Retail Trade Association of Kenya (RETRAK) v National Environmental Management Authority (NEMA) & another (Environment and Land Petition E023 of 2026) [2026] KEELC 4365 (KLR)
The bottom line
#Kenya's Environment and Land Court has stopped NEMA from forcing retailers to police plastic packaging compliance for products made by manufacturers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Application meets the well-established threshold for the grant of interlocutory injunctions.
- 2.Whether the Applicant has established a case for the grant of conservatory orders.
- 3.Who bears the costs of the application?
Key legal issues
#Whether the Applicant established a prima facie case with a probability of success
Yes. On uncontroverted evidence, NEMA appeared to have delegated its mandate under Section 9 of EMCA by requiring downstream retailers to police plastic-packaging compliance for packaging they neither manufacture, import nor control.
The Court applied the Mrao definition of a prima facie case. The Applicant's members hold rights to lawful trade, protection of property under Article 40, and fair administrative action under Article 47. The directives of 21 January and 3 February 2026 required retailers to obtain producer licences and PRO clearances. The Respondents filed no rebuttal, so the Court concluded the first Giella hurdle was surmounted without making conclusive findings.
Whether the Applicant demonstrated irreparable injury
Yes. The harm - criminal prosecution, raids, store closures, operational paralysis and jeopardy to over 250,000 jobs - extends beyond quantifiable financial loss and cannot be adequately compensated by damages.
Applying Pius Kipchirchir Kogo v Frank Kimeli Tenai, the Court held that although the Applicant deposed to losses of over Kshs 500,000,000 every 24 hours, the injury goes beyond compensable financial loss. The threatened criminal prosecutions, administrative raids and arbitrary store closures would cause operational paralysis not adequately remediable by a future award of damages.
Where the balance of convenience lies
It overwhelmingly favours the Applicant: if restrained, NEMA remains free to enforce against upstream producers and suffers no prejudice; if the injunction is withheld, the Applicant's members face existential commercial harm.
Applying the comparative mischief test from Kogo, the Court reasoned that granting the injunction merely stops NEMA from using retailers as enforcement agents while its mandate against primary producers remains intact. Withholding it would expose retailers to commercial collapse, job losses, spoilage and criminal sanctions for matters outside their control.
Whether conservatory orders should issue
Yes. A strong prima facie case of unconstitutional sub-delegation of regulatory power under Articles 40 and 47 was shown, and suspension of the directives serves the public interest and preserves the substratum of the Petition.
The Court distinguished conservatory orders from private-law injunctions per Munya v Kithinji, noting their public-law character. Requiring private retail employees to verify NEMA certificates and PRO clearances without access to an official database offends Article 47; punitive closures and seizures infringe Article 40. Suspending the directives lets NEMA focus on actual producers while the Petition is heard.
Legal principles established
#- Failure of a respondent to oppose an application does not automatically entitle an applicant to the orders sought; the court must independently satisfy itself that the legal thresholds for the remedies are met.
- Conservatory orders bear a public-law character distinct from private-law interlocutory injunctions.
- A state regulator may not sub-delegate its statutory verification, inspection and enforcement functions to private downstream actors such as retailers, as that offends Article 47's guarantee of fair administrative action.
Court orders
#- 1.An interlocutory injunction restraining the 1st Respondent, its agents, servants, enforcement officers, or armed security personnel from conducting administrative raids, closing stores, seizing inventory, arresting, or initiating criminal prosecutions against the Petitioner's members for plastic packaging violations arising from primary manufacturers and suppliers of the products sold in their stores, pending the hearing and determination of the Petition.
- 2.A conservatory order restraining the 1st Respondent, its agents, servants, enforcement officers, or any persons acting under its authority from requiring the Petitioner's members to perform producer-registration, PRO-registration, EPR-payment, plastic-packaging licensing, inspection, verification, or enforcement functions as a condition of receiving, warehousing, displaying, or selling sealed third-party consumer goods, pending the hearing and determination of the Petition.
- 3.The costs of the Application shall abide the outcome of the Petition.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22(1), 23, 24 and 258 of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act (No. 19 of 2011); Section 9 of the Environmental Management and Co-ordination Act (EMCA)
Relief refused
#Costs of the application to the Applicant
The court did not award costs immediately; costs were deferred to the outcome of the Petition.
Costs
The costs of this Application shall abide the outcome of the Petition.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the mere failure of a respondent to oppose an application does not automatically entitle an applicant to the orders sought.
It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.
requiring private retail employees to evaluate and verify complex NEMA Producer Registration Certificates, Plastic Packaging Licences, and monthly PRO payment clearances, particularly without access to a centralised, searchable oficial NEMA database, is unreasonable and therefore ofiends the principles of Article 47.
An interlocutory injunction restraining the 1st Respondent, its agents, servants, enforcement oficers, or armed security personnel from conducting administrative raids, closing stores, seizing inventory, arresting, or initiating criminal prosecutions against the Petitioner's members for plastic packaging violations arising from primary manufacturers and suppliers of the products sold in their stores.
The costs of this Application shall abide the outcome of the Petition.
Issues in the judgment
#The judgment does not disclose the petition or miscellaneous case number under which the Notice of Motion dated 19th June 2026 was filed, so the case number cannot be recorded.
The judgment does not state the court station or the petition number; the court is inferred from the citation of Section 13 of the Environment and Land Court Act but is not expressly named in the text provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Retail Trade Association of Kenya (RETRAK) v National Environmental Management Authority (NEMA) & another (Environment and Land Petition E023 of 2026) [2026] KEELC 4365 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4365/eng@2026-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.