Kayole Mtaa Safi Initiative (Suing through its elected official Michael Oyugi) & 2 others v National Environment Management Authority & 7 others (Petition E022 of 2024 & Environment and Planning Petition E026 of 2024 (Consolidated)) [2026] KEELC 1192 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed NEMA's biodegradable garbage bags notice because it issued it without the required public consultation, while upholding KEBS standards.
What this practically means
#Executive summary
#Key legal issues
#Whether the impugned Public Notice of 8th April 2024 was issued with the required public participation and fair administrative action
The notice was issued in violation of articles 10 and 47 and the Second Schedule of the Sustainable Waste Management Act; NEMA did not comply with the prescribed consultation requirements and relied retrospectively on the 2017 gazette notices
The Second Schedule of the Act prescribes how public consultation on policies, regulations, plans or actions must be conducted, including publication in specified media and invitation of comments. NEMA's replying affidavit did not disclose compliance with paragraphs 1(c) and (d) or the invitation of comments under paragraph 2(c). Its reliance on the 2017 gazette notices banning plastic bags was an impermissible retrospective attempt to import consultation, especially as the impugned notice was grounded in the 2022 Act. Late publication also consumed 15 days of the 90-day compliance period.
Whether the Respondents failed to establish waste management infrastructure and institutions required under the Sustainable Waste Management Act
The 3rd Respondent had failed to establish the Waste Management Council under section 6(1); mandamus was issued to compel it within six months, and the 4th Respondent was directed to establish MRFs in counties lacking them
The Petitioners alleged that no MRF existed and that the Waste Management Council had not been established. The 4th Respondent deposed that counties are at varying stages of implementation, citing Kakamega, Meru and Kiambu, and that colour coding systems exist in Embu, Vihiga and Uasin Gishu. The Petitioners did not contradict this evidence, so the sweeping claim of total infrastructure failure failed. However, no response was given to the failure to establish the Council, justifying mandamus and a directional order.
Whether KEBS failed to set standards for biodegradable garbage bags and seedling potting bags
No violation; KEBS established and published generic standards applicable to bin liners and seedling bags
KEBS deposed, through its Director of Standards Development, that it had developed and adopted national and international (ISO) standards covering home-compostable, industrial-compostable and biodegradable plastic products, including bin liners and seedling potting bags, and listed them. The court found the absence of adequate supervision for compliance may arise, but not the absence of applicable standards. The Petitioners' expert evidence did not displace this.
Whether the rushed implementation and cost of transition violated the Petitioners' rights
The claim failed because the Petitioners adduced no comparative cost analysis and did not explain how the notice contradicted section 3(i) of the Act
The Petitioners asserted a cost increase of over 1000% and disruption of waste systems but provided no comparative cost analysis supporting the assertion that biodegradable bags would be more expensive to manufacture. The burden lay on them to discharge it. Similarly, on section 3(i) (inculcating responsible public behaviour), they did not explain how the publication of the notice per se was inconsistent with that objective.
Legal principles established
#- A petitioner seeking enforcement of fundamental rights must, per Anarita Karimi Njeru, identify the specific constitutional provisions infringed, set out the factual basis, and demonstrate a nexus between the acts complained of and the alleged breach.
- The burden of proof in a suit lies on the party who would fail if no evidence were adduced on either side, and the burden of proving any specific fact rests on the person who wishes the court to accept its existence.
- An administrative decision taken without the public consultation required by the Second Schedule of the Sustainable Waste Management Act violates articles 10 and 47 of the Constitution.
- Late publication of a public notice consumes part of the compliance period and disadvantages the public required to comply.
Court orders
#- 1.A declaration that the public notice issued by the 1st Respondent dated 8th April 2024 is in contravention of articles 10 and 47 as read with article 21(1), (2) and (3) of the Constitution and is therefore null and void
- 2.An order of certiorari quashing the public notice by the 1st Respondent dated 8th April, 2024
- 3.An order of mandamus compelling the 3rd Respondent to establish the Waste Management Council under Section 6(1) of the Sustainable Waste Management Act within six (6) months from the date of the judgment
- 4.The 4th Respondent directed, within a period of six (6) months, to establish a Material Recovery Facility and/or related infrastructure under section 14(1) of CAP 387C in the Counties that do not have an MRF in place
- 5.Each party to bear their costs of the Petition
- Jurisdiction invoked
- Article 23(1) of the Constitution of Kenya, 2010 (jurisdiction to hear and determine applications for redress of denial, violation or threat to a right or fundamental freedom in the Bill of Rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kayole Mtaa Safi Initiative (Suing through its elected official Michael Oyugi) & 2 others v National Environment Management Authority & 7 others (Petition E022 of 2024 & Environment and Planning Petition E026 of 2024 (Consolidated)) [2026] KEELC 1192 (KLR)", Case Analysis (2026). Petition E022 of 2024 (consolidated with Petition E026 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1192/eng@2026-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.