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Tending Towards Greater Eco-Protection in Kenya: Public Interest Environmental Litigation and Its Prospects Within the New Constitutional Order

Published online by Cambridge University Press:  28 January 2013

Brian Sang YK
Rights & Permissions [Opens in a new window]

Abstract

Kenya's 2010 Constitution has inaugurated into the Kenyan legal framework, among other things, express constitutional recognition of the right to a clean and healthy environment. The constitutionalization of this right and the establishment of liberal provisions for the institution of judicial proceedings in the event of its infraction bear significant implications for public enforcement of environmental rights in Kenya. Hitherto, this was based on the restrictive interpretation of locus standi premised on the principles of common law. This article focuses primarily on public interest environmental litigation in Kenya. It analyses judicial treatment of public interest action for environmental claims in the past and proffers some insights on the prospects for such action under Kenya's new constitutional order. It argues that, with the provision of an explicit and permissive constitutional basis for public interest environmental litigation, it is reasonable to conclude that Kenya is tending towards greater eco-protection.

Information

Type
Research Article
Information
Journal of African Law , Volume 57 , Issue 1 , April 2013, pp. 29 - 56
Copyright
Copyright © School of Oriental and African Studies 2013

INTRODUCTION

“We the people of Kenya - [r]espectful of the environment, which is our heritage, and determined to sustain it for the benefit of future generations: [a]dopt, enact and give this Constitution to ourselves and to our future generations.”Footnote 1

On 27 August 2010, Kenya's president promulgated a new constitution which subsequently entered into force. This was a watershed for Kenya: the culmination of the tenacious agitation and dogged activism of several actors, particularly within civil society, for broad-based reforms.Footnote 2 This constitution establishes a new order where rights and duties are significantly expanded. Among other welcome innovations, it has inaugurated into the Kenyan legal framework explicit constitutional recognition of the right to a clean and healthy environment,Footnote 3 permissive provisions for access to justice,Footnote 4 and the express right for all persons to enforce the rights guaranteed in the Bill of Rights.Footnote 5 Moreover, it represents Kenya's most substantive indication yet of its compliance with principle 1, paragraph 6 of the Stockholm Declaration of 1972, which requires the inclusion of environmental rights as fundamental rights in national constitutions.Footnote 6 Hence, in comparison with its predecessor, the 2010 Constitution represents a progressive development of no mean proportions, since the former neither proffered any express mention of environmental rights nor made as permissive a provision for access to justice and the enforcement of constitutional rights.Footnote 7

The lack of an express provision in the repealed constitution for these rights contributed, in large part, to the frustration of environmental action instituted by public-spirited individuals or non-state entities;Footnote 8 they were held not to meet the requisite threshold of proximate harm and/or loss from the impugned conduct. Indeed, a large proportion of the public interest environmental litigation instituted under the repealed constitution was rendered unsuccessful, inter alia, on grounds of the applicants' lack of locus standi [right or capacity to bring an action].Footnote 9 The enactment of the Environmental Management and Coordination ActFootnote 10 (EMCA) ameliorated the situation somewhat. Unprecedentedly, it proffered an express legislative basis for the right to a clean and healthy environment, and a permissive right of access to court in enforcing this right.Footnote 11 With the 2010 Constitution in effective force, this article considers the likely prospects for public interest environmental litigation under Kenya's new constitutional order.

PUBLIC INTEREST LITIGATION AND ENVIRONMENTAL PROTECTION

The concept of public interest litigation

Before proceeding to analyse the judicial treatment of public interest environmental litigation in Kenya, it is important to clarify the concept of public interest litigation. The phrase “public interest” indicates the common well-being of the public in general or public welfare, while the word “litigation” refers to the action and process of initiating or defending a contested legal claim with a view to enforcing a right or seeking a remedy for an alleged violation.Footnote 12 Thus, public interest litigation refers to the institution by public-spirited individuals, interest groups or communities of legal proceedings in order to enforce the public interest.Footnote 13 Public interest litigation is also known as social interest litigation or cause litigation, and has featured prominently in respect of environmental and social grievances affecting the general welfare of the public. It has also been instrumental in the broader process of foregrounding the rights of, and asserting affirmative action in respect of, vulnerable groups in society.Footnote 14

Notably significant in public interest litigation is its manifest departure from the restrictive notion of locus standi under classical common law, according to which the right to seek an actionable remedy from the courts resides only with those persons who have suffered or are likely to suffer as a result of the impugned conduct.Footnote 15 The restrictive common law position on the grant of locus standi to institute judicial proceedings is illustrated in Gouriet v Union of Postal Office Workers (Gouriet) where the court held, inter alia, that:

“The jurisdiction of a civil court to grant remedies in private law is confined to the grant of remedies to litigants whose rights in private law have been infringed or are threatened with infringement. To extend that jurisdiction to the grant of remedies for unlawful conduct which does not infringe any rights of the plaintiff in private law is to move out of the field of private law into that of public law with which analogies may be deceptive and where different principles apply.”Footnote 16

In contrast with the restrictive common law position, public interest litigation provides far more expansive avenues for litigants not directly affected (adversely) by the impugned conduct to institute judicial proceedings. Accordingly, public-spirited applicants are deemed to be sufficiently competent (in procedural terms) to bring applications before the courts seeking to enforce certain rights or redress certain violations, where that enforcement or redress is in the interest of the general public.

Public interest litigation and environmental claims

As with democracy-oriented and human rights claims, public interest litigation has also been instrumental in enforcing environmental rights.Footnote 17 As early as the 1970s, opinion was already developing on the need to reassert participatory governance and citizen initiative in environmental management.Footnote 18 Public interest environmental litigation has since gained firm grounding in an increasing number of jurisdictions.Footnote 19 Significant aspects which make public interest litigation suitable for environmental protection are its shift of emphasis from private to public rights, and the diminished relevance of the applicants' demonstration of direct harm.Footnote 20 Environmental despoliation often engenders injury of such general nature that it becomes unreasonable to expect that only those directly affected have locus standi to institute an actionable claim in respect of the alleged harm. To remedy this, public interest litigation focuses less on the applicants' identity and more on the subject matter of the action.Footnote 21 Hence, public interest environmental litigation broadens the avenues for accessing justice in respect of the “vindication of the public interest in a healthy and secure environment.”Footnote 22 The next section examines the Kenyan courts' approaches in respect of locus standi in public-interest environmental claims.

LOCUS STANDI, AN INCONSISTENT INTERPRETIVE APPROACH AND THE STRICTURES OF COMMON LAW

Like most African states with legal orders of British provenance, Kenya adheres to the tenets and traditions of common law.Footnote 23 Accordingly, most procedural rules meant to give effect to substantive legal provisions are largely based on common law. Of present interest are the procedural rules on access to court which proffer mechanisms through which actionable meaning is given to substantive environmental provisions. One such mechanism is locus standi which refers to the procedural capacity to litigate in court. The common law position on locus standi requires prospective applicants to have a personal relationship with, or a proprietary interest in, the subject-matter of the suit. This reflects the notion espoused in Gouriet, according to which a cause of action arises from the private rights and entitlements of an individual or a group of individuals.Footnote 24 In Gouriet, the court emphasized that the only admissible exceptions were those arising from representative suits or a “relator” action.Footnote 25

Hence, the common law position on locus standi is restrictive regarding the determination of procedural competence to litigate: it imposes a high threshold of proximate interest in, or relationship with, the subject matter of the relevant claim.Footnote 26 For a long time the strictures of the common law rule on locus standi impeded successful actions regarding public interest environmental claims in Kenya.Footnote 27 In most instances, the courts were loath to uphold private action seeking to enforce public interest environmental rights, and their rulings exhibited great reluctance to recognize that such rights vest in private persons.Footnote 28

Particularly illustrative is the interpretation of locus standi adopted in Wangari Maathai v Kenya Times Media Trust Footnote 29 (Wangari Maathai). The applicant sought, on her own behalf, to restrain the respondent from constructing a proposed complex in a recreational park in Nairobi.Footnote 30 Relying on the restrictive interpretation, the court disallowed Maathai's application, inter alia, because “only the Attorney General can sue on behalf of the public”.Footnote 31 Moreover, the court held that she would be no more affected than any other resident of Nairobi by the proposed construction.Footnote 32 Dugdale J emphasized that “it is not alleged that the Defendant Company is in breach of any rights, public or private, in relation to the plaintiff nor has the company caused damage to her nor does she anticipate any damage or injury.”Footnote 33

