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ELCOtherConsolidated: Nairobi ELC Petition No. 32 of 2017; Nairobi High Court Judicial Review Misc Civil Application No. 412 of 2017; Nairobi ELC Petition No. 35 of 2017· [2017] KEELC 1248 (KLR)

Kenya Association of Manufacturers & 2 others v Cabinet Secretary Ministry of Environment and Natural Resources & 3 others (Petition 32 of 2017) [2017] KEELC 1248 (KLR)

Environment and Land Court
13 October 2017
BEB M Eboso
2,059 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's plastic bag ban survived its first court hurdle, with the Environment and Land Court ruling the challenge important enough for a larger bench of judges.

What this practically means

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Executive summary

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This is a certification ruling in a consolidated petition challenging the Legal Notice dated 28 February 2017 (Gazette Notice Nos. 2334 and 2356) by which the Cabinet Secretary for Environment and Natural Resources, acting under Sections 3 and 86 of the Environmental Management and Co-ordination Act, banned the use, manufacture and importation of carrier and flat plastic bags used for commercial and household packaging. The petitioners - the Kenya Association of Manufacturers, two private citizens and public-interest litigant Okiya Omtata Okoiti - allege lack of public participation, violations of various constitutional articles, failure to submit the notice to Parliament under Section 11 of the Statutory Instruments Act, abuse of mandate, and vagueness. They sought declarations that the notice is unconstitutional, null and void, and an order quashing it. The ruling, however, decides only a preliminary question: whether the petition raises substantial questions of law warranting certification under Section 21 of the Environment and Land Court Act for hearing by an uneven bench. Applying the Chunilal v Mehta and Maina Kiai tests, the court found the questions unsettled, of general public importance, and impactful on the population and environment. The 3rd Petitioner abandoned his own certification request; the Respondents supported certification. The court certified the petition and referred the consolidated file to the Chief Justice to constitute a bench, directing the Registrar to transmit the typed proceedings forthwith. The substantive petition remains undetermined; no costs order was made.

Key legal issues

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Whether the consolidated Petition raises substantial questions of law warranting certification for a bench of at least three judges

Holding

Yes. The questions raised are unsettled, of general public importance, and bear a significant impact on the Kenyan population and environment; the Petition was certified and referred to the Chief Justice.

Reasoning

The court applied Section 21(2) of the Environment and Land Court Act and the Chunilal v Mehta and Maina Kiai formulations of a substantial question of law. It identified several unsettled questions: whether the Cabinet Secretary violated the Constitution and cited statutes in issuing the ban; the proper legal approach when subsidiary legislation is invoked under the precautionary principle; the appropriate remedy for aggrieved parties; and the role of courts in environmental governance. None of Kenya's superior courts has pronounced on these issues, and the Legal Notice generated substantial public interest, warranting a bench of at least three judges.

p. 5

Legal principles established

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  • The test for certification under Section 21 of the Environment and Land Court Act is whether the matter raises a substantial question of law - one of general public importance, affecting substantial rights, unsettled, not free from difficulty, or calling for discussion of alternative views.
  • A petition challenging a subsidiary legislative instrument of significant public interest and raising unsettled questions on the precautionary principle merits certification for hearing by an uneven bench.

Court orders

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  1. 1.Certification that the consolidated Petition raises substantial questions of law
  2. 2.Referral of the consolidated Petition to the Chief Justice to constitute a bench of judges in terms of Section 21(2) of the Environment and Land Court Act
  3. 3.The Registrar to cause the proceedings to be typed forthwith and forward the consolidated file to the Chief Justice forthwith
  4. 4.Parties to be kept apprised
Jurisdiction invoked
Section 21(2) of the Environment and Land Court Act; Article 165(3)(b) and (d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Association of Manufacturers & 2 others v Cabinet Secretary Ministry of Environment and Natural Resources & 3 others (Petition 32 of 2017) [2017] KEELC 1248 (KLR)", Case Analysis (2017). Consolidated: Nairobi ELC Petition No. 32 of 2017; Nairobi High Court Judicial Review Misc Civil Application No. 412 of 2017; Nairobi ELC Petition No. 35 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1248/eng@2017-10-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.