Theoretical scenario

Residents of Lakewood Estate, a middle-income residential area in Nairobi, have been grappling with severe air pollution caused by emissions from a nearby informal industrial zone. Every evening, toxic smoke from open burning and unregulated factories blankets the estate, causing respiratory issues, especially among children and the elderly. What legal recourse do they have?

Definition

Climate litigation refers to legal actions aimed at addressing climate change, whether by holding governments to account for inadequate climate action or suing corporations for violating environmental laws or contributing to carbon emissions. These suits typically seek to:

• Enforce environmental laws
• Promote public accountability
• Push for more robust climate policies

Kenya’s Legal Framework Supporting Climate Justice

Kenya’s progressive constitutional and statutory regime provides a solid foundation for climate litigation. The key legal instruments include:

• The Constitution of Kenya, 2010, which guarantees the right to a clean and healthy environment (Article 42) and mandates sustainable management of natural resources (Article 69).
• The Environmental Management and Co-ordination Act, Cap. 387 (EMCA), which empowers citizens to seek judicial redress for environmental harm.
• Institutional support: EMCA establishes the following key bodies:
• NEMA (National Environment Management Authority): The principal environmental regulator.
• NECC (National Environmental Complaints Committee): An ombudsman for public complaints and environmental investigations.
• NET (National Environmental Tribunal): A specialized forum for resolving environmental licensing and Environmental Impact Assessment (EIA) related disputes.

Applicable Legal principles

• Polluter pays principle– This foundational principle holds that those who cause environmental harm must bear the cost of managing and remedying the damage. In this case, the industrial operators emitting toxic smoke would be liable for mitigating the pollution, compensating affected residents, and potentially covering the costs of environmental restoration.
• Precautionary principle– Where there is a threat of serious or irreversible environmental harm, lack of full scientific certainty should not be used as a reason to delay preventive measures. The burden shifts to the polluters or regulators to demonstrate that their actions are not harmful. For Lakewood, this means interim relief (such as injunctions) can be granted even before definitive proof of long-term harm is produced.
• The principle of intergenerational equity- This principle emphasizes the duty to preserve the environment not only for present communities but also for future generations. In the Lakewood context, this is particularly relevant given the impact of pollution on children and the long-term health and environmental risks they may face.
• The principle of sustainable development- Actions that meet the needs of the present must not compromise the ability of future generations to meet theirs. This principle requires balancing economic activities (such as industrial operations) with environmental protection and public health.
• The right to a clean and healthy environment- Enshrined in Article 42 of the Constitution of Kenya, this principle affirms that every person is entitled to an environment that is not harmful to their health and well-being. This right is enforceable through the courts, and its violation constitutes a justiciable claim.
• Public participation and access to justice- Environmental governance requires meaningful public involvement and access to judicial mechanisms. Residents of Lakewood Estate have the right to be heard, to seek judicial redress, and to challenge both state inaction and corporate misconduct through public interest litigation or class actions.

Strategic Legal Approach for Lakewood Residents

Residents of Lakewood Estate can initiate a constitutional petition before the Environment and Land Court (ELC), asserting violation of their right to a clean and healthy environment as guaranteed under Article 42 of the Constitution and section 3(3) of EMCA. Given the relaxed locus standi requirements in environmental matters, the residents may pursue the matter as a class action. An application for an interim injunction to restrain the continuation of harmful emissions pending trial would be advisable to mitigate ongoing harm.

It is important to note that climate litigation claims typically require one to two years to resolve, contingent upon court caseloads.

Further, Lakewood residents can apply for cancellation of the industry’s license at the National Environment Tribunal.

Available legal remedies

1. Injunctions (Temporary or Permanent)

The ELC may order the immediate cessation of harmful activities including open burning and unregulated emissions to prevent further environmental damage pending the final determination of the suit.

• Compensation:

Lakewood residents may seek monetary damages for health impacts, property loss, or other adverse effects attributable to pollution.

• Declaratory Orders:

The ELC may formally declare that the residents’ right to a clean and healthy environment has been infringed, thereby reinforcing legal protections for affected communities.

• Mandamus Orders

The ELC may compel government agencies to enforce environmental regulations, regulate informal industrial activities, and undertake environmental impact assessments.

• Cancellation of licenses:

Lakewood residents may apply for cancellation of the industry’s license at the National Environmental Tribunal arguing that the Environmental Impact Assessment (EIA) license was issued unlawfully or unprocedurally.

• Policy and Regulatory Reform

Successful litigation can catalyze improvements in environmental legislation and policy enforcement, enhancing public health and ecological sustainability.

Conclusion

Climate litigation is no longer a preserve of international courts, it is an actionable and strategic tool within Kenya’s legal system. For communities like Lakewood, it provides a meaningful pathway to justice and environmental accountability.

For more information, please do not hesitate to contact us at info@cfllegal.com.