Advancing Environmental Jurisprudence in Kenya through Strategic

Litigation
Abstract for “Strategic Legal Mechanisms for Delivering Social and Economic
Justice in Africa Conference
Dr Collins Odote, Centre for Advanced Studies in Environmental Law
and Policy (CASELAP), University of Nairobi1
The 2010 Constitution expanded the frontiers for public interest strategic
litigation by relaxing the rules of locus standi. Together with costs, the two
were the greatest obstacles to public spirited individuals and organizations
seeking judicial intervention to better the environment.

Following the adoption of what is celebrated as a transformative and green

constitution, there has greater focus on environmental issues. In addition,
several path-breaking cases have been litigated and determined by the
National Environment Tribunal, The Environment and Land Court and the
High Court of Kenya. Some of thee cases have found their way to the Court
of Appeal and the Supreme Court. The cases have confirmed the right of
every citizen to a clean and healthy environment, the right of public spirited
individuals and organizations to litigate in the public interest, the
framework for public participation, the importance of environmental impact
assessment, the role of the Environment and Land Court and the link
between human rights and environmental rights.

This paper seeks to review some of these landmark cases to determine the
extent to which public interest litigation has taken root in Kenya following
the 2010 Constitution. In doing so it will make the argument that while the
constitution has addressed some of the procedural hurdles to strategic
litigation, there are structural issues, including inculcating a public-spirited
culture amongst the citizenry, that requires to be dealt with. This requires a
relook at the role of the legal academy in supporting strategic litigation
through its training, research and appearance in courts in strategic cases.

1
Collins.odote@gmail.com
Strategic Environmental Litigation (SEL)
Strategic litigation is defined as litigation of a public interest case that has
broad impact to the society beyond the immediate case and specific interests
of the parties involved.2 Strategic litigation is different from Public Interest
Litigation (PIL) which entails suing or litigating on behalf of the whole public
without necessarily the intention of setting precedent on a particular issue.
In addition, in ordinary litigation, lawyers are pushed by clients to do
litigation. SEL is more motivated, seeks to create lasting effects beyond a
specific cases and the ultimate goal is to establish benchmarks and modus
operandi.3 Inasmuch as they differ in context and ultimate goals, both fit
within the bigger picture of pursuing public good on behalf of the general
public.
Environmental Strategic Litigation, from the foregoing, is a process of
bringing lawsuits in support or defense of environmental issues the result of
which would have broad societal impact beyond the particulars and
interests of the parties involved. In essence, SEL seeks to change the law or
how it is applied in a way that will affect the community as a whole. 4 In
other words, SEL is important because of its precedential value. It has also
been referred to as Impact Litigation or Test Case Litigation.
The concept of SEL is an important advocacy as well as environmental
governance tool and strategy. It serves as a catalyst for reform, helps in
raising awareness on particular or wide environmental issues, provides the
judiciary with the opportunity to clarify contested issues of the
environmental law and governance and it ensures that certain norms,
standards, and procedures are upheld in future cases in relation to
environment. Importantly, strategic litigation is necessary for
environmentalism. 5

SEL is underpinned in the Constitution mainly under articles 22, 42 and 70

of the Constitution of Kenya which provide for the right to institute legal
proceedings respecting violation, threat of violation, and infringement of the
right to a clean environment.
The Kenyan judiciary has been and continues to be part of SEL. The
establishment of the Environment and Land Court (ELC) has further
strengthened environmental governance in Kenya. It is therefore important
to investigate how the judiciary has fared so far in regards to protection of

2
Edwin Rekosh, Kyra Buchko & Vessela Terzieva (Editors), ‘Pursuing the Public Interest, A Handbook for
Legal Professionals and Activists’ p. 81–82. Available at
http://www.pilnet.org/component/docman/doc_download/ 35-pursuing-the-public-interest-a-handbook-for-
legal.html). Accessed 29/9/2019
3
Sabine Benzing-Balzer, “Strategic Litigation: An introduction”, Public Affairs Foundation, Public Law
(Columbia University)
4
Id, pg 81
5
Dan Tarlock, The Future of Environmental Rule of Law Litigation: Sixth Annual Lloyd K. Garrison
Lecture on Environmental Law, 17 Pace Envtl. L. Rev. 237 (2000). Available at:
https://digitalcommons.pace.edu/pelr/vol17/iss2/1
environment with a biased focus on landmark test cases that have shaped
environmental jurisprudence in Kenya.

