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.
Kenya has experienced litigation challenging an EIA licence issued for construction of a 1050MW coal power plant. In 2019, the National Environmental Tribunal (NET) in Save Lamu & Others v NEMA & Another set aside the decision of the National Environmental and Management Authority (NEMA) to issue the EIA for because of, among other reasons;
- Breach of domestic climate change law: Failure to consider climate change issues and the Climate Change Act in the EIA study and approval process; and
- Breach of public participation requirements in the EIA study process.
Human rights grounds could also be used to challenge government’s approval of climate unfriendly projects. The Constitution guarantees the right to life (Article 26) and the right to a clean and healthy environment for present and future generations (Article 42). The state of the environment can be a threat to the right to life, and the right of life encompasses the right to clean and healthy environment (Peter K. Waweru v Republic). Secondly, projects that impact on the quality of the environment or are considered to have harmful effects which may interfere with the physical or mental well-being of persons could amount to violation of the right to clean and healthy environment (Adrian Kamotho Njenga v Council of Governors & 3 Others).
While the Tribunal in Save Lamu case did not deal with the issue of standing, the Court of Appeal has held that the expanded locus standi in environmental matters applies to cases challenging EIA licencing process (National Environmental Tribunal v Overlook Management Limited & 5 others). The Constitution and the Environmental Management and Coordination Act (EMCA) allow any person to apply to court to enforce environmental rights without the need to demonstrate that any person has or is likely to incur loss or suffer an injury (Art. 70(3) Constitution; Sec. 3 EMCA; Joseph Leboo & 2 others v Director Kenya Forest Services & another).
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.