Besides the court's highly restrictive interpretation and subsequent dismissal of the applicant's locus standi, the Wangari Maathai judgment also reveals disregard for other no less important considerations. In addition to briskly dismissing the applicant's locus standi, the court also downplayed the criticality of public participation and consultation; this adversely influenced subsequent actions of a similar nature. Dugdale J held, in relevant part:

“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 Maathai 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.”Footnote 34

In this regard, it is possible to draw a correlation between the strictures of the common law's interpretation of locus standi and the corresponding indifference to broader imperatives of participatory democracy which may bear far reaching implications, including eroding other human rights.Footnote 35

While the court appeared to uphold more liberal interpretations of locus standi in some subsequent cases, this was neither consistent nor coherent. Although not themselves environmental claims, illustrative of this inconsistency are Maina Kamanda and Another v Nairobi City Council and Another Footnote 36 (Maina Kamanda) and subsequently Wangari Maathai and Others v City Council of Nairobi and Others Footnote 37 (Wangari Maathai II). In Maina Kamanda, the court interpreted locus standi liberally in respect of ratepayers objecting to the council's irregular provision of housing privileges to the second respondent.Footnote 38 Accordingly, the court upheld the applicants' argument that, contrary to the respondent's assertion that the applicants lacked locus standi without the Attorney General's express sanction, as ratepayers to the respondent council they had sufficient legal interest in the latter's misuse of public funds.Footnote 39 In an approach that is indicative of the court's departure from the prescriptive interpretation, Akiwumi J stated: “[i]t is now well settled that a ratepayer as opposed to a taxpayer, has sufficient interest as such, to challenge in court the action of a public body to whose expenses he contributes.”Footnote 40

However, in Wangari Maathai II, in marked departure from its liberal approach in Maina Kamanda, the court interpreted locus standi restrictively. The case concerned the alleged irregular sub-division, sale and subsequent transfer to a third party of a piece of land held by Nairobi City Council under public trust.Footnote 41 Accordingly, the applicants sought to nullify the relevant transaction and restrain any further development on the property. For their part, the respondents contested the applicants' claims arguing, inter alia, that without any demonstrable likely loss or “private injury”, the latter were bereft of the requisite locus standi.

In the Wangari Maathai II judgment the court reasoned that, while a public authority may bring an action explicitly to protect the environment, it remained for a private applicant to seek remedy in respect of a private injury.Footnote 42 It therefore upheld the respondents' objection that the Attorney General's sanction was essential to the procedural propriety of the private enforcement of public rights. Ole Keiwua J stated categorically that: “[t]he Constitution of [Kenya] has wisely entrusted the privilege with a public officer, and has not allowed it to be usurped by private individuals.”Footnote 43 Moreover, the court emphasized that, in any event, any environmentally protective benefit arising from private action would be purely incidental.Footnote 44 The implication of this judgment (taken here as representative of the restrictive common law interpretation of locus standi) to public interest environmental litigation at the time, was twofold. First, it meant that the perceived essential nature of the Attorney General's express sanction severely hobbled public interest litigation, and secondly that environmental benefits flowing from such litigation were merely secondary to other considerations.

Subsequently, in Law Society of Kenya v Commissioner of Lands and Others Footnote 45 (Law Society of Kenya) which arose from the alleged improper allocation of land to the Law Society of Kenya, in remarkable similarity to its earlier approaches in Wangari Maathai and Wangari Maathai II, the High Court relied on the restrictive common law rule on locus standi. Ruling in Law Society of Kenya, in judgments notably redolent of the view espoused in Gouriet,Footnote 46 the court held that matters of public interest were only within the Attorney General's competence to institute proceedings. The court further held that: “[i]f the interest at issue is a public one, then the litigant must show that the matter complained of has injured him over and above injury, loss or prejudice suffered by the rest of the public in order to have a right to appear in Court and to be heard on the matter. Otherwise, public interest [issues] are litigated upon by the Attorney-General or such other body as the law sets out.”Footnote 47

On the other hand, in a notable change of approach, in Paul Nderitu Ndung'u and Others v Pashito Holdings Limited and Another the court overtly adopted a liberal interpretation of locus standi.Footnote 48 The applicants sought, on behalf of their neighbours, to restrain the dealings and activities of the respondents, two real estate developers, in respect of certain pieces of land which had been reserved for constructing, inter alia, a water reservoir.Footnote 49 The respondents contested the application, inter alia, on the applicants' alleged lack of locus standi, arguing that authority vested solely in the Attorney General. In the judgment, which contrasts sharply with the restrictive interpretations of locus standi in Wangari Maathai, Wangari Maathai II and Law Society of Kenya, the court disallowed the respondents' objection to the applicants' locus standi. It held, in relevant part, that: “[t]he submission that the Attorney General is the only competent authority to institute a suit on behalf of the public is restrictive and may lead to miscarriage of justice.”Footnote 50

It is noteworthy, however, that the court made this statement obiter rather than expressly in the substantive part of the judgment. The latter would have indicated an intention to establish a precedent. Nevertheless, the fact that this statement was made, coupled with the subsequent favourable treatment of public interest litigation, is strongly indicative of a desire to depart from the strictures of the common law rule on locus standi. Footnote 51 All the same, it is possible to conclude the opposite by construing that the court's inconsistent approach and indecisiveness regarding the restrictive common law on locus standi suggest an intention not to extend the scope of possible public interest actions. The next section explores the dynamics of the dilemma that faced the judiciary regarding how best to reconcile the competing interests of giving meaningful effect to environmental rights and conforming to the strictures of common law.

NECESSARY INNOVATION NOT NEEDLESS ACTIVISM: JUDICIAL ADOPTION OF LIBERAL AND PURPOSIVE APPROACHES TO INTERPRETING LOCUS STANDI

As in many common law jurisdictions, the judicial treatment of public interest environmental action in Kenya has been significantly influenced by the restrictive interpretation of locus standi.Footnote 52 However, there have been notable instances of judicial departure from the restrictive interpretation of locus standi towards purposive and permissive interpretations. These have elicited varying reactions, from being decried as needless activism to being hailed as necessary innovation.Footnote 53 This divergence of opinion is indicative of the dynamics of judicial responses to the evolving circumstances of socio-economic change in Kenya, and the tensions and developments which characterize them.Footnote 54 As was famously observed by Roscoe Pound, the law should be an instrument of social engineering towards the end of reconciling conflicting claims and resolving them.Footnote 55 Cast in this light, the Kenyan judiciary's adoption of liberal and purposive approaches for interpreting locus standi appears to constitute a laudable feat of social engineering, since it promoted efficiency in accessing judicial remedy with minimal friction from conflicting interests. Judicial innovation of this hue finds support in the English case of Prager v Blatspiel, Stamp & Heacock Ltd where McCardie J ruled that: “[t]he object of the [l]aw is to solve difficulties and adjust relations in social and commercial life. It must meet, so far as it can, sets of facts abnormal as well as usual. It must face and deal with changing and novel circumstances. Unless it can do that, it fails in its function and declines in its dignity and value. An expanding society demands expanding law.”Footnote 56

In this regard, it is reasonable to conclude that, where Kenyan courts have interpreted locus standi expansively and purposively, “necessary innovation” reflects the more fitting description of the respective judicial action since, had such non-conventional approaches not been taken, the realization of reliefs in respect of the relevant impugned conduct would have been obstructed. An example of this is found in Kenya Bankers Association and Others v Minister for Finance and Another (Kenya Bankers Association) where it was held that:

“In our considered opinion, carefully reached during our retirement to consider this case, like human rights cases, public interest litigation, including lawsuits challenging the constitutionality of an Act of Parliament, the procedural trappings and restrictions, the preconditions of being an aggrieved person and other similar technical objections cannot bar jurisdiction of the court, or let justice bleed at the altar of technicality. This court has vast powers under Section 60 of the Constitution of Kenya, to do justice without technical restrictions and restraints, and procedures and relief have to be moulded.”Footnote 57

