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

-ANDTHE PHYSICAL AND LAND USE PLANNING ACT2 -ANDIN THE MATTER OF: GAZETTE NOTICE NO. 7249 OF 30TH MAY 2025; -BETWEENHON. HUSSEINWEYTAN M ABDIRAHMAN….....................................................................................1 ST PETITIONER HON. MOHAMED ABDI ABDIRAHMAN…...........................................................................................2 ND PETITIONER ADAN MOHAMED......................................................................................................................................3 RD PETITIONER ABDISALAT IBRAHIM..............................................................................................................................4 TH PETITIONER ABDIRIZACK ALI ROBOW.........….......................................................………………………………..5 TH PETITIONER ABDULLAHI ADAN HASSAN.............................................................................................................…..6 TH PETITIONER MOHAMED MAALIM IBRAHIM.................................…........................................................................7 TH PETITIONER ABDULLAHI ADAN MOHAMUD......................…...............................................................................8 TH PETITIONER SHUKRI HASSAN ABDI................................. ........................................................................................9 TH PETITIONER MOHAMED FARAH.......................….............................................…………………………………...10 TH PETITIONER UGAS MOHAMED NUH....................................…................................................................................11 TH PETITIONER ADAN ABDIRAHMAN....…............................................................…………………………………...12TH PETITIONER SANEY ADAN..........................…............................................................................................................13 TH PETITIONER FARAH MOHAMED BULLE.…...........................................................................................................14 TH PETITIONER MOHAMED DAHIR ABDULLA..................................................…………………………………….15TH PETITIONER MOHAMED IBRAHIM.........................…................................................................................................16 TH PETITIONER RASHID MAALIM A................…....................................................…………………………………...17 TH PETITIONER ABDISHAKUR MOHAMED…......................................................…………………………………...18TH PETITIONER ABDULLAHI ISSACK HUSSEIN................................................…………………………………….19TH PETITIONER ADAN ALI MOHAMED.......................…..............................................................................................20 TH PETITIONER BISHAR ABDI DIIS............................….................................................................................................21 ST PETITIONER BARE ADAN OMAR ..........….................................................................................................................22 ND PETITIONER OMAR MAALIM ADAN.................….....................................................……………………………….23 RD PETITIONER BARE ADAN ABDI..................….....................................................…………………………………...24 TH PETITIONER ABDI OYOW SAMOW.................…...............................................…………………………………...25 TH PETITIONER ISMAIL MOHAMED JELLE.........................................................…………………………………...26TH PETITIONER OSMAN BILLOW HULBALE......................................................…………………………………….27TH PETITIONER ABDULLAHI BARYARE................…............................................…………………………………...28TH PETITIONER ABDIRASHID MOHAMED AHMED.........................................………………………………….....29TH PETITIONER DUNIA ABASS HAJI........................................................................…………………………………...30 TH PETITIONER DEKA DEROW ALI............................….................................................................................................31 ST PETITIONER IQRA ABDOW ISSAK.......................…..................................................................................................32 ND PETITIONER SHUKRIA ABDILE AHMED.............................................................………………………………....33 RDPETITIONER Page 2 of 9

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IMAN MOHAMED MUHAMUD...….............................................…………………………………..34TH HASHIM MUHUMED......................................................…………………………………..35TH PETITIONER AHMED PETITIONER ABDIFATAH ABDULLAHI HAJI........................................................................................................36 TH PETITIONER ABDIAZIZ MUHUMED BULLE.................................................….....................................................37 TH PETITIONER IFRAH HASSAN AHMED...............….............................................…………………………..............38 TH PETITIONER HAMDI ABDIKADIR KASSIM......…..............................................………………………………....39TH PETITIONER SAADIA ALI ADAN...........................…..................................................................................................40 TH PETITIONER YASMIN HUSSEIN SALAD............…..............................................………………………………….41ST PETITIONER ABDIAZIZ DIRIE DEROW..................…........................................………………………………….42ND PETITIONER FATUMA KHALIF HUSSEIN ........…...................................................................................................43 RD PETITIONER -VERSUSTHE COUNTY GOVERNMENT OF MANDERA…….……...……......................................................1 ST RESPONDENT THE CECM FOR LANDS, PHYSICAL PLANNING, HOUSING AND URBAN DEVELOPMENT COUNTY GOVERNMENT OF MANDERA..........................................................2 ND RESPONDENT THE NATIONAL LAND COMMISSION...............................................................................................3 RD RESPONDENT RULING I. Introduction 1. The Petitioners withdrew their Petition dated 18th September 2025 by a notice of withdrawal dated 25th November 2025. The outstanding question is whether they should pay the costs of the withdrawn Petition. The 1st and 2nd Respondents seek costs, while the Petitioners urge the Court to direct that each party bear its own costs. 2. Pursuant to the directions issued on 27th November 2025 by Gicheru J, the parties filed written submissions on that question. This ruling determines costs only; it does not determine the merits of the withdrawn Petition. II. Background 3. The Petition challenged the proposed allocation and regularisation of tenure of land within several localities in Mandera County, including Baraqwo, Koromey, Headquarters, the Central Business District, High Density, High Density 2, Neboi, Heleshid, Low Density and the Environmental Protection Programme areas. The National Land Commission communicated the process through a notice published in the Standard newspaper on 3rd September 2025. 4. The Petitioners brought the proceedings on their own behalf, on behalf of members of the affected community and in the interests of the wider citizenry of Mandera County. Their principal complaint was that the Respondents were allocating what they believed to be unregistered community land without the participation and consent required by the Constitution and the Community Land Act. Page 3 of 9

