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

1
Collins.odote@gmail.com
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.

Context
Strategic Litigation
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 important because it establishes precedent, it sets standards and
establishes modus operandi. It has both practical and symbolic value. The practical
value is the rights and obligations recognized or assigned to either party. 3 The symbolic
value refers to the message the decision sends to the society at large as to which
principles and values are treasured.4

Many environmental contestations continue to arise at the international level. These

debates, which would definitely continue to shape the trajectory of environmental
jurisprudence in Kenya, include whether human rights are environmental rights and
vice versa. Environmentalists have argued that environmental rights are human right
because people’s livelihoods, health and sometimes their very existence depend upon
the quality of and the access to the surrounding environment. 5

In addition, policy challenges abound due to the complexity of the nature of

environmental rights. This a times has pitted rights against each other hence raising
questions around privileging certain rights over others. Again, in many of the cases,
private individuals are asserting public rights 6 while governments (through lenient
regulation and licensing) facilitate private gain. The efforts of private individuals to sue
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
Monica Roa & Barbara Klugman, ‘Seeking Social Change in the Courts’ Women’s Link Worldwide. Methodology
Workbook. Available at https://www.womenslinkworldwide.org/en/files/3043/seeking-social-change-in-the-courts-
tools-for-strategic-advocacy.pdf, accessed 17/1/2020
4
Ibid.
5
Friends of the Earth International (FOEI) and others have advanced this argument.
6
G. La Forest, ‘Water Law in Canada- The Atlantic Provinces’ (Ottawa, 1973), at 178. Although written in the
context of public rights arising from navigable rivers, the definition is more generally applicable. According to
Forest, by public rights is not meant rights owned by the government but are those vested in the public generally,
rights that any member of the public may enjoy.
in order to vindicate public rights continues to place strategic litigation at a pivotal
point as an avenue to unpack ingredients (by courts) that make up various
environmental rights.

Historical Antecedents
Initially, there was low level appreciation and focus on the use of law for vindicating
public interest in environmental matters. Customs, culture and traditional ways of life
of communities were used to protect environmental endowments within a particular
community. However, with growing environmental activism and environmentalism at
the international level and amongst various groups including the judiciary,
Environmental Strategic litigation, emerged. This process entails 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. Despite the
precedence, there is still much less reliance on strategic litigation for purposes of
shaping environmental law and as a tool for societal change.

The story of environmental protection and litigation in Kenya cannot be complete

without the contributions and struggles of Wangari Maathai. Wangari Maathai’s efforts
to protect public interest and the courts’ responses at the time, showed prohibition of
Public Interest Environmental Litigation and Strategic Environmental Litigation. The
office of the Attorney General was the only institution that had locus standi to institute
or terminate proceedings on behalf of the public for purposes of preventing public
wrongs. The place of a private individual was not envisaged by law and so did the
courts.

Nowhere was this evident than in the cases of Wangari Maathai v Kenya Times Media
Trust Limited ( Civil Case No. 5403 of 1989) and Wangari Maathai & 2 Others v City
Council of Nairobi & 2 Others (Civil Case No. 72 of 1994). In the former, Justice N.
Dugdale held,

“The plaintiff has strong views that it would be preferable if the building of the complex
never took place in the interests of many people who had not been directly consulted. Of
 course many buildings are being put up in Nairobi without many people being consulted.
Professor Wangari apparently thinks this is a special case. Her personal views are
immaterial. The Court finds that the Plaintiff has no right of action against the defendant
company and hence she has no locus standi”
Justice Ole Keiwua J, in the latter reasoned,

“... In the present case, the transgression of those limits inflicts no private wrong upon these
plaintiffs and although the plaintiffs, in common with the rest of the public might be interested
in the larger view of the question yet the constitution of the country has wisely entrusted the
privilege with a public officer, and has not allowed it to be usurped by private individuals. That
it is the exclusive right of the Attorney General to represent the public interest even where
individuals might be interested in the larger view of the matter. It is not technical, not
procedural, and not fictional. It is constitutional.”

Wind of Change
The foregoing cases and the stare decisis conceived therefrom formed the basis for the
subsequent culmination of efforts to do away with restricted right to seek redress in
courts by individuals and the requirement to demonstrate personal injury or loss.
Besides other fundamental reasons, the realization that the environment is a common
heritage of mankind and that every person has a duty to protect it and use it
sustainably, motivated various stakeholders to seek for expanded standing in courts
and not to require litigants to demonstrate personal harm or prejudice. These had
become huge impediments in enforcement of environmental rights.

