Otieno v Safaricom Investment Co-operative Society Limited & 2 others (Environment and Land Petition E004 of 2023) [2026] KEELC 4892 (KLR) (30 July 2026) (Ruling)

Otieno v Safaricom Investment Co-operative Society Limited & 2 others (Environment and Land Petition E004 of 2023) [2026] KEELC 4892 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELC 4892 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Petition E004 of 2023 EK Wabwoto, J July 30, 2026 Between Jacob Ochieng Otieno Petitioner and Safaricom Investment Co-operative Society Limited 1st Respondent The County Government of Kisumu 2nd Respondent and the National Environment Management Authority (NEMA) Interested Party Ruling 1.This ruling determines the question of costs of the Petition. The substantive grievance in the Petition having been overtaken by events in the manner set out hereunder, the Court directed the parties to file written submissions confined to the issue of costs. 2.The Petitioner instituted the Petition challenging a residential development project undertaken by the 1st Respondent at Kibos Meadows within Kisumu. The gravamen of the Petition was that the project had proceeded without a Strategic Environmental Assessment and without an Environmental Impact Assessment (EIA) licence, contrary to Sections 3, 57A and 58 of the Environmental Management and Co-ordination Act (EMCA), and in violation of the right to a clean and healthy environment guaranteed under Article 42 of the Constitution as read with Article 70 thereof. The Petition was accompanied by a Notice of Motion upon which conservatory orders were issued halting all activity on the suit property. 3.It is not in dispute that as at the time of institution of the Petition, no EIA licence had been issued in respect of the impugned project. That position was confirmed on the record by the Interested Party. 4.In the course of the proceedings, the 1st Respondent sought and obtained the leave of this Court to progress its EIA application before the Interested Party. Pursuant to the said leave, the 1st Respondent submitted an EIA Project Report, undertook public participation as required under EMCA and ultimately obtained an EIA licence. The issuance of the said licence was confirmed on the court record through affidavit evidence, including the Further Affidavit of Mr. Robert Orina, the Deputy Director of Environmental Assessments at the Interested Party, sworn on 15th July 2025. 5.Upon the issuance of the said licence, the environmental grievance forming the substratum of the Petition was substantially resolved and the Petition was rendered academic. The Petitioner did not challenge the licence, did not amend the Petition and took no further steps to prosecute it. The only live question remaining for determination was that of costs and it is in that context that the Court directed the parties to file their respective written submissions. 6.The Petitioner filed written submissions dated 27th February 2026 through the firm of Mkan & Company Advocates. The 1st Respondent filed written submissions dated 9th April 2026 through the firm of Wanjohi & Wawuda Advocates. Despite the directions issued by this Court, the 2nd Respondent and the Interested Party did not file any written submissions on costs. The Petitioner's submissions 7.Counsel for the Petitioner anchored their submissions on Section 27(1) of the Civil Procedure Act, which provides that costs follow the event and that the court has full power to determine by whom and to what extent such costs are to be paid. Reliance was placed on Party of Independent Candidates of Kenya v Mutula Kilonzo & 2 Others [2013] eKLR for the proposition that the discretion on costs must be exercised judiciously and not arbitrarily, and on Republic v Rosemary Wairimu Munene, Ex parte Applicant [2014] eKLR on the compensatory nature of costs. 8.Counsel submitted that in public interest litigation, courts have adopted a nuanced approach. Citing John Harun Mwau & 3 Others v Attorney General & 2 Others [2012] eKLR and Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution & Planning & 3 Others [2016] eKLR, it was urged that where public interest litigation succeeds in exposing illegality or constitutional breach, it is just that the offending parties bear the costs and that the successful party ought not to be left uncompensated. 9.It was the Petitioner's case that the Respondents proceeded with the project knowing that no EIA process had been undertaken or approved, failed to disclose that fact to the Court and the Petitioner, and instead filed denials and maintained a defensive posture, thereby prolonging the litigation. Counsel characterised this as a breach of the duty of candour, relying on Republic v Kenya Power & Lighting Company Ltd & Another Ex parte Abdulhafidh Sheikh Ahmed Zubeidi [2018] eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Save Lamu & 5 Others v National Environmental Management Authority (NEMA) & Another [2019] eKLR, the latter for the proposition that those whose actions or omissions precipitate public interest litigation cannot escape liability for costs merely because the suit served a public good. 10.Invoking Article 48 of the Constitution and Okiya Omtatah Okoiti v Attorney General & Another [2020] eKLR, counsel submitted that denying the Petitioner costs after vindication would penalise him for upholding the law. The Petitioner accordingly prayed that costs of