https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5072

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MOMBASA** **ELC LAND PETITION NO. E013 OF 2026** **JOHN ODHIAMBO ONUNGA PETITIONER** **=VERSUS=** **AFRICAN GAS AND OIL COMPANY LTD 1ST RESPONDENT** **KENYA FOREST SERVICE 2ND RESPONDENT** **NATIONAL LAND COMMISSION 3RD RESPONDENT** **NATIONAL ENVIRONMENT** **MANAGEMENT AUTHORITY 4TH RESPONDENT** **THE HON. ATTORNEY GENERAL 5TH RESPONDENT** **RULING** (Notice of Motion dated 24th July 2026) **1.** No man is compelled to sue. He who has opened the door of the court may walk out through it again, and the law will not chain a litigant to a plaint he has come to regret. That is the ordinary rule, and it is a humane one. But a constitutional petition is not quite its author’s own property. When a man comes to this Court and says that public land has been licensed away and a forest handed over to a gas company, he speaks for more than himself. He speaks for a public that did not send him and cannot recall him. And when such a man falls silent, the Court must pause and ask whether the silence is his alone to keep. **2.** That is the short question raised by this short application. The Petitioner wishes to go. The Court must decide whether he may go, and upon what terms the file may be closed behind him. **The application** **3.** By Notice of Motion dated **24th July 2026**, expressed to be brought under **Rule 27** of the **Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013** — the Mutunga Rules — the Petitioner, **JOHN ODHIAMBO ONUNGA**, seeks two orders only: that he be granted leave to withdraw the Petition, and that the costs of the application be provided for. **4.** The motion is grounded upon the Petitioner’s own affidavit sworn on **24th July 2026**. He deposes that he has already filed a Notice of Withdrawal and now seeks the leave of the Court to withdraw the Petition filed on **19th June 2026**; that upon carefully reconsidering the Petition and ascertaining all the relevant facts he has decided that it is no longer necessary to continue with these proceedings; that he has secured an opportunity to travel and reside outside the jurisdiction of this Court and will not be in a position to prosecute the Petition effectively; that judicial economy favours withdrawal; that no prejudice will be occasioned to the Respondents; and that the application is made voluntarily, in good faith and without undue delay. **5.** The Petition did not lie still after it was filed. Together with it the Petitioner moved the Court by Notice of Motion dated **19th June 2026** under certificate of urgency, seeking conservatory orders restraining the 1st Respondent from using the Kilindini Bay mangrove area as an oil and gas landing site or point of docking, discharge or conveyance. By orders given under the hand and seal of this Court on **22nd June 2026** I certified that application urgent; declined, at the *ex parte* stage, to grant the wide conservatory orders sought in prayers (b) and (c), those orders being far-reaching and potentially determinative of the Petition itself and better considered after hearing the parties; and made instead a holding order — that pending the inter partes hearing of the motion the **1st** and **2nd** Respondents, whether by themselves, their servants, employees, contractors or agents, shall not commence or undertake any new major construction works within the licensed mangrove forest area the subject of the special use licence and its addenda, the purpose being to preserve the existing physical footprint of built infrastructure within the forest and no more. Directions followed for service within two days, for responses within seven days, for written submissions of not more than five pages in the form and style of the ELC Practice Directions, and for the inter partes hearing of the motion on **7th July 2026**. It is pursuant to those directions that the responses set out below were filed. **The responses on the record** **6.** When this matter came up for the delivery of a ruling, counsel drew the Court’s attention to a matter which calls for correction, and I make that correction at once and in open court. It had appeared that the Respondents had not answered. That was not so. The **1st**, **2nd**, **3rd** and **5th** Respondents had each responded to the Petition and to the Petitioner’s Notice of Motion dated **19th June 2026**, and each had filed written submissions. A court which is corrected by the Bar is not diminished by the correction; it is assisted by it, and I am obliged to counsel for setting the record straight. Since the parties ask that the record reflect what they filed, I set out their responses, and I take them into account in what follows. **7.