Environmental advocates, owing to unfair legal provisions and court rulings, sought to
change the law to allow every citizen the right to approach the court to complain on
behalf of the public. The following happened in the years that followed;

Enactment of Environmental Management and Co-ordination Act (1999)

Section 3(3) and 3(4) of EMCA reversed the precedent established under the Wangari
Maathai cases above. Section 3(3) provides that every person who alleges that their
right to a clean and healthy environment has been, is being or is likely to be
contravened, may apply to the High Court (Now Environment and Land Court) for
redress and the High Court shall make appropriate order. Sub-section 4 relieves the
complainant of the burden to prove that the defendant’s action have caused or likely to
cause personal loss or injury to the former.

Adoption of strategic mechanisms by environmental advocates and activists

Wangari Mathai and court cases, green belt empowerment and street protests
The rulings rendered in the cases discussed above were the precursors for change that
was to come. Wangari Maathai never relented in her struggle to secure crucial
environmental resources and services. Founded in 1977, the Green-Belt Movement, for
instance, was formed to promote environmental conservation, to build climate
resilience and to empower communities especially women and girls, and to plant trees. 7
Wangari also led street protests to protect the environment, including the protests she
led in January 1999 where police beat up her and other protestors as they attempted to
plant trees in Karura Forest. These heroic efforts saved many public forests which were
being appropriated for private and commercial interests.

Environmental Awareness Campaigns

Various environmental campaigns have been conducted to educate the public on
conservation and the significance of environmental management and protection, tree
planting, among others. These has been done mainly through mainstream media and
social platforms. Environmental studies have also become part of the school curriculum
in primary and secondary schools. These has ensured that all members of the society
begin to appreciate the importance of conservation and protection of the environment.

International solidarity
Collaborating with international environmental agencies to build synergies, to promote
learning and build a sense of comradeship in the environmental protection has also
helped raise awareness beyond international borders. Access to online resources in
form of best practices, case laws, treaties and conventions, and success stories in various
contexts across the globe has helped set standards and increased awareness amongst
many environmental advocates. In addition, international solidarity has ensured that
7
http://www.greenbeltmovement.org/
well-established international organizations help in terms of capacity building of local
organizations through training, funding, and working together.

Media publicity
The media, including social media, continues to be ideal platforms to disseminate and
receive information. Environmental awareness events, protests, court cases have been
highlighted in the media. This has helped raise awareness, generate interest around
critical environmental issues and has helped in mobilization and calls for action by
members of the public.

Judicial Colloquium and training

The members of the Bench hold annual colloquiums and have undergone trainings to
gain knowledge in order to appraise themselves on the best practices on environment
globally. This is important owing to the need to develop local jurisprudence that is
unique to our contexts. Training instils environmentalism even among the members of
the bench because environmental cases are sui generis in nature and therefore
developing a broad and multidisciplinary mind in the application of the law is
important for judges and magistrates, including members of quasi-judicial bodies such
as the National Environment Tribunal.

Progressive Court Decisions

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
Courts have endeavoured to advance environmental jurisprudence through progressive
decisions which continue to be quoted in many subsequent cases. In a bid to develop
the local jurisprudence on environment, these cases have established pertinent
principles some of which have been incorporated into national laws. These court
decisions have revolutionized the following issues;

a. Standing
The case of Wangari Maathai v. The Kenya Times Media Trust, 8 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, 9 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,10 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”

b. Private Property vis-à-vis Environmental Conservation

In the case of Park View Shopping Arcade Limited v. Charles M. Kangethe and Others 11
which was a case of a 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 “in accordance with section 42” of EMCA(1999) . This section calls on the
Minister to issue general and specific orders, regulations or standards for the
management of river banks, lake shores, wetlands or coastal zones and such orders,

8
[1989] KLR 267.
9
Nairobi High Court Miscellaneous Civil Application No. 403 of 1998.
10
[2002] 1 KLR 54
11
Nairobi High Court Civil Suit No. 438 of 2004.
regulations or standards may include management, protection, or conservation
measures in respect of any area at risk of environmental degradation. 12

This case has informed the law on protection of specially important areas such as
wetlands, including, informing the content of article 62(1)(g) of the Constitution 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.

c. The Right to a clean environment versus Right to Life versus Sustainable

Development
In the case of Peter K. Waweru v Republic, 13 the judges observed that the right to life is
not just a matter of keeping body and soul together. According to the court, in this
modern age, that right could be threatened by many things including the environment.
Turning to the issue of sustainable development, the court held that,

“…at this time and age no development is valid which cannot answer the requirements of
sustainable development.”14