The view taken up in Kenya Bankers Association was similarly adopted in Albert Ruturi and Another v Minister for Finance and Others (Albert Ruturi), where the court stated:

“We state with firm conviction that as part of the reasonable, fair and just procedure to uphold constitutional guarantees, the right of access to justice entails a liberal approach to the question of locus standi. Accordingly, in constitutional questions, human rights cases, and public interest litigation and class actions, the ordinary rule of Anglo-Saxon jurisprudence, that action can be brought only by a person to whom legal injury is caused, must be departed from. In these types of cases, any person or social groups, acting in good faith, can approach the Court seeking judicial redress for a legal injury caused or threatened to be caused to a defined class of persons represented.”Footnote 58

In its subsequent judgment in El Busaidy v Commissioner of Lands and Others Footnote 59 (El Busaidy) the High Court upheld its earlier ruling in Albert Ruturi, which reflects a similar theme as that in Kenya Bankers Association. The court held in El Busaidy that, in public interest litigation and class action suits, any person or social groups, acting in good faith, can approach the court seeking judicial redress for a legal injury (threatened to be) caused to a defined class of persons represented.Footnote 60

The bold position taken in El Busaidy was particularly significant in advancing public interest environmental litigation. In contrast with the court's rigid and restrictive common law interpretation of locus standi in Wangari Maathai and Wangari Maathai II, the approach in El Busaidy widened access to environmental justice by making for a more liberal provision for the applicant's locus standi. Essentially, the court's progressive adoption of a liberal approach, as shown above, constituted a necessary step towards the widening of access to judicial recourse for harm, including environmental harm. Of comparative significance to the Kenyan courts' adoption of liberal and purposive approaches to interpreting locus standi is the English case of IRC v National Federation of Self-Employed and Small Businesses Ltd, where Lord Diplock ruled:

“It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney General, although he occasionally applies for prerogative orders against public authorities that do not form part of central government, in practice never does so against government departments. It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary…; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.”Footnote 61

Comparative significance for the judicial adoption of liberal and purposive approaches to interpreting locus standi is also discernible in Tanzania. In Rev Christopher Mtikila v The Attorney General Footnote 62 (Rev Christopher Mtikila), the judiciary was urged to be amenable to the generous grant of locus standi to any private person seeking the court's audience with a view to enforcing public interest. In particular, Lugakingira J (as he then was) emphatically stated that “if there should spring up a public spirited individual and seek the courts intervention …, the Court must grant him standing”.Footnote 63 Although Rev Christopher Mtikila did not itself relate to an environmental claim, its implication for public interest environmental litigation was immensely significant. It clearly represented judicial recognition of the need to widen progressively the avenues through which environmental justice may be accessed.Footnote 64 Accordingly, subsequent public interest environmental litigation witnessed the accommodation of applicants to whom locus standi would ordinarily not be conferred.Footnote 65 Examples are discernible in the subsequent decisions of Joseph D Kessy v Dar es Salaam City Council Footnote 66 and Felix Joseph Mavika v Dar es Salaam City Commission Footnote 67 where the locus standi of the applicants was upheld.

Contemporaneously, judicial attitudes in Kenya regarding public interest environmental litigation were becoming increasingly more favourable: courts were inclining towards liberal rather than restrictive interpretations of locus standi.Footnote 68 Illustrative in this regard is Hassan and Others v Kenya Wildlife Service Footnote 69 (Hassan), where the applicants sought to restrain the respondents from relocating Hirola gazelles from their natural habitat. Mbito J acknowledged the liberal locus standi of the applicants and granted the injunction. Illustrative also was the overt approach subsequently employed in Insurance Company of East Africa v Attorney General Footnote 70 where it was held that, in environmental issues, a liberal and purposive interpretation of locus standi must be adopted. Further illustration is found in Momanyi v Bosire Footnote 71 (Momanyi), where the applicant, a resident of Imara Daima Estate in Nairobi, instituted proceedings in respect of the respondent's breach of the Physical Planning Act, 1996. Rather than satisfying planning requirements pertinent to a proposed kiosk, the applicant instead constructed a resort which sold, inter alia, liquor at the entrance of Imara Daima Estate.Footnote 72 Finding for the applicant, Hayanga J ruled that the respondent's conduct had contravened planning legislation, holding further that the inaction of Nairobi City Council breached its statutory obligation to demolish structures constructed without the benefit of plan information.Footnote 73 Consequently, it was ordered that the resort be torn down.

The significance of the Momanyi decision to public interest environmental litigation is two-fold. First, it illustrates the positive potential of liberal and expansive approaches to locus standi, since the court entertained the private enforcement of rights bearing public elements. Secondly, it clarifies that, had the court proceeded from the restrictive interpretation of locus standi, then the impugned conduct would probably have gone unchallenged. Hence, in retrospect, the increased judicial appreciation of the necessity of adopting liberal and permissive approaches to locus standi in public interest litigation is justified by the fact that, without the bold and purposive standpoints taken by the relevant courts, significant harm would have resulted.Footnote 74 Moreover, the fact that subsequent legislative and constitutional developments in Kenya explicitly endorsed the liberal and permissive interpretation of locus standi, particularly in respect of environmental claims, vindicates the necessity of the earlier adopted principled approach to judicial activism.

The criticality of the judiciary's role to environmental protection in Kenya

This discussion has shown that the necessary activism of the Kenyan judiciary has been instrumental in public interest environmental litigation. The judiciary's pivotal role in interpreting and enhancing environmental law, thereby informing decision-making processes regarding the country's contemporary developments from the principled standpoint of sustainability is well illustrated by Ojwang' J:

“In the case of the environment … the state of the law may well be relatively obscure; yet a decision must be pronounced. From my understanding of the law, and from my own experience of judicial decision-making, where the question before the Court relates to the environment, and the legislature's guidance is by no means comprehensive, the Court once it ascertains the facts, must appreciate the relevant principles [including sustainability] which ought to be reflected in the law … So whenever the Court has an opportunity to declare the law on an environmental question, the shape of that law should be conservatory of the environment and the natural resources; and the Court should apply this principle to determine, where possible, such rights or duties as may appear to be more immediately linked to economic, social, cultural, or political situations.”Footnote 75

The primacy of judicial roles in upholding sustainable development has been recognized not only in Kenya, but also in other jurisdictions.Footnote 76 In particular, the criticality of these roles found ample expression at the World Summit on Sustainable Development in Johannesburg in 2002,Footnote 77 where judicial members in attendance were enjoined to contribute towards the “realization of the goals of sustainable development through the judicial mandate to implement, develop and enforce the law, and to uphold the Rule of Law and the democratic process”.Footnote 78 This summit engendered the Johannesburg Principles on the Role of Law and Sustainable Development (Johannesburg Principles), constituting principles which had initially been adopted at a global symposium of judges. The Johannesburg Principles highlighted the crucial role to be played by judiciaries worldwide in promoting sustainable development,Footnote 79 emphasizing that: “[an] independent Judiciary and judicial process is vital for the implementation, development and enforcement of environmental law, and that members of the Judiciary, as well as those contributing to the judicial process at the national, regional and global levels, are crucial partners for promoting compliance with, and the implementation and enforcement of, international and national environmental law.”Footnote 80

Accordingly, when determining the substantive and procedural rights and duties of parties to an environmental suit, principled judicial activism would be indicated by the extent to which recourse is actively made to the best principles of environmental conservation and sustainable development, while considering the pertinent breaches and remedies.Footnote 81 This implies a proactive judicial role, including finding innovative ways to remedy particular environmental wrongs, the redress for which would ordinarily be obscure, inarticulate, inadequate or altogether absent. In this manner, judicial activism transforms the court from being a merely disinterested umpire into a proactive means for providing realistic access to the legislature's objective intent, so that the theoretical process of democracy applies more meaningfully and effectively in practice.Footnote 82 Alternatively put, through principled activism the judiciary serves as a “catalyst, not a usurper, of the legislative process”.Footnote 83 As was observed by Spigelman CJ, the judiciary enforces the legality of governance, thereby playing a critical role in maintaining the institutional integrity of the democratic ideal.Footnote 84

