Kenya Association of Manufacturers & 2 others v Cabinet Secretary, Ministry of Environment and Natural Resources & 3 others (Petition 32 of 2017) [2017] KEELC 1967 (KLR)
The bottom line
#Kenya's plastic bag ban stayed in force after the Environment and Land Court ruled manufacturers failed to show the ban should be suspended.
What this practically means
#Executive summary
#Key legal issues
#Whether the Cabinet Secretary had power under Section 86 of the EMCA to issue the ban
The court indicated, with caution and without conclusive finding, that the 1st Respondent appears to have power to issue the notice; the question of excess of power is reserved for the substantive hearing
The court examined Sections 3 and 86 of the EMCA and held that Section 86 empowers the Cabinet Secretary to identify dangerous materials and prescribe management measures. It noted that the scope of those powers, and whether they were exceeded, must be conclusively determined at the substantive hearing, and that Section 86 should be interpreted in light of the constitutional environmental framework.
Whether there was consultation and public participation before issuance of the notice
The court found evidence of multiple stakeholder meetings but deferred the question of whether they satisfy the consultation criteria to the substantive hearing
A perusal of the annextures to the affidavit of William Kiprono showed a number of meetings with key plastic sector players including KAM, RETRACK, KEPSA and supermarkets, with the post-2013 meetings focused on stoppage of plastic carrier bags. Whether these meetings satisfy the criteria on consultation and public participation was left for the substantive hearing.
Whether absence of a regulatory impact statement under Section 6 of the Statutory Instruments Act was established
The requirement applies where the instrument imposes significant costs on the community, and at this stage the applicant had not placed evidence of any cost imposed on it or its members
The court observed that the regulatory impact statement obligation under Sections 6 and 7 of the Statutory Instruments Act is triggered where the statutory instrument imposes significant costs on the community or part of it. Since the applicant had not placed before court evidence of costs imposed by the notice, that ground was not made out at the interlocutory stage.
Whether Article 47 fair administrative action rights were violated
It is doubtful that Article 47 contemplates that a legal notice affecting the entire population be treated as administrative action requiring individual hearings
The court reasoned that the impugned Gazette Notice affects the entire population of Kenya, and that it is doubtful that Article 47 contemplates each member of the population, natural or corporate, being individually heard before a notice of the nature of an environmental precautionary measure is issued. It deferred making conclusive findings.
Whether the public interest favoured granting or refusing the conservatory order
The application was rejected because granting it would derogate the precautionary principle and severely injure the public interest in a clean environment for over 40 million Kenyans
The court weighed the applicant's apprehended commercial loss against the right of over 40 million Kenyans to a clean environment. It held that suspending the ban would allow offensive plastic bags to continue suffocating the environment while serving commercial interests, offending the constitutional and legal environmental framework and subordinating public interest to commercial interests.
Legal principles established
#- In a conservatory order application the court does not make conclusive findings of fact or law; it examines whether a prima facie case is made out, what prejudice would follow refusal, and the public interest
- Conservatory orders in public law litigation serve the public interest and are not assessed on private-law interlocutory injunction criteria
- Commercial interests of a regulated sector may be subordinated to the public interest in environmental protection when a conservatory order is sought
Court orders
#- 1.The 1st Petitioner's Notice of Motion dated 28th July 2017 seeking a conservatory order staying implementation of Gazette Notice Nos. 2334 and 2356 is rejected
- 2.Costs of the Application shall be in the cause
- Jurisdiction invoked
- Articles 22, 23 and 47 of the Constitution of Kenya, 2010 read with Section 3 of the Environmental Management and Co-ordination Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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 1967 (KLR)", Case Analysis (2017). Consolidated Petition and Judicial Review Motion (Notice of Motion dated 28th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1967/eng@2017-08-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.