Sustainable development has been defined as development that meets the needs of the
present without compromising the ability of the future generations to meet their own
needs.15

Constitutional Change
The promulgation of the Constitution 2010, first, repealed the 1969 Constitution.
Secondly, the 2010 Constitution under the transitional provisions required that all
statutes in place before 2010 should be amended to be in line with the spirit, values and
principles under the 2010 Constitution. This in effect meant that all laws inconsistent
with the Constitution 2010 were either declared unconstitutional by courts or repealed,
or amended by parliament.
12
Environmental Management and Co-ordination Act(1999), Revised in 2015
13
Misc. Civil Appli. No. 118 of 2004 eKLR
14
Ibid.
15
Bruntland Report, “Report of the World Commission on Environment and Development: Our Common Future”
(1987). Available at https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf,
accessed 18/1/2020.
The Promise of the 2010 Constitution
The Constitution continues to be celebrated as a progressive and a green Constitution.
Article 42 recognizes the right to a clean and healthy environment. This right, which is
related to right to life as evident from the Peter Waweru Case, was missing in Chapter
V of the 1969 Constitution under Fundamental Rights and Freedoms of an individual.
The Constitution also under Article 10 considers sustainable development as a value
and principle of governance. The Preamble also lays bare the commitment the country
ought to make in the respect for the environment for the benefit of the future
generations.

Article 69 assigns specific obligations to the state in respect to the environment. The
state shall ensure sustainable utilisation, exploitation, management of the environment
and natural resources; protect genetic resources and biological diversity; eliminate
processes and activities that are likely to endanger the environment. Importantly, every
person has a duty to cooperate with State organs and other persons to protect and
conserve the environment and ensure ecologically sustainable development and use of
natural resources.16

As early as 1977, the Court of Appeal in England attempted to relax the law on standing
but the House of Lords resisted this by electing to adhere to the precedent laid down in
the case of Boyce v. Paddington.17 The court in the latter reasoned;

“..A private plaintiff has locus standi to sue for injunctive relief in respect of a matter of public
importance where (1) the interference of the public rights also involves interference with his
private rights. Or where (2) the impugned action also causes him “special damage”.”

This position, which was part of law in Kenya during the Wangari Maathai cases, has
since been abandoned after the Constitution 2010 came to force in August 2010.

16
Constitution of Kenya 2010, Art. 69(2)
17
[1903] 1 Ch 109
The Constitution under article 70(3) provides that an applicant who alleges that their
rights under article 42 has been or is likely to be violated does not have to demonstrate
that “any person” has incurred loss or suffered injury. This is a fundamental relaxation
of the rule of locus standi away from personal injury or loss.

Courts and Strategic Litigation in Kenya.

The Constitution under article 48 bestows on every Kenyan the right to access to justice.
Coupled with articles 22, 42, and 70, access to courts has provided an opportunity to
every Kenyan to vindicate their rights before the courts of law. Despite this reprieve
provided by the Constitution 2010, Public Interest Litigation has been a challenging
path. However, it is now considered one such avenue to seek justice, including when
the environment is threatened.

Another significant convening happened in 2002 in Johannesburg, South Africa. The

Global Judges Symposium brought the members of the judiciary from across the world,
where it was determined that a programme of work was needed to prepare the
judiciary and other governmental and nongovernmental actors to perform their work in
furtherance of the environmental protection. This has seen the publication of various
texts to help the judiciary to address environmental disputes. A number of publications
(mostly by UNEP) have been done to that effect. They include the following;

 Judicial Handbook On Environmental Law (2004), UNEP

 Training Manual of Environmental Law, UNEP and “Compendium of
Summaries of Judicial Decisions in environment-related cases, Selected Texts of
Legal Instruments in International Environmental Law.” This manual is
periodically revised to keep to speed with new developments in the
environmental law in the world.
In order to give environmental disputes the necessary attention, the Constitution 18
establishes the Environment and Land Court to determine disputes relating to land and

18
Constitution 2010, Art. 162(2)
environment and to facilitate the just, expeditious, proportionate and accessible
resolution of disputes.19 The Court regulates its own procedure and any proceedings
before it cannot be amenable to strict rules of evidence. 20

Notable Cases
a) The Friends of Lake Turkana Case
In the Friends of Lake Turkana case, 21 Government of Kenya and Ethiopian
Government 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
relating to the purchase of electricity.22

b) The Mui Coal Basin Case23

The members of the Mui community challenged the prospecting for and extraction of
coal deposits in Mui Basin in Kitui County. Among the issues the petitioners raised
were threats to their right to a clean and healthy environment, the right to information,
whether the project is sustainable and the integrity of the EIA process. 24 The court,
while appreciating the challenges related to conducting proper public participation
process held inter alia that,

19
Sec. 3, Environment and Land Court Act (2011)
20
Ibid, sec. 19
21
Friends of Lake Turkana Trust v Attorney General & 2 others [2014] eKLR
22
Ibid.
23
Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015]
eKLR (Constitutional Petition No. 305 of 2012)
24
Ibid, para 79
94. “………We agree and echo this rationale that public participation can be facilitated in
different ways; each circumstance is different and hence how to facilitate this is open to
innovation. However, it must be well documented and clear records kept.”

