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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
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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.

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

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References

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

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26 Id at 729.

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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 Ibid.

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

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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 Ibid.

40 Ibid.

41 Id at 31.

42 Ibid.

43 Ibid.

44 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 Ibid.

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

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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).

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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 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.

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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 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 52Google Scholar.

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)Google Scholar.

123 2010 Constitution, art 19(1).

124 Id, art 20.

125 Sands, PPrinciples of International Environmental Law (2000, Cambridge University Press)Google Scholar 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.