** The **1st Respondent**, African Gas and Oil Company Limited, answered by a Replying Affidavit dated **3rd July 2026** sworn by **Wambui Maina**, its Legal Officer, and by written submissions filed by Marende and Nyaundi Associates. Its case is that on **21st March 2012** it was issued by the Kenya Forest Service with a Special Use Licence for thirty (30) years over a portion of the Kilindini Bay Mangrove Area in the Mombasa Forest Zone, for the construction and operation of a common user facility and related LPG terminal infrastructure, pipelines, storage tanks and a jetty; that the licence was issued under **section 56(2)** as read with **section 2** of the **Forest Conservation and Management Act, 2016** and **Regulation 7(c)** of the Forests (Participation in Sustainable Forest Management) Rules, the primary purpose of the activity being energy and therefore a public benefit; that by Clause 6 of the licence the area remains a state forest and the licence confers no exclusive possession, creates no lease or tenancy and alienates nothing, so that neither the participation of the National Land Commission nor any de-gazettement was required; that it holds environmental impact assessment licences issued by the 4th Respondent, submits annual audits by licensed consultants, and has never received an improvement notice, correction order or stop order; that its Energy and Petroleum Regulatory Authority licences are renewed yearly and the current licence runs to 2027; and that the alleged oil spillage is unsupported by any expert report or finding. On public interest it says that it is the largest importer and storer of LPG in the country, employs over one hundred persons and pays conservation fees, forest land rent, wayleave and jetty fees to the 2nd Respondent, and that Clause 11 of the licence binds it to conserve the licensed area. It relied upon ***Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board & others*** **[2016] eKLR**, ***Mrao v First American Bank of Kenya Limited & 2 others*** **[2003] KLR 125**, ***Centre for Rights Education & Awareness (CREAW) & another v Speaker of the National Assembly & 2 others*** **[2017] eKLR**, ***Martin Nyaga Wambora v Speaker of the County Assembly of Embu & 3 others*** **[2014] eKLR** and ***Dapash v Marriot International Inc & 4 others*** **[2026] KEELC 1089 (KLR)**, and prayed that the conservatory application be dismissed with costs. **8.** The **2nd** and **5th** Respondents answered jointly. By a Replying Affidavit filed on **13th July 2026** sworn by **Evans Kegode**, the Head of Survey and Mapping at the Kenya Forest Service, and by written submissions dated **10th July 2026** settled by Ms. Ruth Lutta, Principal State Counsel, they depose and submit that the suit property forms part of the Coastal Mangrove Swamp gazetted as a forest area by **Proclamation No. 44 of 1932**, and declared public forest by **Legal Notice No. 174 of 1964**, a status never since revoked; that its management vests in the Kenya Forest Service under **section 34** of the Forest Conservation and Management Act and not in the National Land Commission; that the licence conditions themselves require the rehabilitation of some 300 hectares of mangrove forest, the establishment of a Community Forest Association and the preparation of a Participatory Forest Management Plan; that no real and imminent danger was demonstrated; and that if the licence should hereafter be found unlawful, this Court retains wide remedial powers under **Articles 23** and **165** of the Constitution as read with **section 13** of the Environment and Land Court Act. They too prayed that the conservatory application be dismissed with costs. **9.** The **3rd Respondent**, the National Land Commission, filed Grounds of Opposition dated **8th July 2026** and written submissions settled by Mr. Solomon Mbuthia, Principal Litigation Counsel. It contends that the Petitioner’s application fails to give **Articles 67** and **69** of the Constitution a holistic reading as those Articles are given effect by the Forest Conservation and Management Act, Cap. 385; that it overlooks **section 56** of that Act; that it does not meet the threshold for conservatory orders; and that it is frivolous, vexatious, incompetent and an abuse of the process of the Court. Its submissions join issue squarely with the Petition, contending upon the questions whether all forests, including government forests and specially protected areas, are government land within **Article 62(2)** and **(3)** and **Article 67(2)** of the Constitution and **section 14** of the National Land Commission Act, and whether the power to confer rights over public forest land by licence lies with the 2nd Respondent or with the Commission. **10.** The **4th Respondent** has filed nothing. It has neither replied nor submitted, and I record my concern at that silence. The National Environment Management Authority is, by **section 9** of the Environmental Management and Co-ordination Act, the principal instrument of Government in the implementation of all policies relating to the environment. The allegation in this Petition was that a mangrove forest on the shore of Kilindini Bay is being degraded by oil spillage; the answer of the 1st Respondent rested, in no small measure, upon licences which the 4th Respondent issued, audits which the 4th Respondent requires and notices which the 4th Respondent never found occasion to issue. Of all the parties on this record, the one whose word would have counted for most upon the state of that forest is the one from which nothing at all has been heard. A regulator summoned to answer for the environment does not discharge its mandate by leaving the answering to the licensee. I say no more, for the Petition will not now be tried; but the silence is noted, and this ruling will be served upon the 4th Respondent so that it is noted there also. **11.