As to how sufficient public participation is measured, the court held;

96. “………….we agree with the test applied in the Merafong Demarcation case and state
that, the method and degree of public participation that is reasonable in a given case depends on
a number of factors, including the nature and importance of the issue at hand and the intensity
of its impact on the public.”

On the right to a clean and healthy environment, the court held that inasmuch as coal
mining is acknowledged worldwide as one of the most environmentally-damaging
activity; that is not self-defining reason not to concession its mining. According to the
court, there is need to create a balance between utilization of natural resources so that
they spur economic growth, on one hand, and the need to manage the use of the
environmental resources so that they do not generate unsustainable levels of pollution
or waste or unjustified adverse effects on the health of humans25 on the other hand.

c) Mohamed Hussein Haji v Issa Kuno & 4 others (2018)26

The petition was brought by members of the Ali Jibril area in Garissa County
questioning the process of issuance of prospecting licence to a mining company to carry
out mining in their area. According to the petitioners, the decision of Director of Mines
to issue a licence without free, prior and informed consent infringed 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 Development27 held inter alia that,

“….In my view, development that threatens life is not suitable and it must be halted.
Environmental measures must anticipate, prevent and attack the causes of

25
Ibid, para. 120
26
Environment and Land Petition No. 1 of 2018
27
Ministerial Declaration of the Fifth International Conference on the Protection of the North sea Bergen, Norway
20–21 March 2002
 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.”28
This case turned on the incessant question that the Bruntland Commission was asking
itself in 1987; how do the economy and the ecology balance today?” Should one be
sacrificed for the benefit of the other? The courts, as evident from the decision above,
have suggested that since both are important, none should be trumped on by the other.

d) Mohamed Ali Baadi & Others Vs AG29

This case arose out of the Lamu Port-South Sudan Ethiopia Transport Corridor Project
(LAPSSET). The petitioners who are residents of Lamu County alleged that the Lapsset
project was designed and implemented in violation of the Constitution and
environmental laws, including EMCA (1999). The residents were apprehensive that the
project had irrevocable environmental, economic and cultural impacts. Besides, the
petitioners alleged that the design of the project violated their constitutional right to a
healthy and clean environment, to earn a livelihood and the right to information. On the
adequacy of the ESIA process, the court held that failure to consider external costs of
the projects, policies, plans and programmes associated with the LAPSSET Project and
its associated infrastructure rendered the ESIA process procedurally inadequate. 30

The right to a clean and healthy environment cannot be dissociated from other basic
and fundamental rights such as right to life. According to the court, while invoking the
extension of rights doctrine; the right to life includes the right to live with human
dignity and all that goes along with it. 31 Fundamental rights weave together a pattern of
human rights guarantees that are not mutually exclusive and distinct. 32

e) Save Lamu and others Vs NEMA and AMU Power Plant (NET 196 of 2016)
The crux of this decision revolved around the question of public participation in ESIAs.
On 26th June, 2019, the National Environment Tribunal (NET) revoked the license
28
Environment and Land Petition No. 1 of 2018
29
 Petition No. 22 of 2012 (April 30, 2018) High Court of Kenya at Malindi
30
Ibid, para. 197
31
Ibid, para. 282
32
Ibid.
granted to Amu Power Company for the proposed coal power plant in Lamu. 33 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. 34 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’ without which the report is null and void.
NET reasoned that, Lack of public participation was contemptuous of the people of
Lamu. Further that failure to consider public voice in the preparation of ESIA process
makes the ESIA report an academic document. Further, NET cited lack of unclear plans
by the proponent to handle toxic wastes and also failure to consider the Climate Change
Act (2016) in the design of the project.