THE EMCA: AN EXPRESS LEGISLATIVE BASIS FOR PUBLIC INTEREST LITIGATION

Prior to the enactment of the EMCA,Footnote 85 the legal bases for public interest environmental litigation were especially fragile. Accordingly, prospects for the success of such litigation held little promise, often being dashed at the preliminary stages owing to the applicants' perceived want of locus standi. Particularly pertinent to environmental claims, the absence of an express provision within Kenya's legal framework providing permissive access to court, thus allowing for public interest litigation, only served further to exacerbate this situation. Since there were no explicit constitutional or legislative provisions providing concrete support to the applicants' public interest actions, in many instances the courts took recourse to the restrictive common law interpretation of locus standi, consequently disallowing most applications.Footnote 86

Hence, the enactment of the EMCA inaugurated into the Kenyan legal framework a clear and authoritative legislative basis for public interest litigation. In section 3(1) it confers upon “every person in Kenya” the right to a clean and healthy environment, and a corresponding duty to protect and enhance the environment. The phrase “every person in Kenya” is strongly indicative of the drafters' intention to confer rights and corresponding duties upon natural and legal persons. The obligations include, inter alia, the institution by private persons of public interest environmental litigation. Accordingly, a positive obligation rests on private applicants actively to seek judicial redress in respect of (likely) violations of environmental rights or dereliction of environmental duties. Support for this contention is manifest in section 3(3) of the EMCA which provides:

“If a person alleges that the entitlement conferred under subsection (1) has been, is being or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress and the High Court may make such orders, issue such writs or give such directions as it may deem appropriate to -

  1. (a) Prevent, stop or discontinue any act or omission deleterious to the environment;

  2. (b) Compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment;

  3. (c) Require that any ongoing activity be subjected to an environmental audit in accordance with the provisions of this Act;

  4. (d) Compel the persons responsible for the environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage; and

  5. (e) Provide compensation for any victim of pollution and the cost of beneficial uses lost as a result of an act of pollution and other losses that are connected with or incidental to the foregoing.”

Apart from introducing a clear legal basis for public interest litigation, the EMCA also provides a legislative basis for the liberal interpretation of locus standi. In contrast with the hitherto prevalent restrictive interpretation, the EMCA makes irrelevant the decisive requirement of an applicant's demonstrable personal relationship with, or resulting personal injury from, the subject matter of the litigation. Section 3(4) of the EMCA provides:

“A person proceeding under subsection (3) of this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendant's act or omission has caused or is likely to cause him any personal loss or injury provided that such action -

  1. (a) Is not frivolous or vexatious; or

  2. (b) Is not an abuse of the court process.”

Illustration for the progressive effect of the above provision is apparent in Republic v Minister for Environmental and Natural Resources and Others where Ang'awa J ruled that: “any person aggrieved by any act of or possible act of environmental degradation [is] permitted to come to court and the issue of Locus Standi will not be an impediment to appearing in court”.Footnote 87 The significance of the recognition in article 3 of public interest environmental litigation and the irrelevance of the applicants' demonstrable personal injury or interest cannot be overstated. First, it broadened the avenues for the private enforcement of environmental rights by establishing a clear legislative basis on which a more permissive approach must hold sway over the restrictive interpretation of locus standi. In particular, article 148 of the EMCA renders the legislative antecedents operating before the EMCA came into force subject to such modification as to facilitate the act's process of gaining effect. Secondly, the legislative nature of the EMCA's provisions gives them a much firmer basis and a far more compelling appeal compared with the position hitherto, where the success or failure of public interest action turned decisively on the judge's disposition.Footnote 88

Thirdly, express legislative provision engenders a more determinate and principled approach in case contradictions, overlaps or other absences of clarity arise from the operation of two or more sources of law in respect of environmental matters. In this regard, section 148 of the EMCA outlines the primacy clause which explicitly states that “where the provisions of any such law conflict with any provision of the Act the provision of this Act shall prevail”. The primacy of the EMCA vis à vis other legislative authority was reaffirmed in Rodgers Muema Nzioka and Others v Tiomin Kenya Limited (Rodgers Muema Nzioka), where Hayanga J stated:

“The question may well be asked if legal cases based on the environment are to be resolved on any distinct principles, but the answer is that if there is a distinct law on [the] environment it is not conclusive, … but the applicable law is the statute law which in this case is the Environmental Management and Coordination Act, number 8 of 1999. It is imperative to resort to this statute to decide whether the claimant not only has entitlement to an action but a case for injunction with probability of success.”Footnote 89

Furthermore, besides providing an express legislative basis for public interest environmental litigation, the EMCA also establishes quasi-judicial mechanisms in respect of environmental matters.Footnote 90 Section 31 creates the Public Complaints Committee, inter alia, to investigate and subsequently document in a report environmental despoliation in Kenya, whether independently or at the instigation of any person.Footnote 91 Section 125 establishes the National Environmental Tribunal as a “specialized dispute settlement institution”Footnote 92 which (importantly for advancing environmental justice) is empowered to “offer specialized, expeditious and cheaper justice than ordinary courts of law”.Footnote 93 However, these mechanisms have limited mandates and thus their enforcement capacities are diminished.Footnote 94 Nonetheless, their inclusion is by no means in vain as they complement other beneficial provisions of the EMCA, conjunctively broadening the avenues for enhanced access to environmental justice in Kenya.

From the promise of the EMCA outlined above, it is reasonable to expect a subsequent corresponding positive change in the judicial protection of the environment in Kenya. The issue thus arises of the relative impact of the EMCA's explicit provision for a permissive approach to locus standi, and a concrete legislative basis for public interest litigation on the protection and enhancement of the environment in Kenya. It is to this question that the following section turns.

Public interest environmental litigation after the enactment of the EMCA

The enactment of the EMCA was attended with expectations that it would preside over a new era in the enforcement of environmental law, where renewed meaning would be given to the concept of environmental rights. The maiden claim instituted in the High Court regarding the EMCA's provisions was Rodgers Muema Nzioka, which concerned the respondent corporation's intention to commence titanium mining activities without having first conducted the statutorily requisite environmental impact assessment.Footnote 95 Accordingly, the applicants sought, inter alia, to restrain the respondent's prospective activities and to have those activities declared illegal. Before rendering its decision, the court dealt with a preliminary yet essential issue: whether the plaintiff had sufficient locus standi to institute the claim.

The court's reasoning in Rodgers Muema Nzioka expressly relied upon sections 3(1) and (2) of the EMCA which respectively grant every person the right to a clean and healthy environment, and the right to access the courts in vindication of this right. Accordingly, Hayanga J emphasized that “[t]he plaintiff does not need to show that he has a right or interest in the property, environment or land alleged to be invaded. That seems to be the law.”Footnote 96 This judgment is significant since it authoritatively underscored the primacy of the EMCA over other applicable law, including “the principles of common law”. Hence, it reinforced the liberal interpretation of locus standi provided under section 3(4) of the EMCA. Moreover, considering the applicability of res judicata [a matter already judged] in Kenya, the fact that this was the first judgment of the High Court after the enactment of the EMCA conferred on it the potency of precedential character.

