Otieno v Safaricom Investment Co-operative Society Limited & 2 others (Environment and Land Petition E004 of 2023) [2026] KEELC 4892 (KLR)
The bottom line
#A Kenyan environmental court ruled that even successful public interest litigation doesn't guarantee costs if the case is abandoned, ordering everyone to pay their own legal fees.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition was public interest litigation
Yes; it enforced Articles 42 and 70 and EMCA's EIA regime in respect of a development project
The Petition sought to enforce the constitutional right to a clean and healthy environment and compliance with the EIA regime under EMCA in respect of a development project, matters that transcend private disputes. No party seriously contended the Petition was frivolous at inception; indeed the 1st Respondent's own submissions conceded no EIA licence existed when it was filed.
Whether the Petitioner was entitled to costs on a vindication theory
Only partially; the Petition was justified but not prosecuted to conclusion, so no costs to the Petitioner
The Petition was justified at inception and the licence was obtained under its impetus, but there was no merits determination in the Petitioner's favour; he neither challenged the licence nor prosecuted the Petition after it was rendered academic; his conservatory orders restrained the very compliance process he demanded; indemnity costs require misconduct not shown.
Whether the 1st Respondent was entitled to costs from the Petitioner
No; Kassam and Wanjiku v Del Monte distinguished as withdrawal cases
Those authorities concerned formally withdrawn suits after active defence, engaging the withdrawal-costs principle; here there was no withdrawal, the grievance was well founded at filing, and the licensing expenses were statutory costs the Respondent was bound to incur in any event. Equities were evenly balanced with no successful litigant.
Legal principles established
#- The public interest character of a suit does not automatically determine costs; the court must weigh the parties' conduct, the circumstances of institution and the manner and stage of termination
- A respondent who attains regulatory compliance during litigation cannot recover costs as though vindicated on the merits where the grievance was well founded at filing
- Costs can only be granted to a party who has sought them
- In evenly balanced equity where no party is a successful litigant, the just order is that each party bears its own costs, preserving access to justice in genuine environmental public interest litigation
Court orders
#- 1.Each party shall bear its own costs of the Petition and of all interlocutory applications filed therein
- 2.The court file marked as closed
- Jurisdiction invoked
- Articles 42 and 70 of the Constitution read with EMCA (Sections 3, 57A and 58); costs under Section 27(1) of the Civil Procedure Act and Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Safaricom Investment Co-operative Society Limited & 2 others (Environment and Land Petition E004 of 2023) [2026] KEELC 4892 (KLR)", Case Analysis (2026). Environment and Planning Petition (Kisumu) – number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4892/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.