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
#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#Whether the withdrawn Petition was a genuine public interest suit justified at filing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Distinguished; in both cases the withdrawn proceedings had accomplished nothing, unlike the present Petition
In Kassam the petition was withdrawn without cogent reason after substantial responses and disregard of directions; in Wanjiku the plaintiffs withdrew a suit they could not sustain. In neither case had the withdrawn litigation achieved anything; here the withdrawal followed attainment of the regulatory compliance the Petition sought.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
- Jurisdiction invoked
- Articles 42 and 70 of the Constitution; environmental petition under EMCA
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.