Environmental Test Cases in Kenya: The Decisions of the Judicial and

Quasi-Judicial Environmental Institutions in Kenya

The Constitution and the statutes have established various environmental

institutions that are mandated with decision making over environmental
issues, whether in the context of general administration or dispute
resolution. The jurisprudence that continues to flow from these bodies as a
consequence of various cases decided continues to shape the interactions of
people (both natural and juridical) with the environment. This part will
discuss the various landmark cases on specific environmental issues from
environmental institutions that have influence on environmental matters;
a. Judiciary
Strategic Litigation in environmental issues is by way of petitions, Judicial
Review and appeal application to courts of competent jurisdiction. The role
of the judiciary as an environmental rights enforcement organ cannot be
overemphasized. Article 70 of the Constitution gives the courts, including
Magistrates Courts, the powers to entertain any application touching on
environment and to give any order to;
-prevent, stop or discontinue any act or omission that is harmful to the
environment
-compel any public officer to take measures to prevent or discontinue
any act or omission that is harmful to the environment
-to provide compensation for any victim of a violation of the right to a
clean and healthy environment
Various legislations have restated this constitutional provision including the
Environment Management and Coordination Act,6 Water Act,7 Wildlife
Conservation and Management Act,8 Climate Change Act,9 just but a few. In
issuing any of the orders above, the courts are guided by the principles of
sustainable development, inter and intra generational equity, and public
participation.10
This is the backdrop against which the various landmark court decisions
continue to rest.
6
(1999) as amended by the Environment Management and Co-ordination (Amendment) 2015, No. 5 of 2015
which provides that a person aggrieved by the decision of the National Environment Tribunal(NET) can appeal
to the High Court within 30 days after the determination of the Tribunal.
7
No. 43 of 2016
8
(1985), Revised in 2012
9
(2016),
10
Article 69, Constitution of Kenya 2010
In order to put this into perspective, it is important to look at specific cases,
issues and environmental principles that the courts have had the
opportunity to consider and what the outcome was.
i. The principle of Public participation
Public participation is a constitutional right as well as a principle of good
governance.11 In the case of Mohamed Hussein Haji v Issa Kuno & 4
others (2018), the petition was brought by members of the Ali Jibril area in
Garissa questioning the process of issuance of prospecting licence to a
mining company to carry out mining in their area and that the decision of
Director Mines to issue licence without free, prior and informed consent
infringes on their right to dignity, the right to property, a clean and healthy
environment. The court in quashing the decision of the Director of Mines,
quoting the Bergen Ministerial Declaration on Sustainable Development 12
held inter alia that,
….In my view, development that threatens life is not suitable development
and it must be halted .Environmental measures must anticipate, prevent and
attack the causes of environmental degradation where there are threats of
serious or irreversible damage, lack of full scientific certainty should not be
used as a reason for postponing measures to prevent environmental
degradation.”13
In the Friends of Lake Turkana case, 14 Government of Kenya and Ethiopia
had entered into an agreement for the latter to purchase 500MW from
Ethiopia from the Gibe Dams. Friends of Lake Turkana challenged this
agreement on the basis that there was no public participation and that the
cascade of dams across the Omo River would have environmental impacts to
the downstream communities around Lake Turkana. Agreeing with the
petitioner, Justice Nyamweya ordered that all agreements made between
Kenya and Ethiopia should be made public and that the government takes
the necessary steps and measures to ensure that the natural resources of
Lake Turkana are sustainably managed, utilized and conserved in any
engagement with, and in any agreements entered into or made with the
Government of Ethiopia (including its parastatals) relating to the purchase
of electricity.15
Secondly, cases of poaching have been on the rise in the past decade
especially against the ‘Big Five’ animals with allegations flowing that some of
the trophies confiscated by the government is being sold by the officers of
KWS. In the Petition No. 25 of 2013,16 the petition sought to have an audit
11
Article 10, Constitution of Kenya
12
Ministerial Declaration of the Fifth International Conference on the Protection of the North sea Bergen,
Norway 20–21 March 2002
13
Environment and Land Petition No. 1 of 2018
14
Friends of Lake Turkana Trust v Attorney General & 2 others [2014] eKLR
15
Ibid.
16
Kahindi Lekalhaile & 4 others v Inspector General National Police Service & 3 others [2013] eKLR
done of the ivory stock and other government trophies held by KWS and
other private establishments set up for the conservation of wildlife following
reports that such stock may have illegally found its way into the black
market.17 The court emphasised the right to access to information in the
following terms;
…the right to information is critical to and closely interlinked with the right to
expression and indeed with the enjoyment of all other rights guaranteed
under the Constitution.18
This case is important since it ensures that the right to public participation
cannot be considered as standalone but should be reinforcing and a
precursor to enjoyment of other rights and freedoms especially in regards to
the environment.
ii. Sustainable Development
Centre for Justice Governance and Environmental Action (CJGEA), a civil
society group in Mombasa continues to pursue a case in the Mombasa High
Court whereby Smelter plant Metal Refinery (EPZ) Ltd, a mining company,
has been accused of lead poisoning in Owino Uhuru area (Owino Uhuru
Case), Jomvu slum in Mombasa. The case essentially challenges the
responsibility of the state and non-state actors in the realization of the right
to clean and healthy environment. Studies continue to be carried out to
establish whether or not the lead poisoning is a result of the smelting.
Although the case is ongoing, suffice it to say that, the outcome of the case
would set precedent in respect to the role of non-state actors in upholding
the right of every person to a clean and a healthy environment.
In addition, the case of Amina Said Abdalla & 2 others v County
Government of Kilifi & 2 others,19 the petitioner challenged the decision of
NEMA and the County Government of Kilifi to dump solid and other forms of
waste on their land. They further allege that this activity pollutes the
environment because of indiscriminate burning of wastes which produces
obnoxious and toxic smoke hence rendering the plot and the neighboring
areas unsafe for human habitation. The court agreed with the petitioners
that the Principle of Prevention decrees that protection of environment is
best achieved by preventing harm in the first place rather relying on
compensation or other remedies after such harm has occurred. 20 The
reasoning being that prevention less costly than allowing environmental
damage to occur and then take mitigation measures. 21

