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ELCOtherEnvironment and Planning Petition (Kisumu) – number not stated in judgment· [2026] KEELC 4892 (KLR)

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

Environment and Land Court of Kenya
30 July 2026
2,610 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Kisumu (Wabwoto J.) determined only the question of costs of a Petition whose substantive grievance had been overtaken by events. The Petitioner had challenged a residential development by the 1st Respondent at Kibos Meadows, Kisumu, for proceeding without a Strategic Environmental Assessment or EIA licence, contrary to Sections 3, 57A and 58 of EMCA and in violation of Articles 42 and 70 of the Constitution. It was undisputed that no EIA licence existed at filing; conservatory orders had halted activity on the site. With the Court's leave, the 1st Respondent completed the EIA process, obtained a licence confirmed on the record, and the Petition became academic; the Petitioner never challenged the licence or prosecuted the matter further. Both the Petitioner (seeking costs against the Respondents on a full indemnity basis on a vindication theory) and the 1st Respondent (seeking its costs from the Petitioner) filed submissions. The Court held the Petition was genuine public interest litigation, justified at inception, but that public interest character is no trump card: the Petitioner neither obtained a merits determination nor prosecuted the matter to conclusion, while the Respondent's licensing expenses were statutorily obligatory. The ELC decisions in Kassam and Wanjiku v Del Monte were distinguished as withdrawal cases. Finding the equities evenly balanced and no successful litigant, the Court ordered that each party bear its own costs of the Petition and all interlocutory applications, preserving access to justice in environmental public interest litigation, and marked the court file as closed.

Key legal issues

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01

Whether the Petition was public interest litigation

Holding

Yes; it enforced Articles 42 and 70 and EMCA's EIA regime in respect of a development project

Reasoning

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.

p. 4
02

Whether the Petitioner was entitled to costs on a vindication theory

Holding

Only partially; the Petition was justified but not prosecuted to conclusion, so no costs to the Petitioner

Reasoning

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.

p. 4
03

Whether the 1st Respondent was entitled to costs from the Petitioner

Holding

No; Kassam and Wanjiku v Del Monte distinguished as withdrawal cases

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Each party shall bear its own costs of the Petition and of all interlocutory applications filed therein
  2. 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

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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, "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.