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ELCOtherNot stated in the judgment as provided· [2022] KEELC 3582 (KLR)

Getare & 2 others (Suing on their own behalf and on behalf of their neighbours) v Nyakiba & 3 others (Land Case 270 of 2018) [2022] KEELC 3582 (KLR)

Environment and Land Court
19 May 2022
2,884 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court let withdrawing environmental plaintiffs avoid paying the defendants' costs because their suit was genuine public interest litigation.

What this practically means

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Executive summary

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The plaintiffs sued the 1st defendant, the County Government (2nd defendant) and two other defendants on July 27, 2018, seeking a declaration that their area was designated a private residential single-dwelling zone, that the change of user of the 1st defendant's plot to a high-rise multi-dwelling development was illegal and void, and permanent injunctions restraining further construction and further approvals. After an application for interim injunction failed and construction was completed and occupied, the plaintiffs filed a notice of withdrawal under Order 25 rule 1 of the Civil Procedure Rules, proposing each party bear its own costs. The 1st defendant opposed and sought costs against the plaintiffs, relying on their conduct and readiness to proceed. Mwangi Njoroge J marked the suit withdrawn against all defendants and reserved ruling on costs. Applying section 27 of the Civil Procedure Act and the dictum in Samson K A Tim v D M Machage, the court acknowledged that a wholly withdrawing plaintiff normally pays costs, but held there was good reason to depart from that rule. The suit was a genuine environmental claim under Article 70 of the Constitution and section 3 of EMCA, raised triable issues regarding change of user, and was public interest litigation transcending the plaintiffs' personal interests. The court ordered that each party bear its own costs, dated and signed at Nakuru on May 19, 2022.

Key legal issues

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01

Withdrawal of suit under Order 25 Civil Procedure Rules

Holding

The suit was properly withdrawn before full hearing by notice under Order 25 rule 1, and the court marked it withdrawn against all defendants

Reasoning

Order 25 permits a plaintiff to wholly discontinue a suit by notice in writing served on all parties before setting down for hearing, or with leave on just terms after setting down. The plaintiffs filed a notice of withdrawal stating the substratum of the case had been overtaken by events since construction was completed. After submissions, the court ordered the suit marked as withdrawn against all defendants, reserving costs for ruling.

p. 2
02

Discretion on costs following withdrawal under section 27 of the Civil Procedure Act

Holding

Although the general rule is that a withdrawing plaintiff pays costs, this was public interest environmental litigation and each party was ordered to bear its own costs

Reasoning

Section 27 gives the court full discretion over costs, with costs following the event unless good reason exists otherwise. The court considered the nature of the claim, its progress and triable issues. It found the suit was a genuine attempt to preserve the environment, raising triable issues on change of user, and that the claim was public interest litigation transcending the plaintiffs' personal interest, justifying departure from the general rule on costs.

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Enforcement of environmental rights under Article 70 of the Constitution and section 3 of EMCA

Holding

The plaintiffs' action was an enforcement of the constitutional and statutory right to a clean and healthy environment, which does not require proof of personal loss or injury

Reasoning

Article 70 of the Constitution and section 3 of the Environmental Management and Co-ordination Act entitle every person to a clean and healthy environment and allow any person to apply for redress without demonstrating personal loss or injury. The court held there is an imperative on every person to protect the environment, and instituting the suit was such action, relevant to the costs discretion.

p. 5

Legal principles established

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  • Costs of a suit are in the discretion of the court and follow the event unless the court for good reason otherwise orders
  • Where a plaintiff withdraws a suit, the general rule is that the plaintiff pays the defendant's costs, but the court retains discretion to order otherwise for good reason
  • A plaintiff acting in the public interest to protect the environment may have the normal costs consequences of withdrawal exercised in their favour

Court orders

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  1. 1.The suit was marked as withdrawn against all the defendants
  2. 2.Each party in the suit to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 rule 1
  • Civil Procedure ActSection 27
  • Constitution of Kenya, 2010Article 42; Article 70
  • Environmental Management and Co-Ordination Act, 1999Section 3

Cases cited (1)

  • Samson K A Tim v D M Machage
    [2019] eKLR
Jurisdiction invoked
Order 25 of the Civil Procedure Rules, 2010 and section 27 of the Civil Procedure Act (ELC original jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Getare & 2 others (Suing on their own behalf and on behalf of their neighbours) v Nyakiba & 3 others (Land Case 270 of 2018) [2022] KEELC 3582 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3582/eng@2022-05-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.