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ELCOtherELC Petition (Nairobi), Petition of 12th April 2024 (referred to in judgment; new Petition E021 of 2024 separately filed)· [2025] KEELC 584 (KLR)

Kassam & 13 others v Njoroge & 13 others (Environment and Planning Petition E009 of 2024) [2025] KEELC 584 (KLR)

Environment and Land Court
13 February 2025
3,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that even genuine public interest petitioners can be ordered to pay their opponents' legal costs if they handle the case poorly.

What this practically means

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Executive summary

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The Petitioners, owners and occupiers of residential apartments along City Park Drive, Parklands, filed a Petition on 12th April 2024 challenging development activities on L.R Nairobi/Block 209/9316, seeking conservatory and mandatory injunctive orders and declarations that the developments were unauthorised and violated constitutional rights to a clean and healthy environment. On 20th May 2024 they filed a Notice of Withdrawal, which was confirmed in court on 24th June 2024. Counsel for the 2nd, 5th-9th and 10th and 11th Respondents sought costs, contending the matter had substantially proceeded; the court directed submissions on costs. The Petitioners argued the Petition was public interest litigation and that awarding costs would hinder access to justice, relying on Supreme Court authorities including Okoiti and Jasbir Singh Rai. The 2nd Respondent countered that the Petition was a disguised private dispute, that it had expended substantial effort including filings and submissions oblivious to the withdrawal, and that costs were warranted. The court, without leave, expunged a Supplementary Affidavit filed by the Petitioners. Framing the sole issue as entitlement to costs, the court held the Petition was indeed of public interest since the claims transcended private grievances, but held that the stage of proceedings, the effort expended by the Respondents, and the Petitioners' conduct - including filing an Amended Petition in disregard of court directions and withdrawing without canvassing the amendment Motion - justified costs. Costs were awarded to the Respondents who had sought them, to be assessed by the taxing master; the remaining Respondents were to bear their own costs.

Key legal issues

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01

Whether a withdrawn Petition brought in the public interest should attract costs against the Petitioners

Holding

Costs were awarded to the Respondents who sought them despite the public interest character of the Petition, because of the stage the matter had reached and the Petitioners' conduct

Reasoning

The court recognised that public interest litigation ordinarily attracts exemption from the costs-follow-the-event rule to protect access to justice. However, discretion must account for the conduct of parties and the stage of proceedings. Several Respondents had filed substantial responses and preliminary objections; the Petitioners filed an Amended Petition in disregard of court directions and withdrew the Petition without canvassing their amendment Motion, serving the withdrawal late. Balancing these factors, costs to the Respondents who sought them were just and reasonable.

p. 7
02

Whether the withdrawn Petition qualified as public interest litigation

Holding

The court found that it did, since the Petitioners' claims as adjacent owners and occupiers extended beyond private grievances to enforcement of environmental laws and regulatory accountability

Reasoning

The Petitioners were owners/occupiers of neighbouring apartments with direct personal interests, but their claims implicating environmental conservation, planning laws and the Article 42 right to a clean and healthy environment transcended private disputes. The Petition raised questions affecting the public interest regarding enforcement of environmental laws and accountability of regulatory agencies.

p. 6

Legal principles established

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  • Costs follow the event but remain subject to the court's judicial discretion, and public interest litigation is a recognised ground for departure from the general rule
  • A court may only award costs to parties who sought them

Court orders

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  1. 1.The Petitioners shall pay costs of the Petition to the 2nd, 5th -9th and 10th-11th Respondents to be assessed by the taxing master.
  2. 2.The other Respondents shall bear their own costs.

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 19, 20, 22(1), 23(1), 26, 28, 35, 42, 43(1)(b), 47(1), 50, 69(1), 70, 73, 75(1), 159(2)(c), 165, 232, 259(1)
  • Civil Procedure ActSection 27
  • Environment and Land Court ActSection 15(5)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26
  • Access to Information Act
  • Physical Land Use and Planning Act (PLUPA)
  • Environment Management and Co-ordination Act (EMCA)
  • National Construction Authority Act (NCA)
  • Leadership and Integrity Act
  • Public Officers Ethics Act

Cases cited (12)

  • Okoiti & 2 Others vs Attorney General & 14 Others
    [2021] KESC 31
  • Harun Mwau & 3 Others vs Attorney General and 2 Others
    [2012]eKLR
  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    [2014]eKLR
  • Brian Asin & 2 Others vs Wafula Chebukatu & Others
    [2017]eKLR
  • Afiordable Medicines Trust vs Minister of Health
    (CCT27/04) [2005] ZACC 3; 2006
  • TWW vs KJH & 2 Others
    [2023] KEHC 1607 (KLR)
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others
    [2014]eKLR
  • Cecilia Karuru Nguyu vs Barclays Bank & Another
    [2016]eKLR
  • Republic vs Independent Electoral and Boundaries Commission Ex-parte Allnoor Derow Abdullahi & Others
    [2017]eKLR
  • Mbevo vs Mati & 2 Others
    (Petition of Appeal 22 of 2019) [2021] KESC 74 (KLR) (16 July 2021) (Ruling)
  • Rai & 3 Others vs Rai & 4 Others
    (Petition 4 of 2012) [2014] KESC 31 (KLR) (4 March 2014) (Ruling)
  • Amoni Thomas Amfry and another v The Minister for Lands and another
    Nairobi High Court Petition No 6 of 2013
Jurisdiction invoked
Articles 22, 23, 70 and 165 of the Constitution; Section 15(5) of the Environment and Land Court Act; Section 27 of the Civil Procedure Act; Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kassam & 13 others v Njoroge & 13 others (Environment and Planning Petition E009 of 2024) [2025] KEELC 584 (KLR)", Case Analysis (2025). ELC Petition (Nairobi), Petition of 12th April 2024 (referred to in judgment; new Petition E021 of 2024 separately filed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/584/eng@2025-02-13

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