Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherELC Petition No E009 of 2025

Hon. Hussein Weytan M Abdirahman & 42 others v County Government of Mandera & 2 others

Environment and Land Court of Kenya
1 October 2026
3,022 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Garissa (Omondi R. Owino, ELJ) determined only the question of costs following the Petitioners' withdrawal of Petition No. E009 of 2025, which had challenged the proposed allocation and regularisation of land in Mandera County - including Baraqwo, Koromey, Headquarters, the CBD and other localities - on the basis that the process involved unregistered community land allocated without participation and consent under the Constitution and the Community Land Act. Interim conservatory orders granted on 22 September 2025 were discharged on 8 October 2025, after which the Petitioners withdrew, citing clarification that the land was public land. The 1st and 2nd Respondents sought costs, relying on section 27 of the Civil Procedure Act and Supermarine Handling Services; the Petitioners invoked Jasbir Singh Rai, Okoiti and Sonko, urging that each party bear its own costs. Framing two issues - whether the Petition was a bona fide public interest action, and whether costs should follow withdrawal - the Court applied rule 26 of the Mutunga Rules, distinguished Sonko because the Respondents had undertaken substantive work, and found the Petition was a bona fide public interest action founded on an honest though material misapprehension. Weighing the Respondents' expenditure and the interim restraint against the genuine communal purpose and discontinuance before hearing, the Court declined to award costs and directed that each party bear its own costs. The file was marked as closed.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the withdrawn Petition was a bona fide public interest action.
  2. 2.Whether the Petitioners should pay the costs of the withdrawn Petition.

Key legal issues

#
01

Whether the withdrawn Petition was a bona fide public interest action

Holding

Yes - it was a bona fide public interest action founded on an honest, though material, misapprehension of the land's status.

Reasoning

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.

p. 7
02

Whether the Petitioners should pay the costs of the withdrawn Petition

Holding

No - each party to bear its own costs, the Court departing from the ordinary rule that costs follow the event.

Reasoning

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.

p. 8
03

Distinguishing Sonko on costs of withdrawn proceedings

Holding

Sonko is distinguishable because there the respondents had done no substantive work before withdrawal.

Reasoning

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.

p. 7

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. 1.The Petitioners are not ordered to pay the costs of the withdrawn Petition
  2. 2.Each party shall bear its own costs
  3. 3.The file is marked as closed

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

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.

p. 8

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.
p. 8Final orders on costs
The Petition having been wholly withdrawn, and the outstanding issue of costs having now been determined, the file is marked as closed.
p. 9Disposition and closure of file
I find that the Petition was a bona fide public interest action founded on an honest, though material, misapprehension.
p. 7Characterisation of the withdrawn petition
A litigant cannot rely on the importance of the asserted cause to excuse an inadequate factual inquiry.
p. 7Duty of pre-filing diligence in public interest litigation
The protective approach to constitutional costs does not make such litigation risk-free.
p. 6Limits of protective costs approach (following Limpopo Legal Solutions)

Issues in the judgment

#
material

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.