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5. On 22nd September 2025, the Court granted interim conservatory orders. The 1st and 2nd Respondents subsequently filed an application dated 30th September 2025 seeking their discharge. They maintained, among other matters, that the impugned process concerned public land, rather than community land. 6. The interim orders were discharged on 8th October 2025. The Petitioners thereafter withdrew the Petition, explaining that clarification of the land’s status had displaced the factual premise on which they instituted the proceedings. III. Parties’ Cases 7. The Petitioners submit that the proceedings were brought honestly to protect perceived community land rights and promote constitutional governance. Upon learning that the impugned process concerned public land, they elected to withdraw rather than pursue a claim founded on a mistaken understanding of the land’s status. 8. They contend that the Petition was neither frivolous nor vexatious and was not motivated by private gain, malice or an ulterior purpose. They rely principally on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR and Okoiti & 2 others v Attorney General & 14 others [2023] KESC 31 (KLR), concerning the exercise of discretion on costs in public interest litigation. 9. They also cite Sonko v Clerk, County Assembly of Nairobi City & 12 others [2022] KESC 17 (KLR), and submit that withdrawal before substantive determination ought not to attract costs. Additionally, they refer to a separate petition challenging the same allocation notice as demonstrating the public significance of the underlying subject matter. 10. The 1st and 2nd Respondents submit that they incurred expense in appointing advocates, preparing affidavits, filing the application to discharge the interim orders and attending Court. They dispute the suggestion that withdrawal occurred before they had undertaken substantive work. 11. They further contend that the Petitioners could have established the status of the land by inspecting the records made available pursuant to the public notice. In their view, the proceedings were founded on readily verifiable inaccuracies, were premature and cannot be shielded from costs merely by being described as public interest litigation. 12. Relying on section 27 of the Civil Procedure Act and authorities including Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR, they urge the Court to award costs to compensate them for the expense of defending the proceedings. IV. Issues for Determination 13. Two issues arise: i) Whether the withdrawn Petition was a bona fide public interest action. ii) Whether the Petitioners should pay the costs of the withdrawn Petition. Page 4 of 9

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V. Applicable Legal Principles 14. Articles 22(2)(c) and 258(2)(c) of the Constitution permit proceedings to be instituted by a person acting in the public interest. Whether a claim possesses that character depends on its substance, purpose and intended beneficiaries, rather than the litigant’s description of it. 15. In Brian Asin & 2 others v Wafula W. Chebukati & 9 others [2017] eKLR, the Court explained public interest litigation by reference to proceedings seeking enforcement of a public or general interest affecting the rights or liabilities of the public or a section of the community. The Court must therefore examine both the interest asserted and whether the proceedings genuinely seek its protection. 16. Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules), 2013, specifically governs costs in constitutional proceedings. Rule 26(1) makes their award discretionary, while rule 26(2) requires the Court to exercise that discretion with appropriate regard to access to the Court for determination of rights and fundamental freedoms. 17. Section 27(1) of the Civil Procedure Act expresses the general principle that costs follow the event unless the Court, for good reason, orders otherwise. As explained in Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR, the discretion is judicial and must be grounded in the circumstances of the case. In constitutional proceedings, that general principle must be considered alongside the specific access-to-justice requirement in rule 26. 18. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR, at paragraphs 15 and 18, the Supreme Court recognized public interest litigation as a consideration capable of justifying departure from the ordinary rule. It also identified the parties’ motivations and conduct before, during and after litigation as relevant. Neither success nor failure is therefore the sole consideration. 19. In Okoiti & 2 others v Attorney General & 14 others [2023] KESC 31 (KLR), the Supreme Court reiterated that the central consideration in constitutional litigation is whether a costs order would hinder or promote constitutional justice. The protective approach serves genuine efforts to address public wrongs; it does not arise merely because proceedings invoke constitutional provisions. 20. Beyond the authorities cited by the parties, Feisal Hassan & 2 others v Public Service Board of Marsabit County & another [2016] eKLR is particularly relevant. That decision concerned costs following withdrawal of a constitutional petition. At paragraph 3, the Court emphasized access to constitutional justice while recognizing wholly frivolous proceedings and abuse of the constitutional process as circumstances capable of justifying adverse costs. The principle was subsequently discussed in Odilia v Kenyatta University [2022] KEHC 13171 (KLR). 21. Dindi Oscar Okumu v Robert Pavel Oimeke & 5 others [2021] KEHC 3575 (KLR) likewise concerned the costs of a withdrawn constitutional petition. It illustrates that withdrawal leaves a distinct question of costs for judicial determination. The Court must examine the character and conduct of the proceedings Page 5 of 9

