Law Society of Kenya v Attorney General & 3 others
The bottom line
#Kenya's Environment and Land Court dismissed the Law Society's challenge to GMO maize approvals, confirming GMO projects need NEMA's environmental licence before starting.
What this practically means
#Executive summary
#Key legal issues
#Sequencing of NBA approval and EIA licensing
NBA approval comes first; ESIA and SEA reports must then be availed and an EIA licence issued by NEMA before the project commences, whether trials or release to the market
Section 7(2)(a) and 28 of the Biosafety Act give the NBA mandate over risk assessment and approval of GMOs. Part V requires consultation with regulatory bodies including NEMA. Section 58 of EMCA requires an EIA licence before a project proceeds. The court analogised to other sectors where statutory bodies approve projects before NEMA authorises EIA reports and issues licences.
Status of the Cabinet Despatch under the Statutory Instruments Act
The Despatch is not a statutory instrument; it communicates a policy position and is not founded on any legislative power
Applying the definition in section 2 of the Statutory Instruments Act and the reasoning in Republic v AG ex parte Moriasi, an instrument is a statutory instrument only if made in execution of a power conferred by an Act. The Cabinet, under article 52, formulates policy; the Despatch did not cite any statutory power.
Right to information claim
Claim fails; no written request was made as required by section 8 of the Access to Information Act and section 3A(2) of EMCA
The court held that the petitioner should have asked in writing for information on the lifting of the ban and the KALRO approval. No written request was alluded to by any party. The exhaustion mechanism under section 14 of the Access to Information Act was also not invoked.
Public participation before the Cabinet decision and the NBA approval
NBA complied with the Biosafety (Environmental Release) Regulations, 2011; no law requires the Cabinet to engage the public before arriving at its decisions
The NBA gazetted the application, advertised in newspapers, held a public session at KICC and received views. Following Samow Mumin Mohamed, acts of public bodies are presumed regularly done and the petitioner bore the burden of proving departure. As to the Cabinet, no law or authority was shown requiring public engagement before Cabinet decisions.
New issues raised by supplementary affidavit
The challenge to the legality of Cabinet composition was not pleaded and could not be entertained; parties are bound by their pleadings
A supplementary affidavit responds to issues raised in a replying affidavit and is not an avenue for new issues, save in exceptional circumstances. The constitutionality of the Cabinet composition was a substantive issue not raised in the petition and could not be interrogated.
Nature and purpose of the precautionary principle
The principle guides governance under uncertainty and requires preventive action in the face of uncertainty; the NBA's safeguards fall within its confines
Drawing on Principle 15 of the Rio Declaration, EMCA's definition, Leatch v National Parks and Wildlife Service and Trouwborst, the court outlined four parameters: preventive action under uncertainty, shifted burden of proof, exploring alternatives, and public participation. The existing biosafety framework embodies these parameters.
Legal principles established
#- NBA approval must precede preparation of EIA/ESIA/SEA reports; the two processes cannot run simultaneously, and an EIA licence from NEMA is required before a GMO project commences
- A Cabinet Despatch communicating a policy position is not a statutory instrument subject to the Statutory Instruments Act
- A claim of violation of the right to information fails where the information was never requested in writing
- The burden of proving absence of public participation lies on the petitioner, who must raise firm and credible evidence of departure from the law
- A party seeking redress for violation of a constitutional right must set out the violation with reasonable precision (Anarita Karimi Njeru principle)
Court orders
#- 1.The petition dated January 16, 2023 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Article 70(1) of the Constitution and section 3(3) of the Environmental Management and Co-ordination Act (jurisdiction of the Environment and Land Court under section 8 of the Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Attorney General & 3 others", Case Analysis (2023). Environment and Planning Petition 2 of 2023 (Formerly Petition No 007 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20682/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.