** Those responses, it must at once be said, were addressed to the Petition and to the conservatory application dated **19th June 2026**. Upon the present motion the position is shorter and quite different. No Respondent opposes the withdrawal. Only the **1st Respondent** asks that it be awarded the costs to which it has been put. The **2nd**, **3rd** and **5th** Respondents, while properly asking that the record be corrected, neither oppose the withdrawal nor seek any costs upon it. No interested party has sought to be joined, and no person — Respondent, party or member of the public — has signified any wish to carry the Petition forward. The only live contest before me is a contest about costs. **Issues for Determination** **12.** Two issues arise for determination: (i) Should the Petitioner be granted leave to withdraw the Petition? (ii) What are the juridical effects of that withdrawal, and who should bear the costs? ***(i) Should the Petitioner be granted leave to withdraw the Petition?*** **13.** It is convenient to begin with the rule which governs the matter. **Rule 27** provides that a petitioner may, on notice to the court and to the respondent, apply to withdraw the petition, or, with the leave of the court, discontinue the proceedings; that the Court shall, after hearing the parties, “decide on the matter and determine the juridical effects of that decision”; and that, despite sub-rule (2), the Court may, for reasons to be recorded, proceed with the hearing of a petition “in spite of the wish of the petitioner to withdraw or discontinue the proceedings”. Three things follow from that language. Withdrawal is not automatic. It is not achieved by the mere filing of a notice. And the Court is not a rubber stamp; it must turn its mind to what the withdrawal will do. **14.** That is settled. In ***Great Meru Timber Manufacturers Association v Kenya Forest Service & 3 others*** **(Constitutional Petition E002 of 2022) [2023] KEELC 16119 (KLR)**, this Court held that no petition can be withdrawn without leave, “since there is always a public interest element in a constitutional petition hence a notice of withdrawal is not automatic”, applying ***Harry John Paul Arigi & 2 others v Board, Kenya Ports Authority & 2 others*** **[2016] eKLR**. Public interest litigation, it has rightly been said, is not a party’s private suit which he may withdraw at his whim. Counsel is therefore to be commended for coming by motion rather than resting upon the bare notice; the notice alone would not have done. **15.** What, then, must the Court weigh? In ***Opiyo & 2 others v Kenya Revenue Authority & 2 others*** **(Commercial Petition E013 of 2025) [2025] KEHC 15023 (KLR)** the considerations were usefully distilled into three: that the withdrawal will not, and is not intended to, prejudice the public interest; that it is made in good faith and not for any ulterior motive or personal gain; and that the Court cannot itself proceed with the hearing, as where no person has signified a wish to carry the petition on. I adopt that formulation, and apply it. **16.** The first consideration gives me pause, and I say so plainly. This is not a quarrel about a boundary. The Petition alleges the illegal licensing of public land, and it names the **Kenya Forest Service**, the **National Land Commission** and the **National Environment Management Authority** among its Respondents. Public land is held in trust under **Article 62** of the Constitution; forests are held for generations who have no advocate on the record; and the standing to complain of their loss is deliberately wide, as **Article 70** of the Constitution and **section 3(3)** of the Environmental Management and Co-ordination Act make plain. The Court of Appeal put the point in ***National Environmental Tribunal v Overlook Management Limited & 5 others*** **[2019] KECA 1005 (KLR)**, holding that the Act “was conceived in public interest” and calls for an interpretation which expands, rather than narrows, standing in matters of environmental protection. A petition of this character is one in which the Court has a legitimate interest of its own. Nor were the questions raised trifling ones. The papers filed disclose a genuine and unresolved contest over whether a Special Use Licence may lawfully be granted over a gazetted mangrove forest, and over where, as between the 2nd and 3rd Respondents, the power to deal with public forest land resides. Those are questions of consequence. They will have to await a case in which they are argued to a conclusion. **17.** But the second and third considerations point the other way, and they point decisively. There is nothing before me from which I could infer bad faith. No consent has been sprung upon the Court; no settlement has been recorded; no money is said to have changed hands; no parallel suit has been filed elsewhere to make this withdrawal an exercise in forum shopping. There is, it is true, the interim order of **22nd June 2026**, and I deal with it in its place below; but that was a holding order made to preserve a state of affairs pending a hearing which will now not take place, and nothing else done in this Petition would be undone by the withdrawal. And, most tellingly, there is no one left to sail the ship. The Respondents have answered, but not one of them asks that the Petition be tried. Every one of them prayed that the Petitioner’s application be dismissed; the withdrawal gives them, in substance, the very thing for which they asked. No Respondent, interested party or member of the public has come forward to say that the Petition should live. Rule 27(3) gives this Court a power to proceed without the petitioner; it does not give the Court a litigant. I may decline to let a public interest matter be buried; I cannot conscript a plaintiff, nor manufacture evidence, nor prosecute a case from the Bench. A judge who tries to do all three ceases to be a judge. **18.