Kenya

The Save Lamu & Others v NEMA & Another was also filed against a private actor (the project owner) for failure to undertake proper EIA study in accordance with statutory and constitutional requirements. In addition, a case against private actors for allegedly breaching the law by carrying out operations that contribute/likely to contribute negatively to climate change could be filed based on the following grounds:

• Human rights: The constitution guarantees the right to clean and healthy environment and this right can be enforced against private entities since the Constitution allows for horizontal application of rights (Satrose Ayuma case).
• National climate change law: Plaintiffs can also pursue a claim under Section 23 of the Climate Change Act on the grounds that the private entities’ actions have or are likely to adversely affect mitigation or adaptation efforts or for violation relating to climate change duties. The Climate Change Act and Environmental Management and Coordination Act impose duties on private entities, including prescribed emission limits that should not be exceeded and a requirement of installation of technologies to monitor and mitigate/control GHGs.
• The third option could be to pursue a tort-based cause of action. However, this is likely to be more challenging than the other two grounds because in tort-based cases the Plaintiff has to prove they suffered an injury or loss to themselves or their property (Kenya Port Authority v East African Power and Lighting Company) and prove that said injury or loss is a result of the defendant’s actions (David Ndetei v Orbit Chemicals Industries Limited).

For constitutional claims and claims under Section 23 Climate Change Act, the standing requirement is relaxed and any person in Kenya can institute proceedings in Court  without the need to demonstrate that any person has incurred loss or suffered injury (Art. 22 & 70(3) Constitution; Section 23(3) Climate Change Act; Moffat Kamau & 9 Others v Aelous Kenya Limited & 9 Others).

In the tort-based cases, with the exception of public nuisance tort, plaintiffs are required to allege an injury/loss resulting from the defendant’s actions to have standing (Kenya Port Authority v East African Power and Lighting Company). The tort of public nuisance is however subject to the liberal standing requirements under Art. 70 of the Constitution and Section 3 of Environmental Management and Coordination Act (Edward Nyaoga Onsongo v Job Mekubo Mogusu).

The remedies the court may grant include: compensation, injunction to prevent, stop, or discontinue the act or omission and orders compelling a public officer to take measures to prevent or discontinue the act or omission (Sec. 23(2) Climate Change Act; Art. 70(2) Constitution).

The lack of litigation against private actors could be attributed to the high costs of litigation particularly in private law cases i.e. lawyer’s fees, filing fees, and the likelihood of paying the cost of litigation for unsuccessful claims. Additionally, climate change litigation is nascent even by global standards and issues relating to climate change in Kenya are canvassed in other types of litigation.