The court's subsequent ruling in Samson Lereya and Others v The Attorney General and Others Footnote 97 also reveals the progressive impact of a clear legislative basis for public interest environmental litigation in Kenya. The applicants sought orders against the respondents for the eradication of the invasive Mathenge weed (proposis juliflora) which engendered adverse environmental and health effects.Footnote 98 The respondents raised preliminary objections, inter alia, regarding the applicants' alleged lack of locus standi since they had no specific interest in the subject matter of the suit. The court disallowed the restrictive interpretation of locus standi and substantiated its stance with the liberal provisions of the EMCA. Accordingly, Aluoch, Kubo and Mugo JJ held that: “[o]n the basis of Section 3(3) and (4) of the [EMCA], we hold that the preliminary objection based on the ground of lack of locus standi has no merit and it is hereby dismissed.”Footnote 99

The case of Sylvia Endere v Karen Roses Ltd Footnote 100 provides further illustration of the progressive effect of the EMCA in enhancing liberal and purposive interpretations of locus standi, thus promoting public interest environmental litigation. The applicant sought to restrain the respondent company's activities in respect of the latter's dam. The respondent sought to have the suit dismissed arguing, inter alia, that the applicant would scarcely be affected by the dam's rehabilitation.Footnote 101 In his decision, Kimaru J established that the requisite environmental impact assessment for the rehabilitation of the dam had not been conducted, and upheld the action: “it is clear that the plaintiff is not a busy body. She is within her rights as provided for under Section 3 of the [EMCA] to enforce the provisions of the said Act if she was of the view that the defendant was likely to contravene the provisions of the said Act and cause harm to the environment.”Footnote 102

Illustrative also of this transformative character of the EMCA is Peter Kinuthia Mwaniki and Others v Peter Njuguna Gicheha and Others.Footnote 103 The applicants in this case sought to restrain the defendants from constructing a slaughterhouse within their residential area.Footnote 104 Although the parties to the suit did not explicitly raise the issue of locus standi, Aluoch J went on independently to consider those issues pertinent to it. Relying on the liberal approach to locus standi, provision for which is explicitly made in the EMCA, she expressly indicated her satisfaction with the applicants' “authority to sue” and stated, in relevant part:

“[T]he plaintiffs, though not the owners of the land in dispute, nevertheless have the authority to sue, such authority being derived from Section 3(3) of the [EMCA] … In this case, I am satisfied the plaintiffs had ‘locus’ to file [the] suit in the High Court because their entitlement to a clean and healthy environment is ‘likely to be contravened’ if the defendants … start their operations … in defiance of all directions to stop the construction of a butchery whose operations will breach the provisions of the Act.”Footnote 105

These judgments provide suitable illustration for the progressive impact the EMCA has had on public interest environmental litigation through the introduction of an explicit legislative basis on which the liberal and permissive approach to locus standi is to be adopted.

The enactment of the EMCA has also significantly impacted the public regulation of private property. In marked contrast to the common law position, under which the regulation of private property was restricted to eminent domain and police power,Footnote 106 there is an increasing trend towards greater public regulation over private property in Kenya.Footnote 107 This is most visible in the exercise of judicial environmental governance for sustainable development.Footnote 108 The question regarding the extent to which public environmental imperatives may be brought to bear upon private property rights arose in Parkview Shopping Arcade Ltd v Charles M Kang'ethe and Others Footnote 109 (Parkview Shopping Arcade). This case concerned a piece of land (a wetland) owned by the applicant corporation and which had incidentally been occupied by the respondents. The applicant sought to have the respondents evicted, based on breaches of its property rights, specifically the right to develop the land,Footnote 110 On the other hand, the respondents argued that they were not trespassing,Footnote 111 that their activities enhanced the environmental quality of the land,Footnote 112 and that the proposed construction threatened the right to a clean and healthy environment.Footnote 113 The court had to strike a delicate balance between the applicant's right to property and environmental rights in the interest of the public.

In his ruling, Ojwang' J clarified that, although the law provides for the regulation of property rights in the public interest (including sustainable development), such regulation can only be effected in accordance with the law.Footnote 114 Hence, he found it unacceptable that the respondents “should forcibly occupy the suit land and then plead the public interest in environmental conservation, to keep out the registered owner”.Footnote 115 Nonetheless, relying on section 3(3)(b) of the EMCA, he ordered the minister for environment to assess the status of the land and take appropriate action, effectively constituting an order to a public authority to regulate private property notwithstanding the private interest.Footnote 116 This ruling explicitly confirmed that private property rights can be regulated by public law for the purposes of environmental protection, especially for sustainable development.Footnote 117

However, notwithstanding the express provision for the liberal interpretation of locus standi under article 3 of the EMCA, environmental actions have continued to be frustrated through a restrictive interpretation of locus standi.Footnote 118 While the provision by the EMCA of a clear legislative basis for the expansion of the scope of litigation and the category of litigants was expected to engender progressive, consistent and coherent jurisprudence deriving from public interest litigation, this was not always the case.Footnote 119 In some instances, the judicial approach to locus standi has been contradictory, inconsistent and incoherent. Instructive in this regard is the treatment of locus standi (post-EMCA) in the Law Society of Kenya judgment where the court stated, in relevant part: “[i]f the interest issue is a public one, then the litigant must show that the matter complained of has injured him over and above injury, loss or prejudice suffered by the rest of the public in order to have a right to appear in court and to be heard on the matter. Otherwise, public interest [issues] are litigated upon by the Attorney General or such other body as the law sets out.”Footnote 120

Reasons for this curiosity, whereby clear provisions engender inconsistent and contradictory decisions, have been cited as including insufficient environmental law training amongst the judiciary and, as was illustrated by Waweru v Republic, the emanation of civil environmental claims from cases which were originally criminal matters.Footnote 121 Nevertheless, as has been shown in this section, it is notably encouraging that, post-EMCA, most Kenyan courts have faithfully construed locus standi liberally, hence buoying public interest environmental litigation. Moreover, the EMCA's provisions have been reinforced in Kenya's 2010 Constitution. The next section examines the provisions of the constitution, with particular regard to public interest environmental litigation.

EXPLICIT AND PERMISSIVE: A CONSTITUTIONAL BASIS FOR PUBLIC INTEREST LITIGATION

The promulgation of the 2010 Constitution established a new legal order in Kenya. Among other welcome features, this constitution introduced an explicit constitutional basis for public interest litigation, including for environmental protection. Also, unprecedentedly, it provides for the right to a clean and healthy environment, securing Kenya a place in the increasing list of African states whose constitutions enshrine environmental protection either directly or indirectly.Footnote 122 This constitution establishes the Bill of Rights as “an integral part of Kenya's democratic state”Footnote 123 which serves as the repository of the rights and duties of natural and legal persons, and as a precept for the subsequent legal relationships which arise as a result.Footnote 124

The 2010 Constitution also provides an explicit and permissive basis for public interest litigation. Article 22(1) entitles every person to institute court proceedings regarding fundamental provisions in the Bill of Rights which have been, or are threatened to be, denied, violated or infringed. In particular, article 22(2) grants permissive locus standi for the institution of judicial proceedings to a person: (i) acting in their own interest; (ii) acting on behalf of another person who cannot act in their own name; (iii) acting as a member of, or in the interest of, a group or class of persons; (iv) acting in the public interest; and (v) an association acting in the interest of one or more of its members. This is further reinforced by article 258 of the 2010 Constitution which similarly makes explicit provision for every person's right to institute proceedings in respect of a (threatened) contravention of the constitution.

Environmental protection under the 2010 Constitution

The 2010 Constitution recognizes, unprecedentedly within the Kenyan legal framework, the explicit entitlement to environmental rights. Article 42 provides: “[e]very person has the right to a clean and healthy environment, which includes the right - to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and to have obligations relating to the environment fulfilled under Article 70.”

Article 42 is a progressive and innovative inclusion of explicit constitutional recognition for environmental rights and obligations in Kenya. The use of the phrase “every person” is laudable: it strongly indicates the judicious recognition that natural and legal persons bear environmental entitlements and responsibilities. Moreover, whilst article 42 identifies the state as the primary duty-bearer in respect of implementing environmental rights by express reference to article 69, it also recognizes the importance of non-state entities in enforcing environmental rights by referring explicitly to article 70. Importantly, article 42 reaffirms the international law principle of inter-generational equity, according to which the present generation must utilize the available natural resources in such a manner as not to impair the capacity of future generations to derive a comparable benefit.Footnote 125

Furthermore, the 2010 Constitution provides an explicit constitutional basis for public interest environmental litigation. Article 70 provides:

“Enforcement of environmental rights

  1. (1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.

  2. (2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate …

  3. (3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.”

These provisions complement the generous access to justice provisions in article 22. Similar to the position in article 22, article 70 confers broad locus standi on all persons to institute judicial proceedings regarding environmental rights which have been, are being or are likely to be threatened. Moreover, article 22(3) expressly obviates the demonstration by an applicant that “any person has incurred loss or suffered injury”. This is profoundly significant considering, in retrospect, that several public interest environmental claims were frustrated due to the applicants' perceived lack of locus standi.Footnote 126 Read conjunctively, articles 22 and 70 proffer an explicit and permissive basis for public interest environmental litigation. Although it is certainly laudable that the 2010 Constitution unprecedentedly provides for an explicit and permissive basis for public interest environmental litigation, residual challenges to this innovation remain. These are explored in the next section.