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rather than assume that withdrawal either establishes an entitlement to costs or excludes one. 22. The limits of protection were expressly recognized in John Harun Mwau & 3 others v Attorney General & 2 others [2012] eKLR, at paragraph 180. Although legitimate public interest litigants should not be discouraged by the prospect of costs, the Court retains jurisdiction to impose costs where proceedings are frivolous, vexatious or an abuse of process. 23. A useful persuasive authority on litigation conduct is Limpopo Legal Solutions and another v Eskom Holdings SOC Limited [2017] ZACC 34. The Constitutional Court of South Africa explained that the protective approach to constitutional costs does not make such litigation risk-free. Frivolous, vexatious or manifestly inappropriate proceedings, and impropriety in their conduct, may remove the justification for protection notwithstanding the asserted worthiness of the cause. 24. Consequently, the public character of a dispute and the propriety of its conduct are separate inquiries. A genuine public cause may be pursued abusively. Conversely, failure to establish an asserted fact does not, without more, demonstrate frivolity or bad faith. The Court must assess the nature of the error, the explanation offered, the inquiries reasonably available to the litigant and the conduct following clarification. 25. Withdrawal is relevant as subsequent conduct, but its weight depends on the circumstances. Sonko v Clerk, County Assembly of Nairobi City & 12 others [2022] KESC 17 (KLR) does not establish a general exemption whenever proceedings are withdrawn. Its circumstances included withdrawal before substantive responses or submissions had been filed, save for a preliminary objection. Where respondents have undertaken substantive work, their expenditure remains a material consideration. 26. The resulting inquiry is whether, considering the public interest advanced, the factual foundation, the parties’ motivations and conduct, the explanation and stage of withdrawal, and the expense occasioned, an adverse costs order would serve the interests of justice. Those factors must be weighed cumulatively, with reasons given for either applying or departing from the ordinary rule. VI. Analysis and Determination Whether the withdrawn Petition was a bona fide public interest action. 27. The Petition challenged the proposed allocation and regularisation of land that the Petitioners believed was unregistered community land. Their complaint was that the process lacked the participation and consent required to protect the affected community. The intended beneficiaries extended beyond the Petitioners to residents of the identified localities in Mandera County. 28. Applying the substantive approach in Brian Asin & 2 others v Wafula W. Chebukati & 9 others [2017] eKLR, the Petition had a public and communal object. Its principal relief sought to restrain an allegedly unlawful land administration process, rather than secure an exclusive allocation or advantage for the Petitioners. Page 6 of 9

