Whilst no climate litigation has been brought by citizen(s) challenging Kenya’s national climate policy or law, the following grounds could form a basis:
- Human Rights: Enforcement of human rights provisions in the constitution. The Constitution guarantees the right to clean and healthy environment and the right to life which could be threatened by climate change impacts. The government has a duty to protect and fulfil rights and should take legislative and policy measures to ensure realisation of these rights.
- International Law: Government’s non-compliance with international obligations. The Constitution recognises ratified treaties and general rules of international law as part of Kenyan law and are therefore binding on government (Art. 2 Constitution; Kituo cha Sheria & 8 Others v Attorney General). Having ratified the Paris Agreement and submitted its NDC committing to enhance resilience, the government is bound to put in place sufficient measures to achieve its NDCs and obligations under the Agreement (see e.g Satrose Ayuma and 11 Others v Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme & 3 Others).
The remedies that could be sought include: declaration of invalidity, an order compelling the government to put in place sufficient measures in compliance with international obligations, as was done in the Satrose Ayuma case, or human rights obligations and compensation for any victim of such a violation (Art. 70 Constitution; sec 23 Climate Change Act).
The locus standi requirement is relaxed and quite broad. Any person can institute proceedings in Court to enforce the right to clean and healthy environment. This includes a person/association acting on behalf of another, in public interest or in the interest of a group (Art. 22, 70 & 258 Constitution). The applicant does not need to demonstrate that any person has incurred loss or suffered injury (Art. 70 Constitution; Climate Change Act, sec. 23; Moffat Kamau & 9 Others v Aelous Kenya Limited & 9 Others).
The absence of such cases could be attributed to;
- From a mitigation perspective, Kenya’s GHGs emissions are generally low in comparison to other countries in the world, which could then affect citizen’s demand for stronger mitigation actions.
- A relatively low awareness of the government’s climate policies and a lack of understanding of the government’s role in adaptation, especially among the most vulnerable communities.
For more country specific context and relevant national climate change law see: https://climate-laws.org/geographies/kenya
This country report has been produced by Iona McEntee, C2LI Senior Research Assistant and Lydia Omuko-Jung, C2LI Legal Analyst and C2LI National Rapporteur for Kenya. This summary is based on Lydia Omuko-Jung, “Climate Change Litigation in Kenya: Possibilities and Potentiality” in F. Sindico and M. Moise Mbengue, Comparative Climate Change Litigation: Beyond the Usual Suspects, Springer, 2021.