Procedural prospects and challenges for public interest environmental litigation

Locus standi

Among the significant innovations of the 2010 Constitution is how it surmounts the restrictive common law interpretation of locus standi: article 22(1) confers upon “every person” the right to institute court proceedings in respect of (threatened) breaches of fundamental guarantees in the Bill of Rights. Article 22(2) also facilitates the institution of judicial proceedings by persons other than those acting in their own interests. Read together with article 42, every person in Kenya has the right to protect the environment. Accordingly, the new constitutional order establishes a remarkably extensive locus standi regime, thus broadening access to judicial redress. The case of Priscilla Nyokabi Kanyua v Attorney General and Another is particularly instructive. In this case, Mukunya J upheld the permissive approach to locus standi in public interest litigation by stating that “the issue of locus standi has shackled public law litigants for a long time”.Footnote 127 That this ruling was rendered shortly before the enactment of the 2010 Constitution is strongly indicative of continued judicial inclination towards public interest litigation. Besides providing for actio popularis applications [instituted by a third party in the collective interests of the public], thus entertaining public interest litigation, the constitution also allows amicus briefs to be instituted by persons with particular expertise acting as friends of the court.Footnote 128 However, the amenability of the constitution to public interest environmental litigation remains subject to challenges, including its silence on the costs regime. Moreover, earlier jurisprudence of the High Court of Kenya proffers little guidance on which party should bear the costs of the suit.Footnote 129 Representatives of vulnerable groups in public interest litigation often have limited resources, leading most jurisdictions to incline towards each party bearing its own costs.Footnote 130 However, the implication of this is double-edged. On the one hand, the knowledge that the victor's costs do not have to be borne in the event of an unsuccessful litigation may be reassuring to public-spirited persons. On the other hand, this “going Dutch” approach may discourage potential public interest litigants because the success of litigation would not be accompanied by any recompense for the expenses of the suit. Nonetheless, thinking in terms of a win or lose situation points to the fairness of the rule that all parties should bear their own costs.

Procedural obstacles

Public interest environmental claims also face significant procedural obstacles including, inter alia, locus standi and requisite filing fees prior to the institution of judicial proceedings. However, the new constitutional order puts the effective enforcement of guarantees in the Bill of Rights before the observance of procedural requirements. In contrast with the previous position under the repealed constitution where the procedural strictures of common law held sway, article 22(3)(d) of the 2010 Constitution significantly pares back the procedural trappings of litigation by stating that the court must not be “unreasonably restricted by procedural technicalities”. Accordingly, the erstwhile emphasis placed on the strict observance of procedural formalism is reduced, including prohibitive costs prior to commencing proceedings, the requirement of formal documentation and other technicalities. Illustrative in this regard is the innovative provision directing that the absence of procedural rules does not in any way deprive a prospective applicant of the benefits of the broad and permissive provisions on access to court.Footnote 131 Also indicative of the constitution's endorsement of the purposive approach towards effectively enforcing constitutional guarantees, is the fact that articles 20 and 22 read conjunctively echo sentiments of Gicheru CJ (as he then was), who stated that the “court shall consider establishing a rule of procedure allowing the waiver of court filing fees for the environmental law actions, which the litigants pursue for the common benefit of society”.Footnote 132 Accordingly, the new constitutional order reflects a flexible and practical approach towards implementing constitutional guarantees, including environmental rights and obligations. This approach is pragmatic in that it precludes the exclusion of vulnerable persons from effectively enjoying the benefits of the new constitution simply because of a lack of the requisite procedural trappings of an unduly formalistic approach.

Jurisdiction

The authority of courts to uphold and enforce the Bill of Rights is firmly established under article 23(1) of the 2010 Constitution which provides: “[t]he High Court of Kenya has jurisdiction, in accordance with Article 165,Footnote 133 to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.” However, it is noteworthy that a good number of environmental applications in Kenya find their way through subordinate courts, and in some cases even come initially as criminal rather than civil matters.Footnote 134 Conferring original jurisdiction solely on the High Court would therefore unwittingly limit access to environmental justice. Article 23(2) remedies this by providing that, in appropriate cases, Parliament shall enact legislation conferring original jurisdiction on subordinate courts to hear and determine applications for redress of interferences with guarantees in the Bill of Rights. However, no express recognition is given to other non-judicial alternative dispute resolution mechanisms, such as councils of elders or other community initiatives: a glaring omission since much environmental action involves communities and communal property, where non-judicial dispute resolution may be preferred to judicial proceedings. Nonetheless, article 20(3) proffers some remedy by empowering the courts to develop the law to the extent that it does not give effect to, and to adopt the interpretation that most favours the enforcement of, a right or fundamental freedom. Moreover, an implicit basis for non-judicial alternative dispute resolution mechanisms exists in article 69(1)(d) which enjoins the state, inter alia, to encourage public participation in managing, protecting and conserving the environment. Thus, in the event of infractions of expressly guaranteed environmental rights arising under Kenya's new constitutional order, it is encouraging to note that effective judicial as well as non-judicial remedies exist.

Justiciability

Article 70(1) of the 2010 Constitution explicitly entitles any person (regardless of whether they have incurred loss or suffered injury) who alleges that the right to a clean and healthy environment enshrined in article 42 (in the Bill of Rights) has been, is being or is likely to be, infringed or threatened to seek judicial redress in addition to any other available remedies. Article 23(1) reinforces this by indicating that all the rights guaranteed in the Bill of Rights are justiciable, and therefore enforceable in the High Court of Kenya pursuant to article 165. In this regard, this constitution is especially significant because not only does it establish an explicit constitutional basis for the right to public interest environmental litigation, but it also makes express provision for the justiciability of this right. It is noteworthy as well that this constitution reinforces the provisions of article 3 of the EMCA, particularly in respect of the right to public interest environmental litigation. Kenya's new constitutional order appears to hold great promise for environmental protection and access to environmental justice.

Substantive implications for public interest environmental litigation

Interpretation

When interpreting the Bill of Rights, article 20(3) of the 2010 Constitution enjoins courts to make up for inadequate provisions by adopting the interpretation which best develops the law to the extent of remedying the insufficiency, and that which most favours the enforcement of a right or fundamental freedom. This clause is significant as it develops an interpretive approach to implementing fundamental rights, hence further fostering the implementation of constitutional guarantees. This is particularly important for public interest environmental litigation which often addresses grey legal areas and raises questions for which no ready answers are available. Moreover, this constitution expressly endorses judicial authorities' purposive interpretations of the Bill of Rights by requiring interpretation that promotes its “spirit, purport and object”.Footnote 135 This provides a robust basis for implementing environmental rights and also highlights the criticality of the courts to the broader enterprise of effective environmental protection in Kenya. Furthermore, attention needs to be paid to the values underlying an open and democratic society (human dignity, equity, social justice and popular participation) when interpreting the Bill of Rights.Footnote 136 Applied to environmental claims, this reaffirms elements of participatory governance which are integral to public interest environmental litigation, particularly in instances where potentially adverse environmental decisions have been made without any consultation with the respective local communities. The Wangari Maathai judgment remains a cautionary tale of the ill-effects of disregarding the importance of public consultation.Footnote 137 Moreover, John Peter Mureithi and Others v The Attorney General and Others,Footnote 138Hassan and Rogers Muema Nzioka illustrate the proliferation of community-based environmental claims. Hence, the new constitutional order appears amenable to increasing the access of a wider bracket of persons to environmental justice.

