Mulungusi Muthembwa Mutunga v Managing Director, Kenya Wildlife Service & 2 others [2017] eKLR adverse impact on any ecosystem. 24. The petition merely seeks to interfere with the first and second respondents’ lawful exercise of their rights as granted by statute. It also seeks to jeopardize and/or frustrate the first and second respondents efforts to make strides in developing Kenyan’s bio-genetic resources. 25. The petitioner has not demonstrated in what way the agreement between the first and second respondent infringes on his right to a clean and healthy environment, which I am informed by Michi Kirimi and believe it to be true is defined under elements or segments of the environment for recreational, educational, health spiritual and cultural purposes. 26. None of the activities undertaken under the agreement threaten the use of the environment in any way but on the other hand in deed aims at characterizing and preserving it for future generation through research into biological process and how to utilize them. 27. From all the foregoing, I verily believe that the petitioner has failed to demonstrate in what way if at all his rights to a clean and healthy environment have been infringed.” The 2nd Respondent also raised an issue of jurisdiction in view of Article 162 (2) of the Constitution which reserved jurisdiction in environment and land matters to the Environment and Land Court. 19. The matters of fact, wrongly set out in the written submissions by the Counsel for the Petitioner, that “the 2nd respondent conceded to the demands before the petition could be concluded at the hearing and stopped all the works set out in the suit agreement and thereafter left the country” cannot be accepted as evidence by the Court as they were not made on oath in accordance with the law. In any event, the 3rd respondent did not concede the petitioner’s case at all. 20. Accordingly, I do not find that the event which would dictate the award of costs on the principle of costs follow the event is not the withdrawal but the alleged concession by the respondents of the case of the Petitioner, and the decision of the Court in R v. Medical Practitioners and Dentist Board & 3 Ors. ex parte Kenya Hospital Association, supra, is distinguishable in that regard. Even if the same were the case, concession by the 2nd respondent would not bind the 3rd respondent who was not even a party to the agreement between the 1st and 2nd respondents which was the subject of the petition. Public Interest considerations 21. Had this suit been purely a civil case between private citizens for the enforcement of private law rights, the Court would not have hesitated to give the costs to the 3rd respondent as a party who had been brought to court in a suit which is subsequently withdrawn for any reason including the concession by another party to the suit. However, in accordance with the Supreme Court decision in the Rai case, supra, this court must consider whether there petition disclosed a matter concerning public interest litigation. 22. The failure to observe the rules for notice of the withdrawal of petitions under Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 must be excused by the overriding imperative of the principle of costs in constitutional Bill of Rights litigation set out in Rule 26 (2) thereof that“26. (2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental http://www.kenyalaw.org - Page 9/11