the Petition and of the application be awarded to him as against the 1st and 2nd Respondents jointly and severally, and that such costs be on a full indemnity basis on account of the public interest nature of the proceedings, the Respondents' conduct and the vindication of constitutional environmental rights. The 1st Respondent's submissions 11.Counsel for the 1st Respondent submitted that the Petition, filed with urgency and prosecuted vigorously, was rendered academic the moment the 1st Respondent completed the very regulatory process that the Petition demanded, and that the Petitioner should therefore bear the costs. It was contended that at the time the Petition was filed, the 1st Respondent had taken the preliminary regulatory steps necessary to enable the development, including obtaining a change of user approval from the 2nd Respondent, and that the EIA licensing process under Section 58 of EMCA was a prospective requirement at the threshold of which the 1st Respondent stood, and not an overdue obligation already in breach. 12.Counsel further submitted that the conservatory orders obtained by the Petitioner froze all activity on the suit land, including the 1st Respondent's engagement with the Interested Party, placing it in an untenable position of being cited for the absence of an EIA licence while simultaneously being restrained from applying for one. The 1st Respondent was compelled to seek the express leave of this Court, whereupon it pursued and obtained the EIA licence. Thereafter, the Petitioner neither challenged the licence, nor amended its pleadings, nor invoked any of the statutory challenge mechanisms available under EMCA, and the litigation simply expired by inaction. 13.On the applicable principles, counsel relied on Section 27 of the Civil Procedure Act and the provisions of the Civil Procedure Rules on costs of suits that are abandoned or not prosecuted, submitting that the burden lay on the Petitioner to justify any departure from the default position that costs follow the event. Counsel placed heavy reliance on two recent decisions of this Court: Kassam & 13 Others v Njoroge & 13 Others (Environment and Planning Petition E009 of 2024) [2025] KEELC 584 (KLR), where Angote J. awarded costs to respondents in a public interest petition that was withdrawn after the respondents had entered appearance, filed responses and participated over an extended period; and Wanjiku & 8 Others v Del Monte Kenya Limited & Another; NEMA & 6 Others (Interested Parties) (ELC Petition E001 of 2024) [2024] KEELC 13818 (KLR), where Gacheru J. awarded costs to defendants who had been caused to participate in a withdrawn suit and had incurred expenses in doing so. 14.Counsel submitted that the governing test is not whether the Petition bore a public interest character at the time of filing, but whether, at the point the litigation became spent, it served any genuine and continuing public purpose that would justify leaving the respondent uncompensated. On the facts, it was urged that the answer was in the negative: the EIA licence had been obtained, conditions imposed and the project placed under enforceable regulatory oversight. The 1st Respondent accordingly prayed that the Petitioner be ordered to pay its costs of the Petition, such costs to be taxed if not agreed. Analysis and Determination 15.Having considered the rival submissions, the sole issue that commends itself for determination is who, as between the parties, should bear the costs of the Petition and of the interlocutory applications filed therein. 16.The starting point is Section 27(1) of the Civil Procedure Act, which vests the costs of and incidental to all suits in the discretion of the court, while providing that costs shall follow the event unless the court, for good reason, otherwise orders. In constitutional litigation, the discretion is further informed 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. 17.The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR affirmed that while costs ordinarily follow the event, the courts have on a case-by-case basis identified good reasons for departing from that rule, and that matters in the domain of public interest litigation tend to be exempted from awards of costs. In Mbevo v Mati & 2 Others (Petition of Appeal 22 of 2019) [2021] KESC 74 (KLR), the Supreme Court reiterated that the vital factor is the judiciously exercised discretion of the court, accommodating the special circumstances of the case, and that the claims of the public interest, together with the motivations and conduct of the parties prior to, during and subsequent to the litigation, are relevant factors in that exercise. 18.The first question is whether the Petition was public interest litigation. Considering the Petition as drawn and filed, I am satisfied that it was. It sought to enforce the right to a clean and healthy environment under Articles 42 and 70 of the Constitution and to secure compliance with the EIA regime under EMCA in respect of a development project. Such matters transcend private disputes and implicate broader societal interests. Indeed, none of the parties seriously contended that the Petition was frivolous at inception; the 1st Respondent's own submissions accept that no EIA licence existed when the Petition was filed and that the licence was only obtained during the pendency of these proceedings. 