Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] KEELC 2776 (KLR)

Minutes and attendance lists showed 27 consultative meetings between 2006 and 2017 involving manufacturers, retailers and large consumers of plastic bags. From 2014-2015 the agenda explicitly concerned stopping the use of plastic bags. Public participation does not require every individual to be consulted, nor that views given prevail; the duty is to consult in good faith and consider views.

The purpose of parliamentary scrutiny is to afford Parliament an opportunity to interrogate and revoke statutory instruments. Articles 37 and 119 and the Standing Orders provide public petitions as an alternative mechanism. The Departmental Committee on Environment and Natural Resources considered the petition and Gazette Notice and did not recommend revocation, so the Notice remains in force.

Following the Court of Appeal in British American Tobacco, the court held that a subsidiary instrument deriving directly from an enabling Act is 'complementary' to it. The Gazette Notice was issued under Sections 3 and 86 of EMCA and complements the environmental governance principles in Section 3 of EMCA, so no regulatory impact statement was required.

The court accepted strict compliance with Section 5 notification requirements may have been lacking, but held the spirit of the provision was met since stakeholders were notified, consulted and heard. Natural justice is pragmatic and flexible; there was no evidence of ill will or bias, and the ban affected only carrier and flat bags, not all plastics.

Applying De Smith, Woolf & Jowell's formulation, a legitimate expectation requires inducement by the decision-maker. The petitioners adduced no evidence of any promise or inducement that plastic bags would not be banned, so the doctrine was not engaged.

EMCA must be construed to give effect to Article 42 and Article 69 of the Constitution, including the duty to eliminate processes and activities likely to endanger the environment. Banning is one way of eliminating. If the law did not confer such power it would fail the constitutional requirement of giving effect to the right to a clean and healthy environment.

The court read the Constitution as a whole and found the Notice satisfied statutory and constitutional imperatives on delegated legislation. The ban met the Article 24 proportionality requirements. There was no evidence that plastic industries were shut down or that health risks and increased costs resulted from the ban.

The court found the challenge misconceived because the impugned Notice itself contained no penalty provision; the penal consequence flows from a separate Act of Parliament which was not the subject of the suits.