Mulungusi Muthembwa Mutunga v Managing Director, Kenya Wildlife Service & 2 others [2017] eKLR 3. In constitutional litigation, the principle of access to the court must, consistently with the public importance and interest in the observance and enforcement of the Bill of Rights in the Constitution, override the general principle that costs follow the event, unless it can be shown that the petition was wholly frivolous, or that petitioner was guilty of abuse of the constitutional court process by say filing a constitutional petition on matters that do not raise purely constitutional issues and which properly belonged to other competent courts or tribunals, and which should, therefore, have been filed and competently disposed of by those other courts or tribunals. However, a petitioner for constitutional enforcement need not present a case that must succeed and it cannot be taken against him that his petition is eventually lost if it otherwise meets the public interest criteria. Although developed in the realm of protection and enforcement of rights and fundamental freedoms, the principle applies with the same force in general constitutional litigation for interpretation and enforcement of the Constitution. Indeed, the rights of access to court under Article 22 and 258 of the Constitution for the enforcement, respectively, of the Bill of Rights and the other parts of the Constitution are in the same terms. On the facts of this case 16. Specifically at paragraphs 20-22 of the Replying Affidavit sworn on 15th December 2010, the 3rd respondent set out his case as follows:“20. That I am informed by the 3rd respondent advocate on record on information I believe to be true that as per the above stated foregoings, he Petitioner has prematurely brought this petition against eh 3rd Respondent. 21. That I know of my own knowledge that in the instant case no complaint has been filed by the petitioner before the complaints commission as required by section 32 and 33 of the Environmental Management and Coordination Act No. 8 of 1999 against the said project and or the alleged agreement. 22. That from the foregoings it is clear that the 3rd Respondent is being dragged into a matter to which it was not privy to as the 3rd respondent was never a party to the agreement between the 1st and 2nd respondent herein.” 17. It is clear that the 3rd respondent had a substantive defence to the petition. However, it is not for the court to determine the respective merits of the parties cases at this stage as the Petition has already been withdrawn and the court has not had heard arguments in the matter. It also cannot be said, as urged by the Petitioner, that the withdrawal of the petition was the result of a concession by the 2nd respondent as the Consent for the withdrawal by letter dated 16th March 2012 merely notified, without giving reasons therefor, the fact of agreement to mark as settled and withdrawn the Petition as follows: “By Consent, the Petitioners Petition dated 5th October 2010 against the 2nd respondent MANAGING DIRECTOR NOVOZYMES A/S be and is hereby marked as settled and withdrawn as against the 2nd Respondent Managing Director Novozymes A/S.” 18. Indeed, in his replying Affidavit for the 2nd Respondent, the Vice-President of Novozymes A/S, Ole Kirk, sworn on 27th January 2011 sets out its defence to the petition at paragraphs 23 - 26 as follows: “23. There is no loss and damage to be suffered by the petitioner in particular or by any Kenyan at all. The benefits that are to accrue to collection of samples of dung produced by wild herbivorous animals cannot result in any loss and/or damage as alleged by the petitioner as the same is biodegradable waste. The making use of microbial diversity from Kenyan wildlife protected areas does not have an http://www.kenyalaw.org - Page 8/11