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ELCAllowedELC Land Petition No. E013 of 2026· [2026] KEELC 5072 (KLR)

Onunga v African Gas and Oil Company Ltd & 4 others (Land Case Petition E013 of 2026) [2026] KEELC 5072 (KLR)

Environment and Land Court
30 July 2026
BAB. A. Akello
4,685 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a petitioner to withdraw his environmental challenge, confirming that withdrawal settles nothing, decides nothing on the merits, and leaves the legal issues open.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Akello J) on a Notice of Motion dated 24th July 2026 in which the Petitioner, John Odhiambo Onunga, sought leave under Rule 27 of the Mutunga Rules to withdraw his Petition filed on 19th June 2026. The Petition had challenged a Special Use Licence granted by the Kenya Forest Service to African Gas and Oil Company Limited over part of the Kilindini Bay mangrove area for LPG terminal infrastructure, and a related conservatory application had attracted a holding order of 22nd June 2026 restraining new major construction works. All Respondents had answered the Petition and the conservatory application, but none opposed the withdrawal; only the 1st Respondent sought costs. The court framed two issues: whether leave to withdraw should be granted, and the juridical effects and costs of the withdrawal. Applying Great Meru Timber Manufacturers Association and Opiyo v Kenya Revenue Authority, the court held that withdrawal of a constitutional petition is not automatic and requires leave, but found good faith, no ulterior motive, and no person willing to carry the petition forward; the court cannot conscript a plaintiff. Leave was granted. Declaring the juridical effects under Rule 27(2), the court held the withdrawal is no determination on the merits, validates nothing, creates no res judicata and does not abate the statutory duties of the Kenya Forest Service, the National Land Commission or NEMA. The interim order of 22nd June 2026 was discharged. On costs, the Petitioner was ordered to pay the 1st Respondent's costs, with no order as to costs as between the Petitioner and the public respondents, each bearing its own. The court also noted, with concern, the total silence of NEMA, the 4th Respondent, and directed that the ruling be served on the 2nd, 3rd and 4th Respondents.

Key legal issues

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01

Whether leave to withdraw the petition should be granted

Holding

Leave granted: the withdrawal is made in good faith, without ulterior motive, no one wishes to carry the petition forward, and the petition is five weeks old and unheard on the merits

Reasoning

Applying the three considerations in Opiyo v Kenya Revenue Authority, the court found no bad faith, no settlement or forum shopping, and no respondent, interested party or member of the public wishing to continue the petition. Rule 27(3) allows the court to proceed without a petitioner, but the court cannot conscript a plaintiff. Refusing leave would merely preserve a file, not the public interest.

p. 15
02

The juridical effects of the withdrawal

Holding

The withdrawal is not an adjudication on the merits, validates nothing, creates no res judicata, and does not abate the statutory duties of the public respondents

Reasoning

Rule 27(2) obliges the court to determine the juridical effects. Following Luka v Narok Bursaries Management Board, withdrawal leaves the issues undetermined and is no bar to future litigation. The court directed service of the ruling on the Kenya Forest Service, National Land Commission and NEMA so that no party mistakes what occurred.

p. 16
03

Who should bear the costs of the withdrawn petition

Holding

The Petitioner pays the 1st Respondent's costs; no order as to costs as between the Petitioner and the public respondents

Reasoning

The 1st Respondent is a private company which instructed advocates and answered and never obstructed the withdrawal, so its real expense must be met by the petitioner. The public respondents sought no costs on the motion, and the court would not award what no party asked for; condemning a citizen in the State's costs for withdrawing an honest environmental complaint early would price citizens out of the courtroom.

p. 19
04

The fate of the interim order of 22nd June 2026

Holding

Discharged, being an interim order made pending an inter partes hearing which will no longer take place

Reasoning

The holding order preserved the status quo pending a hearing that withdrawal has rendered moot. An interim order cannot survive the proceeding that gave it life. The forest's protection nonetheless remains grounded in the 1932 proclamation, the 1964 gazettement, the Forest Conservation and Management Act, the licence conditions and the statutory duties of the 2nd and 4th Respondents.

p. 17

Legal principles established

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  • Withdrawal of a constitutional petition is not automatic and requires leave of the court, which must determine the juridical effects of the withdrawal
  • The juridical effect of withdrawal is that there is no determination on the merits and no bar to future litigation on the subject
  • The court may refuse to allow withdrawal of a public interest petition, but cannot compel a litigant to prosecute a case
  • An interim order cannot outlive the proceeding which gave it life

Court orders

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  1. 1.Leave granted to the Petitioner to withdraw ELC Land Petition No. E013 of 2026; the Petition dated and filed on 19th June 2026 marked as withdrawn
  2. 2.Declared, pursuant to Rule 27(2), that the withdrawal is not a determination on the merits, does not validate, cure, ratify or legitimise any licence, allocation, grant, consent or dealing impugned in the Petition, does not operate as res judicata, and is no bar to any person or Respondent raising the same matters in a competent forum
  3. 3.Declared that the statutory mandates of the 2nd, 3rd and 4th Respondents are wholly unaffected by the ruling
  4. 4.Deputy Registrar to serve a copy of the ruling on the 2nd, 3rd and 4th Respondents within fourteen days, with the copy to the 4th Respondent brought to the personal attention of its Director-General
  5. 5.Interim orders of 22nd June 2026 restraining new major construction works discharged; the Notice of Motion dated 19th June 2026 abates with the Petition
  6. 6.Petitioner to pay the 1st Respondent its costs of the Petition and of the motion dated 24th July 2026, to be taxed if not agreed
  7. 7.No order as to costs as between the Petitioner and the 2nd, 3rd, 4th and 5th Respondents, each bearing its own costs
  8. 8.File closed
Jurisdiction invoked
Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)

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, "Onunga v African Gas and Oil Company Ltd & 4 others (Land Case Petition E013 of 2026) [2026] KEELC 5072 (KLR)", Case Analysis (2026). ELC Land Petition No. E013 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5072/eng@2026-07-30

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