Active Environmental Team v Username Investment Ltd & 3 others (Environment and Land Petition E005 of 2023) [2026] KEELC 5013 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What order ought to be made as to the costs of the withdrawn Petition and the application dated 22nd December 2022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
#Whether the withdrawn Petition was a genuine public interest suit justified at filing
Yes; it was brought under Articles 42 and 70 on an established state of statutory non-compliance, with no private gain to the Petitioner
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.
Whether either party should bear the other's costs upon withdrawal
Neither; each party to bear its own costs
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.
Whether the authorities relied on by the 1st Respondent (Kassam v Njoroge and Wanjiku v Del Monte) applied
Distinguished; in both cases the withdrawn proceedings had accomplished nothing, unlike the present Petition
In Kassam the petition was withdrawn without cogent reason after substantial responses and disregard of directions; in Wanjiku the plaintiffs withdrew a suit they could not sustain. In neither case had the withdrawn litigation achieved anything; here the withdrawal followed attainment of the regulatory compliance the Petition sought.
Whether the 1st Respondent's expenditure on the EIA process counted as a cost of litigation
No; it was discharge of a pre-existing statutory obligation under Section 58 of EMCA
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.
Legal principles established
#- 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
#- 1.Each party shall bear its own costs of the Petition and of the Notice of Motion dated 22nd December 2022
- 2.The file is marked as closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 42 and 70 of the Constitution; environmental petition under EMCA
Relief refused
#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
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
Costs for the 2nd and 3rd Respondents and the Interested Party
They neither filed submissions on costs nor sought any costs
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
#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.
The withdrawal was therefore not an abandonment of a misconceived claim, but the natural consequence of the grievance having been substantively resolved.
The litigation was not barren; it was spent.
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.
Indemnity costs are exceptional and punitive in nature and are reserved for cases where the offending conduct is established on the record.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.