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ELCPartially AllowedELC Petition No. 37 of 2017· [2020] KEELC 3929 (KLR)

Njenga v Council of Governors & 3 others (Environment and Land Case 37 of 2019) [2020] KEELC 3929 (KLR)

Environment and Land Court
16 January 2020
KBK. Bor
4,219 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's court confirmed public toilets on roads are a constitutional right, but refused to ban fees or force instant fixes, ordering a national sanitation policy instead.

What this practically means

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Executive summary

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The Petitioner, a public interest litigant, petitioned the Environment and Land Court claiming that the Council of Governors and the three national roads authorities had breached Article 42 of the Constitution by failing to provide public toilets and sanitation facilities along Kenya's road network, and by allowing fees to be charged for existing public toilets. He sought a declaration of breach, a prohibitory order against charging fees, and a mandamus compelling the Respondents to set up and operate hygienic public toilets within 60 days. The Respondents opposed, arguing that water and sanitation are county government functions under Part 2 of the Fourth Schedule, that they had no constitutional mandate over sanitation, and that county governments should have been sued. The 3rd Respondent also filed a preliminary objection. The court held that while sanitation is a county function, road transport is a concurrent function of both levels of government under Article 186(2), and that Section 22 of the Kenya Roads Act empowers roads authorities to provide amenities, including toilets, as roadside developments. The right to a clean and healthy environment under Articles 42 and 70 requires no proof of loss or injury. The court found the Council of Governors properly joined and held it impracticable to require suing all counties. However, it declined the prohibitory fee order under Section 120 of the County Governments Act and found the 60-day mandamus impracticable. Instead, it directed the Cabinet Secretary for Transport to chair a Working Group to formulate a sanitation policy for the road network, and directed the Council of Governors to constitute a committee under Section 20 of the Intergovernmental Relations Act to liaise with the roads authorities. Each party was ordered to bear its own costs, the suit being a public interest action.

Key legal issues

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01

Whether the Respondents were wrongly sued

Holding

The roads authorities were properly joined, and the Council of Governors was not improperly sued given matters of common interest to county governments and the impracticability of suing every county

Reasoning

The court held that water and sanitation are county functions, but road transport is concurrent between national and county governments under Article 186(2). Section 22 of the Kenya Roads Act empowers road authorities to provide amenities including toilets as roadside developments. The Council of Governors provides a forum for matters of common interest, and suing all counties traversed by national roads would be impracticable.

p. 4
02

Whether the right to a clean and healthy environment under Article 42 encompasses public sanitation facilities for road users

Holding

Yes; the State must provide clean and decent toilets for road users to give effect to Article 42 and Article 69(1)(g)

Reasoning

Article 42 guarantees every person a clean and healthy environment. Article 69(1)(g) obligates the State to eliminate processes endangering the environment, including relieving oneself in bushes and open spaces along roads. The court found the State needs to provide clean and decent toilets for road users. Article 70 redress requires no proof of loss or injury.

p. 3
03

Whether the specific orders sought (fee prohibition and 60-day mandamus) should issue

Holding

Both refused; a pricing policy is permissible under Section 120 of the County Governments Act and the 60-day compliance period was impracticable; instead a structured policy-formulation process was ordered

Reasoning

The court declined the prohibitory fee order because Section 120 of the County Governments Act empowers agencies to adopt tariffs and pricing policies for public services. The 60-day mandamus was impracticable given budgetary implications. The court instead ordered the Cabinet Secretary to chair a Working Group and the Council of Governors to constitute a committee under Section 20 of the Intergovernmental Relations Act to formulate the sanitation policy.

p. 4

Legal principles established

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  • An applicant enforcing the right to a clean and healthy environment under Article 70 need not demonstrate loss or injury
  • The right to a clean and healthy environment includes a component giving access to courts and a right to appropriate remedies
  • Section 22 of the Kenya Roads Act empowers road authorities to provide amenities including toilets for road users
  • Road transport falls under the concurrent jurisdiction of national and county governments under Article 186(2), with cooperation required under Article 189

Court orders

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  1. 1.Declined a prohibitory order restraining the Respondents from charging fees for use of existing public sanitary facilities
  2. 2.Found it impracticable for the Respondents to set up and operate functional public toilets throughout the road network within 60 days as sought
  3. 3.Directed the Cabinet Secretary in charge of transport to constitute and chair a Working Group including representatives of all Respondents to formulate a policy for the provision of toilets and other sanitation facilities on the country's road network
  4. 4.That the national transport policy should incorporate toilets and sanitation facilities as part of roadside developments in road designs for existing and new roads
  5. 5.Directed the 1st Respondent to constitute a committee under Section 20 of the Intergovernmental Relations Act to liaise with the 2nd to 4th Respondents through the Ministry in charge of transport in formulating and implementing the policy
  6. 6.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 2(1), 3(1), 10, 19, 20, 21, 22, 25, 28, 42, 43, 69, 70, 159, 162, 165, 186(2), 189, 259; Fourth Schedule Parts 1 and 2
  • Environment and Land Court ActSections 4 and 13
  • Intergovernmental Relations ActSections 5, 19 and 20
  • Kenya Roads ActSections 3, 4, 6, 7, 9, 10 and 22
  • Environmental Management and Coordination ActSections 3; Part VIII
  • Traffic Actgeneral
  • County Governments ActSections 103, 104, 105, 106, 107, 120; Part XI
  • Urban Areas and Cities ActSection 6(3)
Jurisdiction invoked
Articles 42, 69, 70, 162(2) and 165 of the Constitution; Sections 4 and 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njenga v Council of Governors & 3 others (Environment and Land Case 37 of 2019) [2020] KEELC 3929 (KLR)", Case Analysis (2020). ELC Petition No. 37 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3929/eng@2020-01-16

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