19.The public interest character of a suit is, however, not a trump card that automatically resolves the question of costs in either direction. As the authorities relied upon by both parties demonstrate, the Court must also weigh the conduct of the parties, the circumstances in which the proceedings were instituted, the events and manner of their termination and the stage at which they terminated. 20.I turn first to the Petitioner's claim for costs. The Petitioner's case rests on the theory of vindication: that the confirmation that no EIA existed proved the Petition right, and that the Respondents should therefore bear the costs of litigation which their own non-compliance precipitated. That argument has force up to a point. The institution of the Petition was, in my view, justified. A development project was proceeding towards implementation without an EIA licence, and the Petition performed the salutary function of subjecting the project to judicial and regulatory scrutiny. It cannot be gainsaid that the EIA licence that now governs the project was obtained under the shadow, and arguably under the impetus, of these proceedings. To that extent, the Petition was neither idle nor vexatious, and it would be wrong to condemn the Petitioner in costs. 21.The vindication theory, however, does not carry the Petitioner the full distance he seeks to travel. First, there has been no determination of the Petition on its merits in the Petitioner's favour; the grievance was resolved not by adjudication but by the 1st Respondent's regularisation of its position through the statutory process, pursued with the leave of this Court. Secondly, once the licence issued and was confirmed on the record, the Petitioner disengaged entirely. He neither challenged the licence nor amended his pleadings nor moved the Court to have the Petition determined or marked as settled. A party who seeks costs on the compensatory rationale must ordinarily have prosecuted the matter to its natural terminus. Thirdly, the conservatory orders obtained at the Petitioner's instance, while legitimately sought, had the practical effect of restraining the very compliance process the Petition demanded, and thereby contributed to the duration of these proceedings and to the expense incurred on all sides. The prayer for costs on a full indemnity basis is even further removed from the justice of the case; such an award is exceptional and is reserved for cases of abuse of process, fraud or comparable misconduct, none of which has been demonstrated. 22.I turn next to the 1st Respondent's claim for costs. The decisions in Kassam and Wanjiku v Del Monte are distinguishable in a material respect: both concerned suits that were formally withdrawn by the plaintiffs after the defendants had actively participated, thereby engaging the principle that the withdrawal of a suit is ordinarily subject to payment of costs. No withdrawal occurred here. More fundamentally, in neither of those cases was it established, as it is here, that the grievance underlying the petition was well founded when the suit was filed. A respondent who attains regulatory compliance in the course of litigation cannot be heard to say that the litigation was unnecessary from inception, nor can it recover costs as though it had been vindicated on the merits. It also bears noting that a substantial component of the expense the 1st Respondent points to, namely the preparation of the EIA Project Report, the conduct of public participation and the prosecution of the licensing process, comprises costs it was bound by statute to incur in any event as a condition of implementing its project. 23.The picture that emerges is one in which the equities are evenly balanced. The Petition was justified at inception and served a genuine public purpose, but it was overtaken by events and thereafter abandoned in all but name by the Petitioner. The 1st Respondent incurred real costs in defending the proceedings, but it did so in respect of a petition that was legitimately brought and that terminated in its achieving the compliance which the law required of it. Neither party can, on this record, lay claim to the status of a successful litigant entitled to be compensated by the other. 24.In these circumstances, and guided by the Supreme Court's admonition in Jasbir Singh Rai and Mbevo v Mati that the ultimate factor is the judicious exercise of discretion in accommodation of the special circumstances of each case, I find that the fair and just order is that each party bears its own costs. Such an order preserves access to justice in genuine environmental public interest litigation consistent with Rule 26(2) of the Practice and Procedure Rules, while at the same time declining to reward a petitioner who did not see his cause through to its conclusion. It also accords with the objective of promoting amity between parties contemplated by Article 159(2)(c) of the Constitution. 25.For the avoidance of doubt, the 2nd Respondent and the Interested Party neither filed submissions nor sought costs. Costs can only be granted to a party who has sought the same. They shall likewise bear their own costs. Disposition 26.In the end, and flowing from the foregoing analysis, the Court makes the following orders:i.Each party shall bear its own costs of the Petition and of all interlocutory applications filed therein.ii.The court file marked as closed.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 30TH DAY OF JULY 2026.E. K. WABWOTOJUDGE