Hon. Hussein Weytan M Abdirahman & 42 others v County Government of Mandera & 2 others
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the withdrawn Petition was a bona fide public interest action.
- 2.Whether the Petitioners should pay the costs of the withdrawn Petition.
Key legal issues
#Whether the withdrawn Petition was a bona fide public interest action
Yes - it was a bona fide public interest action founded on an honest, though material, misapprehension of the land's status.
The Petition sought to restrain an allegedly unlawful land administration process on behalf of the wider community, not for private advantage. The Court found the Petitioners sincerely believed community rights required protection, no private gain or ulterior purpose was established, and withdrawal before substantive hearing supported good faith despite inadequate pre-filing inquiry.
Whether the Petitioners should pay the costs of the withdrawn Petition
No - each party to bear its own costs, the Court departing from the ordinary rule that costs follow the event.
Weighing the factual error, interim restraint and Respondents' expenditure against the genuine communal purpose, honesty of the mistake, absence of ulterior motive and discontinuance before hearing, the Court held that adverse costs would unduly discourage bona fide constitutional litigation, satisfying rule 26 of the Mutunga Rules.
Distinguishing Sonko on costs of withdrawn proceedings
Sonko is distinguishable because there the respondents had done no substantive work before withdrawal.
The Court held Sonko does not create a blanket costs exemption on withdrawal; where respondents have undertaken substantive work, their expenditure is material. Here the 1st and 2nd Respondents filed an application to discharge interim orders, so their compensatory claim was legitimate, though not sufficient to outweigh the protective approach.
Legal principles established
#- Whether proceedings are public interest litigation depends on substance, purpose and beneficiaries, not the litigant's label.
- The public character of a dispute and the propriety of its conduct are separate inquiries; a genuine public cause may be pursued abusively.
- Withdrawal does not create a general exemption from costs where respondents have undertaken substantive work.
Court orders
#- 1.The Petitioners are not ordered to pay the costs of the withdrawn Petition
- 2.Each party shall bear its own costs
- 3.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 22, 23 and 258 of the Constitution of Kenya, 2010; Sections 4 and 13 of the Environment and Land Court Act No. 12 of 2012
Relief refused
#Costs of the withdrawn Petition sought by the 1st and 2nd Respondents
The Petition was a bona fide public interest action founded on an honest misapprehension; an adverse costs order would unduly discourage bona fide constitutional litigation.
Costs
Each party shall bear its own costs.
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.
I therefore decline to order the Petitioners to pay the costs of the withdrawn Petition. I direct that each party shall bear its own costs.
The Petition having been wholly withdrawn, and the outstanding issue of costs having now been determined, the file is marked as closed.
I find that the Petition was a bona fide public interest action founded on an honest, though material, misapprehension.
A litigant cannot rely on the importance of the asserted cause to excuse an inadequate factual inquiry.
The protective approach to constitutional costs does not make such litigation risk-free.
Issues in the judgment
#Delivery date of 2026 conflicts with 2025 dates throughout the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hon. Hussein Weytan M Abdirahman & 42 others v County Government of Mandera & 2 others", Case Analysis (2026). ELC Petition No E009 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6052/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.