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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
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.
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References
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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.
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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.
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111 Id at 593 and 594–95.
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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.
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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.
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128 2010 Constitution, art 22(3)(e).
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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…”
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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.