17
Ibid, para 1
18
Ibid, para 36
19
[2017] eKLR, Civil case No. 283 of 2016
20
Ibid, para 18
21
Ibid.
This decision is a good law especially since it ensures that all reasonable
measures are taken to prevent all the possible deleterious effects of
development activities on the environment.
iii. Standing
For the longest time, courts had adopted a restrictive approach to locus
standi. The case of Wangari Maathai v. The Kenya Times Media Trust, 22 for
instance, exemplified the rigid requirement that an applicant must
demonstrate concrete injury for them to be granted standing. However in
the subsequent cases, for instance, the case of Republic v. Minister for
Information & Broadcasting and Ahmed Jibril, ex parte East African
Television Network Limited,23 Justice Khamoni stated that the applicant
only needs to demonstrate that they have “sufficient interest” in the matter
and comply with the procedural rules. In the case of Albert Ruturi and
others v. Minister for Finance and Another,24 the judge stated inter alia;
“…..As a part of reasonable, fair and just procedure to uphold the
constitutional guarantees, the right of access to justice entails a liberal
approach to the question of locus standing”
Environmental Management and Co-ordination Act (as amended in 2015)
and the Constitution 2010 codified the relaxed approach that courts had
developed over the years on the questions of standing. These cases have
helped shape environmental jurisprudence as they have allowed first, the
law to change. Secondly, they give the public the latitude to approach the
court to enforce environmental rights and concerns provided in the
constitution within Chapters 4 and 5 of the Constitution.

iv. Private Property vis-à-vis Environmental Conservation.

Courts have also had to interpret EMCA and the provision of the
Constitution in regards to the relationship between the constitutional
guarantee of private property (Article 40) and the conservation of natural
resources. In the case of Park View Shopping Arcade Limited v. Charles
M. Kangethe and Others25 which was a case of private property on a
wetland, the court issued an order to the minister to “ensure the conduct of
a professional and policy assessment” of the land in question “under section
42” of EMCA(1999) which calls on the Minister to issue general and specific
orders, regulations or standards for the management of river banks,
lakeshores, wetlands or coastal zones and such orders, regulations or

22
[1989] KLR 267.
23
Nairobi High Court Miscellaneous Civil Application No. 403 of 1998.
24
[2002] 1 KLR 54
25
Nairobi High Court Civil Suit No. 438 of 2004.
standards may include management, protection, or conservation measures
in respect of any area at risk of environmental degradation.26
This case informed parts of the constitution-making and the law on the
protection of specially important areas such as wetlands, including article
62(1)(g) which provides that specially important areas such as water
catchment areas, protected areas, government animal sanctuaries is public
land and no person should encroach or interfere with them because of their
national, ecological significance.
b. National Environment Tribunal (NET)
i. Public participation in ESIAs
On 26th June, 2019, the National Environment Tribunal (NET) revoked the
license granted to Amu Power Company for the proposed coal power plant in
Lamu.27 The coal plant’s location is about 14 km from Lamu Island, a
famous ancient Swahili settlement and UNESCO World Heritage site and a
top tourist destination.28 Environmentalists and residents of Lamu were
concerned that the plant will pollute the air hence destroying the mangroves
and destroying the breeding grounds for the five endangered marine turtles,
fish and other marine lives.
According to NET, there was no effective public participation in carrying out
the Environmental and Social Impact Assessment (ESIA) because public
participation is an ‘oxygen that gives life to an ESIA report’. NET reasoned
that Lack of public participation was contemptuous of the people of Lamu.
Further, NET cited lack of unclear plans by the proponent to handle toxic
wastes and also the failure to consider the Climate Change Act (2016) in the
design of the project.
This decision, first, reiterates the significance of public participation in
environmental governance. Public participation is an important requirement
for both legal license and social license. Secondly, it serves to remind both
state and non-state actors that public participation is not a necessary evil
but an integral part of good environmental governance. Thirdly, relevant
actors in future would consider on the quality of public participation,
consider the context of projects to inform the kind of decisions to be made
and the technology to be employed to mitigate harm, particularly when
dealing with a fragile ecosystem.

26
Environmental Management and Co-ordination Act(1999), Revised in 2015
27
George Obulutsa, ‘Kenya environmental tribunal suspends coal plant licence, allows fresh study’ Reuters
(June 26th 2019, Nairobi). Available at https://af.reuters.com/article/kenyaNews/idAFL8N23V13Q. Accessed
29th September, 2019/
28
Ibid.