Mulungusi Muthembwa Mutunga v Managing Director, Kenya Wildlife Service & 2 others [2017] eKLR freedoms.” 23. This Court would infringe on the directive in the said rule to ensure every person access to court for determination of their rights and fundamental freedoms. The counter-part of the rule as regards court fees in Bill of Rights litigation, that is the directive of the Constitution to the Chief Justice under Article 22 (3) that in making rules for the exercise of the Bill of Rights jurisdiction, His Lordship must satisfy the criteria, among others, that “(c) no fee may be charged for commencing the proceedings”, is instructive of the basic principle for access to justice by enforcement of the Bill of Rights. 24. In seeking to have the Agreement the subject of the Petition nullified, the petitioner was enforcing a right to protection of the environment for his own benefit and the benefit of the Public with whom he shared the environment. It is not a purely private claim for which the general rule that costs follow the event should be strictly applied. That he may have wrongly joined the 3rd respondent or approached the wrong court forum are matters which could only properly have been determined at the hearing of the petition and this court cannot make that determination now so as to make it the basis for its decision on costs. The petition having been withdrawn, the determination cannot be made without submission by the parties in that behalf. 25. From the pleadings and affidavits before the Court, even without deciding he merits of the case, I have not been persuaded that in filing the suit, the petitioner had no reasonable cause of action against the 3rd respondent or that the petition was frivolous or otherwise abusing the process of the court so as to deny him the protection of public interest consideration in the order on costs. 26. On the question of jurisdiction of the Court, I respectfully note the decision in Patrick Musimba v National Land Commission & 4 Others [2015] eKLR, where a five-Judge bench of this Court and the Environment and Land Court (E&LC) held as follows: “Concurrent and coordinate jurisdictions 65. The above analysis lead us to the conclusion that both the High Court and the ELC Court have a concurrent and or coordinate jurisdiction and can determine constitutional matters when raised and do touch on the environment and land. Neither the Constitution nor the ELC Act limit the High Court’s jurisdiction in this respect….” 27. The decision on costs herein therefore rests not on the perceived merits of the parties’ cases but on the nature of the claim, which, as public interest litigation, generally attracts, in accordance with the caselaw authorities, no award of costs. CONCLUSION 28. The matter before the Court was a public interest litigation for which costs should not generally be granted so as not to hinder litigation on enforcement of the Constitution in accordance with the principle of the Rule of Law and Constitutionalism. Had the matter been a regular civil suit, purely governed by the provisions of the Civil Procedure Act, the Court would have employed the general rule that costs follow the event and accordingly awarded costs to the respondents sued in the withdrawn petition without their concurrence or concession. 29. In this Petition, the public law element of public interest in the protection of the environment is a good reason for departure from the general rule on costs. The validity of the reason for departure is not vitiated by reasonable defences to the petition by the respondents, or indeed any eventual loss of the http://www.kenyalaw.org - Page 10/11