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ELCOtherELC Petition No. 005 of 2023· [2026] KEELC 5013 (KLR)

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
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·~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the natural consequence of the grievance being resolved, distinguishing Kassam v Njoroge and Wanjiku v Del Monte where withdrawn suits accomplished nothing.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.

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

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.