** The cases in which leave has been refused illustrate the distinction. Withdrawal has been disallowed where a petition stood at the very door of judgment, where a co-petitioner remained willing to proceed, or where the withdrawal was a manoeuvre to escape an imminent ruling. This Petition is five weeks old and has never been heard upon its merits. What was pending was an interlocutory application for conservatory orders, brought by the Petitioner himself, in which the wide orders he sought had already been declined at the *ex parte* stage. The only ruling in prospect was therefore a ruling upon his own motion — one from which he had much to lose and nothing whatever to escape. A litigant who abandons before a ruling he asked for is not running from the Court; he is sparing it. To refuse leave here would not preserve the public interest; it would merely preserve a file, and a file is not a case. **19.** I am therefore satisfied that leave to withdraw ought to be granted. The Petitioner may go. The question that remains is what he leaves behind. ***(ii) What are the juridical effects of the withdrawal, and who should bear the costs?*** **20.** Rule 27(2) does not permit me to close this file in silence. It obliges the Court to “determine the juridical effects” of the decision, and I do so now, so that no party may hereafter mistake what has happened in this Court today. The withdrawal of a petition is not an adjudication. As was put in ***Luka v Narok Bursaries Management Board & 6 others*** **(Constitutional Petition E016 of 2023) [2024] KEHC 2523 (KLR)**, the juridical effect of a withdrawal is “that there is no determination of the issues in the petition on merit, which is not a bar to future litigation or action on the subject”. **21.** Let it therefore be understood. Nothing in this ruling decides that the licence complained of was lawfully issued, or that it was not. Nothing in it validates, cures, ratifies or legitimises any licence, allocation, grant or dealing in respect of the land in question. Nothing in it operates as *res judicata* against any other person. And nothing in it abates by one inch the statutory duties of the **2nd**, **3rd** and **4th** Respondents, who are guardians of the public estate and do not require a private citizen’s petition before they may act. An illegality, if illegality there be, is not cured by the departure of the man who complained of it. For that reason I shall direct that this ruling be served upon those three Respondents. The Court closes the file; it does not put out the light. **22.** One matter of housekeeping must be attended to before costs. The order of **22nd June 2026** restraining new major construction works was, in its very terms, an order made pending the *inter partes* hearing of the Notice of Motion. That hearing will not now be held. An interim order cannot outlive the proceeding which gave it life, and it would be wrong to leave a restraint standing over parties who are no longer before the Court in a suit which no longer exists. The order is therefore discharged. Let it not be supposed, however, that the mangrove is thereby abandoned to its fate. It is not. The protection of that forest never rested upon my interim order. It rests upon the proclamation of **1932** and the gazettement of **1964**, upon the Forest Conservation and Management Act, upon the conditions written into the licence itself — the rehabilitation of some 300 hectares, the Community Forest Association, the participatory management plan — and upon the statutory duties of the **2nd** and **4th** Respondents. What is lifted today is a temporary judicial hand upon the shoulder. The hand of the statute remains precisely where it has always been. **23.** There remains costs, and it is upon costs alone that the parties are divided. Rule 26 of the Mutunga Rules places the award of costs in the discretion of the Court and requires the Court, in exercising it, to take appropriate measures to ensure that every person has access to the Court to determine their rights. The Supreme Court has explained how that discretion is to be exercised. In ***Rai & 3 others v Rai & 4 others*** **(Petition 4 of 2012) [2014] KESC 31 (KLR)** it held that the award of costs is normally guided by the principle that costs follow the event, “the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails”, but that the rule is not invariable; the vital factor is “the judiciously-exercised discretion of the Court”, and the claims of the public interest, together with the motivations and conduct of the parties, are relevant to it. So it is that where the issues raised are public in nature, that Court has held the public interest to be served by each party bearing its own costs: ***Matemu v Trusted Society of Human Rights Alliance & 5 others*** **[2014] KESC 6 (KLR)**; and where a public interest matter was withdrawn early and unopposed, it made no order as to costs: ***Owiso & 2 others v Attorney-General & another*** **(Petition E020 of 2025) [2025] KESC 62 (KLR)**. But the public interest is a shield for the citizen who sues; it is not a licence to put another party to expense and then walk away from the bill. This Court has held that a plaintiff who withdraws after the other side has instructed advocates and answered must pay for the trouble he has caused: ***Wanjiku & 8 others v Del Monte Kenya Limited & another*** **[2024] KEELC 13818 (KLR)**. **24.