Limitation of rights

While the Bill of Rights in the 2010 Constitution stipulates a variety of guarantees, these are not absolute; they have limits. Article 24 enshrines the limitation clause and sets out the conditions for lawful limitations. These include the standards of legality, reasonableness and justifiability in an open, democratic society based on human dignity, equality and freedom, and also the taking “into account [of] all relevant factors”, including those enumerated in the section.Footnote 139 The explicit stipulation of these factors and, more specifically, the use of the phrase “all relevant factors” immediately preceding their enumeration indicate that they must be met cumulatively. Therefore, this constitution establishes a principled approach to the limitation of rights, including environmental rights. Article 24(2)(a) imposes further prescriptive conditions requiring that legislation or any other provision seeking to limit legal guarantees must specifically express the intention to limit the respective guarantee, as well as the nature and extent of the limitation. Besides, under article 24(3), anyone seeking to justify a particular limitation is obliged to demonstrate compliance with the requirements of article 24. Applied to public interest environmental litigation, this constitution expressly establishes new and more expansive grounds for the institution of judicial proceedings by public-spirited persons; this is a welcome addition. Moreover, it explicitly states that limitations should not be such that they derogate from the “core or essential content” of a right or fundamental freedom.Footnote 140 This bears significant implications for public interest environmental action; despite the permissibility of a particular limitation, its likelihood of detracting from the intrinsic benefit sought to be conferred by the guarantee precludes its lawfulness. Consequently, this provides an additional plausible ground for public interest environmental litigation.

Remedies

Article 23(1) of the 2010 Constitution empowers the High Court to proffer judicial redress for “a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”. Upon the finding of an infraction of any person's right, or a threat thereof, article 23(3) further outlines the remedies which courts may grant applicants, including a declaration of rights, an injunction, a conservatory order, a declaration of invalidity, an order for compensation and an order for judicial review. The explicit inclusion of these remedies is significant for the enforcement of environmental rights; it makes clear that for every infraction there exists an effective remedy. Moreover, the express provision for the remedy of a conservatory order is particularly beneficial to environmental protection in the event that an aspect of a specific ecosystem is found to be threatened. Parkview Arcade Shopping is especially illustrative of the potency of conservatory orders, where Ojwang' J ordered the minister for environment to assess and take appropriate action in respect of the suit property which was a sensitive wetland along one of the tributaries of the Nairobi River.Footnote 141 In prospect therefore, there are promising indications that the avenues for seeking environmental justice under Kenya's new constitutional order have been expanded, particularly through the addition of more judicial remedies.

CONCLUSION

Kenya's 2010 Constitution establishes a new constitutional order which presides over some notable innovations, such as the express recognition of environmental rights in the Bill of Rights and the extended grant to all persons of permissive access to justice, including the generous provision of locus standi to all persons. With regard to environmental protection, the new constitutional order represents a significant departure from that under the repealed constitution, according to which there was no express recognition for environmental rights. In marked contrast to its predecessor, the 2010 Constitution proffers an explicit and permissive basis for public interest environmental litigation. The case law discussed in this article is indicative of an increasing appreciation by the Kenyan judiciary of the importance of adopting a liberal and purposive interpretation of locus standi, particularly in respect of environmental claims. In view of the demonstrated inclination of Kenyan courts towards a favourable view of public interest litigation, even before the enactment of the 2010 Constitution, with the provision of an explicit and permissive constitutional basis for public interest environmental litigation, it is reasonable to conclude that Kenya is tending towards greater environmental protection.

Footnotes

1 Preamble, Constitution of Kenya, 2010 (2010 Constitution).

2 See Mutua, MKenya's Quest for Democracy: Taming Leviathan (2009, Fountain Publishers); Mutunga, WConstitution-Making from the Middle: Civil Society and Transition Politics in Kenya, 1992–1997 (1999, SAREAT).

3 2010 Constitution, art 42.

4 Id, art 48.

5 Id, art 22(2).

6 Declaration of the United Nations Conference on the Human Environment 1972: UN doc A/CONF.48/I4. See Sohn, LB “The Stockholm Declaration on the Human Environment” (1973) 14(3) Harvard International Law Journal 423 at 451–55.

7 Kameri-Mbote, P “Kenya” in Kotzé, LJ and Paterson, AR (eds) The Role of the Judiciary in Environmental Governance: Comparative Perspectives (2009, Kluwer Law International) 451 at 467.

8 Id, at 467.

9 MO Odhiambo “Legal and institutional constraints to public interest litigation as a mechanism for the enforcement of environmental rights and duties in Kenya” (paper presented to the Fifth International Conference on Environmental Compliance and Enforcement in Monterey, California, November 1998 and included in conference proceedings) 265 at 267.

10 Act no 18 of 1999.

11 Id, sec 3; Ojwang', JB “The role of the judiciary in promoting environmental compliance and sustainable development” (2007) 1(19) Kenya Law Review 22.

12 See R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749; Gupta v Union of India AIR 1982 SC 149 (per Bhagwati J).

13 Robinson, D “Public interest environmental law: A commentary and analysis” in Robinson, D and Dunkley, JPublic Interest Perspectives in Environmental Law (1995, Wiley Chancery) 294.

14 Baxi, U “Taking suffering seriously: Social action litigation in the Supreme Court of India” in Tiruchelvam, N and Coomaraswamy, R (eds) The Role of the Court in Plural Societies (1987, St Martins Press) 3.

15 Sahu, G “Implications for Indian Supreme Court's innovations for environmental jurisprudence” (2008) 4(1) Law, Environment and Development Journal 1 at 5; See also Anderson, MR “Individual rights to environmental protection in India” in Boyle, AE and Anderson, MR (eds) Human Rights Approaches to Environmental Protection (1998, Oxford University Press) 1.

16 [1977] AC 435 at 500.

17 Sahu “Implications for Indian Supreme Court's innovations”, above at note 15 at 6–7.

18 Sax, JLDefending the Environment: A Handbook for Citizen Action (1971, Vintage Books) at xviii, cited in Preston, BJ “The role of public interest environmental litigation” (2006) 23 Environmental and Planning Law Journal 337.

19 Notable amongst these are the developments in India. For a fuller discussion see Razzaqhue, JPublic Interest Environmental Litigation in India, Pakistan and Bangladesh (2004, Kluwer Law International); Das, G “The Supreme Court: An overview” in Kripal, BN et al. (eds) Supreme But Not Infallible (2000, Oxford University Press) 159.

20 Kameri-Mbote, P and Odote, C “Courts as champions of sustainable development: Lessons from East Africa” (2009) 10(1) Sustainable Development Law and Policy 35.

21 Sahu “Implications for Indian Supreme Court's innovations”, above at note 15 at 5.

22 D Kaniaru et al “UNEP judicial symposium on the role of the judiciary in promoting sustainable development” (paper presented to the Fifth International Conference, above at note 9) 21 at 22.

23 See for example: Chirwa, DM “Liberating Malawi's administrative justice jurisprudence from its common law shackles” (2011) 55(1) Journal of African Law 105; Preston, BJ “Public enforcement of environmental laws in Australia” (1991) 6 Journal of Environmental Law and Litigation 39; Peiris, GL “Public interest litigation in the Indian subcontinent: Current dimensions” (1991) 40(1) International and Comparative Law Quarterly 66.

24 Above at note 16 at 729.

25 Id at 754. See also MO Odhiambo “Legal and institutional constraints”, above at note 9 at 267.

26 Id at 729.

27 Makoloo, MO et al. Public Interest Environmental Litigation in Kenya: Prospects and Challenges (2007, ILEG) at 29.

28 Kameri-Mbote “Kenya”, above at note 7 at 467.

29 HCK civil case no 5403 [1989] KLR 267.

30 Kameri-Mbote “Kenya”, above at note 7 at 467.

31 HCK civil case no 5403, above at note 29.

32 Kameri-Mbote “Kenya”, above at note 7 at 467.

33 Footnote Ibid.

34 Makoloo et al Public Interest Environmental Litigation, above at note 27 at 30.

35 See Kimani, NN “Participatory aspirations of environmental governance in East Africa” (2010) 6(2) Law, Environment and Development Journal 200.

36 HCK civil case no 6153 of 1991.

37 HCK civil case no 72 of 1994.

38 Makoloo et al Public Interest Environmental Litigation, above at note 27 at 30.

39 Footnote Ibid.

40 Footnote Ibid.

41 Id at 31.

42 Footnote Ibid.

43 Footnote Ibid.

44 Footnote Ibid.

45 HCK civil case no 464 of 2000.

46 Above at note 16 at 754.

47 Law Society of Kenya, above at note 45 at 12.

48 HCK civil case no 3063 of 1996.

49 Makoloo et al Public Interest Environmental Litigation, above at note 27 at 32.

50 Id at 31.

51 Footnote Ibid.

52 Kameri-Mbote “Kenya”, above at note 7 at 467–68.

53 For comparative perspectives from India, see Prakash, SS and Sarma, PVN “Environment protection vis-à-vis judicial activism” (1998) 2 Supreme Court Journal 56.