Emerging Jurisprudence
With the continued recognition that sustainable development is directly linked with
enjoyment of fundamental human rights, courts are keen to uphold the balance the two
whenever there are contestations. In the Kenyan context, the case of Peter K. Waweru
has exemplified this balancing process. In addition, in the case of Mohamed Hussein
Haji v Issa Kuno & 4 others35 above, the court in explicit terms held that development
that threatens life is not suitable development and it must be halted. Essentially,
development that benefits people must not sacrifice the essential fundamentals of
human well-being. Suffice it to say that, in any event, the courts have stood up against
development activities that pose threats to the enjoyment to basic human rights and
freedoms.
33
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/
34
Ibid.
35
Environment and Land Petition No. 1 of 2018
Secondly, with changes in the law with regards to questions of standing and the
requirement to demonstrate personal prejudice, jurisprudence continues to build due to
agency of citizens, public spirited individuals through public interest cases. The
enactment of various laws, such as the Legal Aid Act (2016) and Access to Information
Act (2016) has enabled citizens to seek legal advice and to build their cases before
approaching courts of law.

Importantly, the judiciary continues to be innovative in terms of granting reliefs to

litigants in the exercise of their enforcement function in accordance with Article 23 of
the Constitution. Courts have also adopted inquisitorial approaches in environment
cases (away from adversarial system of the Kenyan jurisdiction).Judges in certain cases
have conducted site visits. For instance, in the case of Mohamed Ali Baadi & Others Vs
AG above, the High Court conducted a site visit to Lamu to assess the areas affected
and the impacts complained.

Furthermore, the courts have also issued innovative orders like continuing mandamus.
In the case of Save Lamu & 5 others v National Environmental Management Authority
(NEMA) & another [2019], the National Environment Tribunal asked NEMA to
undertake a fresh EIA study if they wish to pursue the construction and operation of
the Coal Power Plant Project in Lamu. This order, while halting the construction, was
continuous for as long as the project proponent did not undertake to repeat the EIA
process. Lastly, in terms of applying the relevant environment laws, the courts have
adopted a broad and a purposive interpretation. A good example is the expansion of
the substantive meaning of the right to life to encompass broader matters of social and
economic empowerment and human dignity, as discussed at length in the Peter
Waweru case.

Challenges
The process of shaping the environmental jurisprudence through Strategic Litigation
continues to face a number of challenges including the following;
Lack of adequate scientific support for Strategic Environmental Litigation processes
Expert opinions in environmental cases are necessary for courts to understand the
scientific angle of the facts of each case. Secondly, primary studies undertaken such as
chemical analysis, medical evidence, field agents’ testimonies, among others, are often
needed to make a case for or against facts in issue. When problems of uncertainty have
arisen, the law has in some instances followed science and denied relief when a causal
relationship could not be stablished. 36 This is coupled with the fact that, as compared to
the law which seeks to establish a causal relationship there and then for purposes of
arriving at decision, science holds the view that it may take many years to develop
acceptable theories of causal relationships when complex systems are being described. 37

A reducing public interest focus and spirit on environmental issues

The focus and the spirit needed for public interest litigation is fast dwindling with a few
individuals and institutions willing and ready to conduct public interests litigation to
protect or enforce private rights. Sometimes litigants have slapped with huge costs and
this subsequently serves to discourage litigation on important environmental issues.

Politicization of the Judiciary- debate about role of judiciary in stopping development

through issuance of injunctions
The inability of government functionaries to deal with the judiciary under the current
constitutional arrangement, has led to unwarranted anger towards the judiciary. The
judiciary has in the past clashed with other arms of government especially the executive
in what the former considers as anti-development court injunctions in reference to
government projects.

The Standard Gauge Railway is one such project that has faced legal hurdles over its
environmental impacts. A number of court orders were issued to challenge the design,
the route and environmental impacts of the project. Most telling of all was the
36
Marcia Gelpe, “The Uses of Scientific Information in Environmental Decision Making” (1974) Faculty
Scholarship. Paper 145, 387. Available at http://open.mitchellhamline.edu/facsch/145, accessed 22/1/2020
37
Ibid, 388
injunction against the construction of elevated railway across Nairobi National Park.
The construction proceeded despite a pending injunction by the National Environment
Tribunal issued in September 2017.

These contestations led to an introduction of a bill to the National Assembly in 2019.

The Bill seeks to have all court orders on matters of national importance subjected to
parliamentary approval.

Lessons Learned
i. An enabling Constitution and Law, while necessary not sufficient for strategic
environmental litigation to take root.

ii. Courts voice in environmental justice, however small and far between, critical for
environmental consciousness and sustainability.

iii. Strategic Environmental Litigation should take a long –term and multifaceted
view and approach- Wining is losing and losing is winning at times.

iv. Need for continued innovation in strategies and approaches.

v. Role of Academy both as amicus curiae (lessons from Uganda) and in teaching
instructions