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Their personal interest as members of the affected community did not negate that broader purpose. 29. The public character of the claim alone does not, however, establish that it was reasonably instituted or responsibly conducted. As recognized in John Harun Mwau & 3 others v Attorney General & 2 others [2012] eKLR, proceedings invoking a public cause may nevertheless be frivolous, vexatious or abusive. 30. Here, the Petition rested on a material mistake concerning the land’s status. Once it was clarified that the impugned process concerned public land, the foundation for invoking the protections applicable to community land was displaced. The Respondents contend that reasonable inquiry before filing would have revealed that position. 31. That criticism deserves weight. A litigant cannot rely on the importance of the asserted cause to excuse an inadequate factual inquiry. The question is whether the error and surrounding conduct justify treating these proceedings as falling outside the protection ordinarily afforded to bona fide public interest litigation. 32. At paragraph 15 of his supporting affidavit, Salah Maalim Alio described the Petitioners as having conflated distinct issues of fact and law and consequently reached an erroneous appreciation of the land regularisation process. That statement does not concede good faith. It is nevertheless consistent with a misunderstanding, whose character must be assessed alongside the purpose of the Petition and the Petitioners’ response to clarification. 33. On that assessment, I am satisfied that the Petitioners acted in the sincere belief that community rights required protection. I discern no established private advantage or ulterior purpose underlying the proceedings. Although greater diligence was called for, the record does not persuade me that the mistaken classification was knowingly advanced or reflected a reckless disregard of the true position. 34. Their subsequent withdrawal supports that conclusion, though its significance should not be overstated. It followed the Respondents’ application and the discharge of the interim orders; it was therefore neither immediate nor effected before substantive participation. Nevertheless, the Petitioners discontinued the claim before substantive hearing rather than persist with its displaced factual premise. I find that the Petition was a bona fide public interest action founded on an honest, though material, misapprehension. Whether the Petitioners should pay the costs of the withdrawn Petition. 35. The Respondents incurred expense in appointing advocates, preparing affidavits and supporting documents, filing an urgent application and attending Court to secure discharge of the interim orders. Their compensatory claim is legitimate. Withdrawal did not extinguish the Court’s discretion to award them costs. 36. Accordingly, Sonko v Clerk, County Assembly of Nairobi City & 12 others [2022] KESC 17 (KLR) is distinguishable. Unlike the circumstances relied upon there, the Respondents here had undertaken substantive work. I reject the Petitioners’ Page 7 of 9

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contention that withdrawal occasioned no meaningful expense or excluded an award of costs. 37. The interim relief obtained also requires consideration. Public interest litigation does not diminish a litigant’s duty of candour when seeking orders without hearing the opposing party. As the persuasive reasoning in Limpopo Legal Solutions and another v Eskom Holdings SOC Limited [2017] ZACC 34 demonstrates, the worthiness of a cause cannot immunize improper litigation conduct. 38. In the present case, however, discharge of the interim orders does not by itself establish that the whole proceeding was dishonest or abusive. I have weighed the material error concerning the land’s status and the expense of obtaining discharge against my finding that the error arose from an honest misapprehension. I am not persuaded that the conduct established warrants removing the protection applicable to this public interest claim. 39. Nor does the separate petition challenging the same allocation notice determine the question. Its existence cannot validate this Petition’s factual premise. Equally, withdrawal does not establish the correctness of every substantive defence, including exhaustion and the legality of the regularisation process. Those questions were not finally adjudicated and need not be resolved indirectly through costs. 40. The decisions in Feisal Hassan & 2 others v Public Service Board of Marsabit County & another [2016] eKLR and Dindi Oscar Okumu v Robert Pavel Oimeke & 5 others [2021] KEHC 3575 (KLR) reinforce the need to assess costs after withdrawal by reference to the nature and conduct of the particular proceedings. Neither withdrawal nor a public interest description supplies an automatic answer. 41. Weighed cumulatively, the mistaken factual premise, the interim restraint and the Respondents’ expenditure favor an award. Against them stand the genuine communal purpose, the absence of an established ulterior motive, the honest character of the mistake and discontinuance before substantive hearing. The Petition’s relatively short duration is relevant to further expense avoided, rather than proof that the expense already incurred was negligible. 42. Under Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR, those circumstances inform the discretion. Applying the constitutional justice consideration in Okoiti & 2 others v Attorney General & 14 others [2023] KESC 31 (KLR), I am persuaded that an adverse costs order in this case would unduly discourage bona fide efforts to protect constitutional rights where a material misunderstanding is subsequently acknowledged through discontinuance. 43. This conclusion neither excuses inadequate inquiry nor denies that the Respondents’ incurred expenses. It reflects the balance required by rule 26 of the Mutunga Rules. The circumstances provide sufficient reason to depart from the ordinary rule that costs follow the event. 44. 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. Page 8 of 9

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45. The Petition having been wholly withdrawn, and the outstanding issue of costs having now been determined, the file is marked as closed. It is so ordered. DATED, SIGNED AND DELIVERED IN GARISSA THIS 1ST DAY OF OCTOBER 2026. DR. OMONDI R. OWINO, FCIArb ENVIRONMENT AND LAND COURT JUDGE DELIVERED VIRTUALLY ON THE TEAMS PLATFORM IN THE PRESENCE OF: Mr. Mohammed Dabar (Court Assistant) Page 9 of 9

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