54 Ojwang', JBConstitutional Development in Kenya: Institutional Adaptation and Social Change (1990, Acts Press) at 158.

55 Friedman, MLloyd's Introduction to Jurisprudence (1994, Sweet & Maxwell) at 570–72.

56 [1924] 1 KB 566 at 570.

57 [2002] 1 KLR 56 at 61.

58 [2002] 1 KLR 51 at 54, cited in Kameri-Mbote and Odote “Courts as champions of sustainable development”, above at note 20 at 35.

59 [2006] 1 KLR 479.

60 Id at 498–99.

61 [1982] AC 617 at 740, cited in Makoloo et al Public Interest Environmental Litigation, above at note 27 at 30–31.

62 [1993] 5 TLR 31.

63 Id at 43 (emphasis added).

64 See Kabudi, JP “Tanzania” in Kotzé, LJ and Paterson, AR (eds) The Role of the Judiciary, above at note 7, 505.

65 Pallangyo, D “Environmental law in Tanzania: How far have we gone?” 3(1) Law, Environment and Development Journal (2007) 32.

66 HCT civil case no 29 of 1998 (unreported).

67 HCT civil case no 316 of 2002.

68 Kameri-Mbote and Odote “Courts as champions of sustainable development”, above at note 20 at 36.

69 HCK civil case no 2959 of 1996.

70 HCK civil case no 135 of 1998.

71 1996 HCK (unreported) (Kenya).

72 Kameri-Mbote and Odote “Courts as champions of sustainable development”, above at note 20 at 37.

73 Footnote Ibid.

74 This point was aptly captured in Alphacell Ltd v Woodward [1972] AC 824 at 847–48 (judgment of Lord Salmon): “If no conviction could be obtained [u]nless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred. [A]s a result, many rivers, which are now filthy, would become filthier still and many rivers, which are now clean, would lose their cleanliness. The legislature no doubt recognised that as a matter of public policy, this would be most unfortunate.”

75 Ojwang' “The role of the judiciary”, above at note 11 at 28.

76 See Preston, BJ “The role of the judiciary in promoting sustainable development: The experience of Asia and the Pacific” (2005) 9 Asia Pacific Journal of Environmental Law 109.

77 See Mohamed, TThe Challenges of Sustainable Development After Johannesburg (2003, Global Environment Facility).

78 Principle 1, reprinted in (2003) 15(1) Journal of Environmental Law 107.

79 Preamble, id: “Conviction that the Judiciary, well informed of the rapidly expanding boundaries of environmental law and aware of its role and responsibilities in promoting the implementation, development and enforcement of laws, regulations and international agreements relating to sustainable development, plays a critical role to the enhancement of the public interest in a healthy and secure environmental…”

80 Principle 1, above at note 78.

81 Ojwang' “The role of the judiciary”, above at note 11 at 28.

82 Sax Defending the Environment, above at note 18 at xviii, cited in Preston “The role of public interest environmental litigation”, above at note 18 at 339.

83 Sax, id at 157 at footnote 1, cited in Preston, id at 344.

84 JJ Spigelman “Jurisdiction and integrity” (the second lecture in the National Lecture Series, 2004, for the Australian Institute for Administrative Law, 5 August 2004), cited in Preston, id at 340.

85 Above at note 10.

86 Kameri-Mbote “Kenya”, above at note 7 at 467–68.

87 HCK miscellaneous appln 1643 of 2004, reported in [2008] eKLR at 12.

88 Makoloo et al Public Interest Environmental Litigation, above at note 27 at 29.

89 HCK civil case no 97 of 2001 (unreported).

90 Kameri-Mbote and Odote “Courts as champions of sustainable development”, above at note 20 at 34–35.

91 Kameri-Mbote “Kenya”, above at note 7 at 460.

92 Id at 461.

93 Id at 464.

94 Id at 461.

95 EMCA, sec 58.

96 Makoloo et al Public Interest Environmental Litigation, above at note 27 at 34.

97 HCK civil case no 115 of 2006. Reported in [2006] eKLR.

98 Makoloo et al Public Interest Environmental Litigation, above at note 27 at 37.

99 Id at 38.

100 HCK no 298 of 2005, reported in [2006] eKLR.

101 Makoloo et al Public Interest Environmental Litigation, above at note 27 at 36.

102 Footnote Ibid.

103 HCK civil case no 313 of 2000.

104 Makoloo et al Public Interest Environmental Litigation, above at note 27 at 37.

105 HCK civil case no 313, above at note 103 at 18–19.

106 See Sifuna, N “Public regulation of the use of private land: Opportunities and challenges in Kenya” (2009) 5(1) Law, Environment and Development Journal 52.

107 Kameri-Mbote and Odote “Courts as champions of sustainable development”, above at note 20 at 36.

108 Ojwang' “The role of the judiciary”, above at note 11 at 26.

109 [2006] 1 KLR 591.

110 Id at 593.

111 Id at 593 and 594–95.

112 Id at 593 and 597–98; Ojwang' “The role of the judiciary”, above at note 11 at 26; Kameri-Mbote “Kenya”, above at note 7 at 472; Kameri-Mbote and Odote “Courts as champions of sustainable development”, above at note 20 at 35.

113 Parkview Shopping Arcade, above at note 109 at 597–98; Kameri-Mbote “Kenya”, ibid.

114 Kameri-Mbote and Odote “Courts as champions of sustainable development”, above at note 20 at 35.

115 Ojwang' “The role of the judiciary”, above at note 11 at 26–27; Kameri-Mbote and Odote, ibid.

116 Kameri-Mbote and Odote, id at 36.

117 Parkview Shopping Arcade, above at note 109 at 610; Ojwang' “The role of the judiciary”, above at note 11 at 26–27; Kameri-Mbote and Odote, ibid.

118 Kameri-Mbote “Kenya”, above at note 7 at 473.

119 Makoloo et al Public Interest Environmental Litigation, above at note 27 at 34.

120 Kameri-Mbote “Kenya”, above at note 7 at 467–68.

121 Id at 474; Waweru v Republic [2006] 1 KLR 677–700.

122 For a fuller discussion, see Environmental Law Institute and United Nations Environmental Programme Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa (2007, UNEP).

123 2010 Constitution, art 19(1).

124 Id, art 20.

125 Sands, PPrinciples of International Environmental Law (2000, Cambridge University Press) at 13.

126 Kameri-Mbote “Kenya”, above at note 7 at 467–68.

127 [2010] eKLR, constitutional petition 1 of 2010 (judgment of 23 June 2010).

128 2010 Constitution, art 22(3)(e).

129 Makoloo et al Public Interest Environmental Litigation, above at note 27 at 42–44.

130 Oshlack v Richmond River Council [1998] 193 CLR 72 at 136 (per Kirby J): “[A] discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain. In such cases the costs incurred have occasionally been described as incidental to the proper exercise of public administration. Upon that basis it has been considered that they ought not to be wholly a burden on the particular litigant.”

131 2010 Constitution, art 22(4).

132 Speech by the Hon Mr Justice Evan Gicheru, the (then) chief justice of the Republic of Kenya on the occasion of the admission of advocates to the role on 7 December 2007 at 2, cited in Makoloo et al Public Interest Environmental Litigation, above at note 27 at 44.

133 Art 165(3) stipulates: “Subject to clause (5), the High Court shall have (a) unlimited original jurisdiction in criminal and civil matters; (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened…”

134 Kameri-Mbote “Kenya”, above at note 7 at 455.

135 2010 Constitution, art 20(4)(b).

136 Id, art 20(4)(a).

137 Above at note 29.

138 [2006] 1 KLR 707.

139 Under art 24(1), the constitution expressly enumerates as relevant factors: (i) the nature of the right or fundamental freedom; (ii) the importance of the purpose of the limitation; (iii) the nature and extent of the limitation; (iv) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (v) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

140 2010 Constitution, art 24(2)(c).

141 Kameri-Mbote and Odote “Courts as champions of sustainable development”, above at note 20 at 35.

Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
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Ibid
Ibid