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ELCOtherELC Petition No. 005 of 2023

Active Environmental Team v Username Investment Ltd & 3 others (Environment and Land Petition E005 of 2023) [2026] KEELC 5013 (KLR)

Environment and Land Court
30 July 2026
3,292 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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A Kenyan court refused to punish either side with legal costs after an environmental case achieved its goal through settlement-like compliance, not a trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. K. Wabwoto, J) determines costs following the Petitioner's withdrawal of a constitutional environmental petition filed on 22nd December 2022 under Articles 42 and 70 of the Constitution. The Petitioner alleged that the 1st Respondent was subdividing and developing L.R. 6089/3 without an Environmental Impact Assessment or EIA licence, contrary to Section 58 of EMCA. Conservatory and inhibitory orders had restrained dealings with the property. NEMA confirmed on affidavit that no EIA licence application or approval existed, and the 1st Respondent admitted non-compliance. With the court's leave, the 1st Respondent undertook the EIA process, obtained Licence No. NEMA/EIA/PSL/38337 dated 12th March 2025, whereupon the Petitioner withdrew the unopposed Petition. The 1st Respondent sought costs; the Petitioner claimed costs, including on an indemnity basis, invoking public interest protection. The court held the Petition was a genuine, justified public interest suit that catalysed the regulatory compliance it sought; the withdrawal was the natural consequence of the grievance being resolved, distinguishing Kassam v Njoroge and Wanjiku v Del Monte where withdrawn suits accomplished nothing. However, the Petitioner's untested allegations of misconduct could not found indemnity costs, and the breadth of its interim orders told against a full award; conversely, the 1st Respondent, whose statutory non-compliance precipitated the suit, could not claim recoverable loss, and condemnation of a bona fide public interest litigant would chill access to justice. The court ordered each party to bear its own costs, made no order for costs in favour of the 2nd and 3rd Respondents and NEMA (who sought none), and closed the file.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.What order ought to be made as to the costs of the withdrawn Petition and the application dated 22nd December 2022

Key legal issues

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01

Whether the withdrawn Petition was a genuine public interest suit justified at filing

Holding

Yes; it was brought under Articles 42 and 70 on an established state of statutory non-compliance, with no private gain to the Petitioner

Reasoning

The Petition was brought to enforce the right to a clean and healthy environment; Article 70(3) removes the need to show loss or injury; NEMA confirmed on affidavit that no EIA licence application or approval existed and the 1st Respondent admitted it had not undertaken an EIA, an established breach of Section 58 of EMCA.

p. 14
02

Whether either party should bear the other's costs upon withdrawal

Holding

Neither; each party to bear its own costs

Reasoning

The Petition was catalytic in securing the EIA licence, but the Petitioner withdrew without a merits determination and its interim orders were overly broad, requiring leave for the 1st Respondent to pursue licensing; the 1st Respondent's own non-compliance precipitated the suit, and condemning a bona fide public interest litigant would chill access to justice under Article 70 and Rule 26 of the 2013 Rules.

p. 18
03

Whether the authorities relied on by the 1st Respondent (Kassam v Njoroge and Wanjiku v Del Monte) applied

Holding

Distinguished; in both cases the withdrawn proceedings had accomplished nothing, unlike the present Petition

Reasoning

In Kassam the petition was withdrawn without cogent reason after substantial responses and disregard of directions; in Wanjiku the plaintiffs withdrew a suit they could not sustain. In neither case had the withdrawn litigation achieved anything; here the withdrawal followed attainment of the regulatory compliance the Petition sought.

p. 15
04

Whether the 1st Respondent's expenditure on the EIA process counted as a cost of litigation

Holding

No; it was discharge of a pre-existing statutory obligation under Section 58 of EMCA

Reasoning

Preparing the EIA Project Report, public participation and obtaining the licence were obligations the 1st Respondent owed with or without the Petition, so that expenditure could neither support its costs claim nor be visited on the Petitioner.

p. 17

Legal principles established

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  • A genuine public interest environmental petition whose withdrawal follows attainment of the regulatory compliance it sought is 'spent' rather than barren, and neither side is condemned in costs
  • A party whose established statutory non-compliance precipitated the proceedings and which regularised its position only after suit cannot claim recoverable loss from the litigation
  • Indemnity costs are exceptional and punitive and reserved for conduct established on the record, not untested allegations
  • Costs can only be granted to parties who sought them

Court orders

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  1. 1.Each party shall bear its own costs of the Petition and of the Notice of Motion dated 22nd December 2022
  2. 2.The file is marked as closed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 42 and 70 of the Constitution; environmental petition under EMCA

Relief refused

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Petitioner's claim for costs against the 1st Respondent (including on a full indemnity basis)

Petitioner withdrew without a determination on the merits; allegations of wilful misconduct were untested; breadth of the interim orders told against a full award

p. 16

1st Respondent's prayer for costs against the Petitioner

A party whose established non-compliance precipitated the proceedings cannot claim the proceedings occasioned it recoverable loss; awarding costs would chill public interest enforcement

p. 18

Costs for the 2nd and 3rd Respondents and the Interested Party

They neither filed submissions on costs nor sought any costs

p. 19

Costs

Each party shall bear its own costs of the Petition and of the Notice of Motion dated 22nd December 2022; no order as to the costs of the 2nd and 3rd Respondents and the Interested Party.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Each party shall bear its own costs of the Petition and of the Notice of Motion dated 22nd December 2022.
p. 19Final orders - costs
The withdrawal was therefore not an abandonment of a misconceived claim, but the natural consequence of the grievance having been substantively resolved.
p. 14Nature of withdrawal after compliance achieved
The litigation was not barren; it was spent.
p. 15Catalytic public interest litigation distinguished from barren withdrawal
To condemn a bona fide public interest litigant in costs in such circumstances would penalise the enforcement of constitutional and statutory environmental obligations and would have a chilling effect on the very access to justice that Article 70 of the Constitution and Rule 26 of the 2013 Practice and Procedure Rules are designed to secure.
p. 18Access to justice and adverse costs
Indemnity costs are exceptional and punitive in nature and are reserved for cases where the offending conduct is established on the record.
p. 16Indemnity costs
the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
p. 10Section 27(1) Civil Procedure Act - costs follow the event

Issues in the judgment

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minor

Submissions dates postdate the delivery date, with Petitioner's submissions dated 27th February 2026 and 1st Respondent's 2nd April 2026 against a ruling delivered 30th July 2026 - internally consistent but the Petition is dated 22nd December 2022 while numbered 005 of 2023; noted as a minor numbering/date discrepancy

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, "Active Environmental Team v Username Investment Ltd & 3 others (Environment and Land Petition E005 of 2023) [2026] KEELC 5013 (KLR)", Case Analysis (2026). ELC Petition No. 005 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5013/eng@2026-07-30

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