** Applying those principles, the Respondents in this Petition do not all stand upon the same footing, and it would be wrong to treat them as though they did. The **1st Respondent** is a private trading company. It was sued, it was served, it instructed advocates and it has answered. Its expense is real, and it was occasioned entirely by the Petitioner’s own decision to sue and then to think better of it. Nothing is said against its conduct; it has not obstructed the withdrawal, and it asks for nothing but its costs. It is entitled to them. The **2nd**, **3rd**, **4th** and **5th** Respondents stand quite differently. They are public bodies, sued in respect of the discharge of public duties. They have answered the Petition, and two of them asked for costs upon the conservatory application; but upon this motion not one of them seeks a shilling. A court does not award what no party has asked for. As between them and the Petitioner there is therefore no event for costs to follow. And I would add this: to condemn a citizen in the costs of the State because he raised an environmental complaint against it and then withdrew that complaint early and honestly would be to price the next citizen out of the courtroom. The door which **Article 70** holds open should not be made expensive to close. The Petitioner shall bear the 1st Respondent’s costs; as between the Petitioner and the remaining Respondents, each party shall bear its own. **Disposition** **25.** For the reasons I have given, I make the following orders — ***(a)*** ***Leave is granted to the Petitioner to withdraw ELC Land Petition No. E013 of 2026, and the Petition dated and filed on 19th June 2026 is hereby marked as withdrawn.*** ***(b) For the avoidance of doubt, and pursuant to Rule 27(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the juridical effects of the said withdrawal are declared to be as follows: the withdrawal is not a determination of any issue raised in the Petition on its merits; it does not validate, cure, ratify or legitimise any licence, allocation, grant, consent or dealing impugned in the Petition; it does not operate as res judicata; and it is no bar to any person, or to any of the Respondents, hereafter raising the same matters before this or any other competent forum.*** ***(c) The statutory mandates and powers of the 2nd Respondent (Kenya Forest Service), the 3rd Respondent (National Land Commission) and the 4th Respondent (National Environment Management Authority) in respect of the subject matter of the Petition are wholly unaffected by this ruling.*** ***(d) The Deputy Registrar shall cause a copy of this ruling to be served upon the 2nd, 3rd and 4th Respondents at the addresses on the record within fourteen (14) days of the date hereof, and the copy directed to the 4th Respondent shall be brought to the personal attention of its Director-General.*** ***(e) The interim orders issued herein on 22nd June 2026, restraining the 1st and 2nd Respondents from commencing or undertaking any new major construction works within the licensed mangrove forest area, having been made pending the inter partes hearing of the Notice of Motion dated 19th June 2026, are hereby discharged; and that Notice of Motion abates with the Petition.*** ***(f) The Petitioner shall pay the 1st Respondent its costs of the Petition and of the Notice of Motion dated 24th July 2026, such costs to be taxed if not agreed.*** ***(g) There shall be no order as to costs as between the Petitioner and the 2nd, 3rd, 4th and 5th Respondents, each of whom shall bear its own costs.*** ***(h) The file is hereby closed.*** The Petitioner is at liberty to go his way, and the Court wishes him well upon his travels — though not before he has met the modest bill which his change of mind has left behind him. But the land and the forest which drew him here remain where they have always stood — within the jurisdiction of this Court and within the trust of the Republic; and if the wrong he alleged is a real one, it does not leave the country with him. It is so ordered. This **Ruling** is **dated, signed** and **delivered** virtually vide Microsoft Teams at MOMBASA this **30th day of July, 2026.** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **B. A. AKELLO, OGW** **JUDGE** **In the presence of;** Magolo, holding brief for Okumu — for the Petitioner/Applicant Marube, holding brief for Dr. Nyaundi — for the 1st Respondent Lutta — for the 2nd and 5th Respondents Mbuthia - for the 3rd Respondent N/A — for the 4th Respondent Gillian Mutamba — Court Assistant