondents had filed substantial responses and in circumstances where the petitioners had disregarded the court's directions on amendment; Angote J. found it just and reasonable, in view of the progress of the matter, the effort expended by the respondents and the conduct of the petitioners, to grant costs to the respondents who sought them. In *Wanjiku v Del Monte* (supra), the plaintiffs wholly withdrew their suit which they conceded they could not sustain, offered no reasons for the withdrawal and did not even file submissions on costs; Gacheru J. awarded costs to the defendants who had been caused to participate in the suit. In neither case had the withdrawn proceedings accomplished anything. In the present case, by contrast, the withdrawal followed the attainment of the regulatory compliance which the Petition was filed to secure. The litigation was not barren; it was spent. 29. Does it follow that the Petitioner should have its costs against the 1st Respondent, as it urges? I do not think so, for three reasons. 30. First, the Petitioner elected to withdraw the Petition rather than prosecute it to judgment. The merits were never determined. The serious allegations of deliberate misrepresentation levelled against the 1st Respondent in the Petitioner's submissions were never tested in a hearing, and it would be improper to make findings of wilful misconduct, or to found an award of costs let alone costs on a full indemnity basis upon untested allegations. Indemnity costs are exceptional and punitive in nature and are reserved for cases where the offending conduct is established on the record. 31. Secondly, there is some substance in the 1st Respondent's complaint about the breadth of the interim orders. The conservatory and inhibitory orders, as framed, restrained all dealings with the suit property, and it required the leave of this Court for the 1st Respondent to engage NEMA on the very licensing process whose absence underpinned the Petition. While those orders were granted judicially on the material then before the Court, the fact remains that a portion of the intervening delay and of the procedural steps taken in the matter is attributable to the manner in which the Petitioner framed and maintained its interim relief. That conduct is a relevant factor telling against a full award of costs in the Petitioner's favour. 32. Thirdly, the expenditure incurred by the 1st Respondent in preparing the EIA Project Report, undertaking public participation and obtaining the licence was not a cost of the litigation at all. It was the discharge of a pre-existing statutory obligation under Section 58 of EMCA which the 1st Respondent was bound to meet with or without the Petition. The 1st Respondent cannot, therefore, deploy that expenditure as a makeweight in its claim for costs; nor, conversely, can it be visited upon the Petitioner. 33. Equally, however, the 1st Respondent's prayer for costs against the Petitioner cannot succeed. A party whose established non-compliance with a mandatory statutory requirement precipitated the proceedings, and which regularised its position only after the proceedings were instituted, cannot be heard to say that the proceedings occasioned it recoverable loss. To condemn a bona fide public interest litigant in costs in such circumstances would penalise the enforcement of constitutional and statutory environmental obligations and would have a chilling effect on the very access to justice that Article 70 of the Constitution and Rule 26 of the 2013 Practice and Procedure Rules are designed to secure. 34. Weighing all the foregoing considerations the genuine public interest character of the Petition, its justification at the point of filing, its catalytic role in securing compliance, the Petitioner's election to withdraw without a determination on the merits, and the breadth of the interim orders it obtained and maintained I find that the just and reasonable order is that each party bears its own costs. Neither the Petitioner nor the 1st Respondent has made out a case for an award of costs in its favour. 35. As regards the 2nd and 3rd Respondents and the Interested Party, they neither filed written submissions on costs nor sought any costs. In any event, and consistent with the approach in *Kassam v Njoroge* (supra) that the court can only grant costs to the parties who sought the same, there shall be no order as to their costs. **Disposition** 36. In the end, and flowing from the above analysis, the following orders hereby issue: **i. Each party shall bear its own costs of the Petition and of the Notice of Motion dated 22nd December 2022.** **ii. The file is hereby marked as closed.** It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 30TH DAY OF JULY 2026.** **E. K. WABWOTO** **JUDGE**