Kenya

Tending Towards Greater Eco-Protection in Kenya: Public Interest Environmental Litigation and Its Prospects Within the New Constitutional Order

“…115 Nonetheless, relying on section 3(3)(b) of the EMCA, he ordered the minister for environment to assess the status of the land and take appropriate action, effectively constituting an order to a public authority to regulate private property notwithstanding the private interest. 116 This ruling explicitly confirmed that private property rights can be regulated by public law for the purposes of environmental protection, especially for sustainable development. 117 However, notwithstanding the express provision for the liberal interpretation of locus standi under article 3 of the EMCA, environmental actions have continued to be frustrated through a restrictive interpretation of locus standi.…”

“…117 However, notwithstanding the express provision for the liberal interpretation of locus standi under article 3 of the EMCA, environmental actions have continued to be frustrated through a restrictive interpretation of locus standi. 118 While the provision by the EMCA of a clear legislative basis for the expansion of the scope of litigation and the category of litigants was expected to engender progressive, consistent and coherent jurisprudence deriving from public interest litigation, this was not always the case. 119 In some instances, the judicial approach to locus standi has been contradictory, inconsistent and incoherent.…”

“…Otherwise, public interest [issues] are litigated upon by the Attorney General or such other body as the law sets out." 120 Reasons for this curiosity, whereby clear provisions engender inconsistent and contradictory decisions, have been cited as including insufficient environmental law training amongst the judiciary and, as was illustrated by Waweru v Republic, the emanation of civil environmental claims from cases which were originally criminal matters. 121 Nevertheless, as has been shown in this section, it is notably encouraging that, post-EMCA, most Kenyan courts have faithfully construed locus standi liberally, hence buoying public interest environmental litigation.…”

Chapter 10: Wildlife conservation and community property rights in Kenya

“…This is a fundamental shift from the centralised approach that informed wildlife management in Kenya for a long time under the Wildlife (Conservation and Management) Act (1976). 61 While protection of the environment and natural resources and specifically the protection of animals and wildlife is a function of the national government, 62 there are interfaces with county governments. The latter are expected to implement specific national government policies on natural resources and the environment.…”

“…65 Devolution radically departs from the previous situation where centralised wildlife authorities alienated wildlife resources from local communities. 66 Indeed, devolution has the potential to enlist community support for conservation 67 as it enhances community participation and promotes wildlife conservation particularly outside protected areas. 68 The engagement of communities is critical to framing incentives in conservation, to facilitate communities availing land for conservation and to provide a framework for involving them in dealing with poaching.…”