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2021-06-16T09:48:04Z
KAM Petition 32 Judicial Review Application, Kenya 2018.pdf
National Council for Law Reporting:

Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] eKLR


Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] eKLR

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC PETITION NO.32 OF 2017

(Formerly Milimani High Court Petition No. 375 of 2017)

KENYA ASSOCIATIONOF MANUFACTURERS...............PETITIONER

=VERSUS=

CABINETSECRETARY, MINISTRY OF

ENVIRONMENT AND NATURAL RESOURCES....IST RESPONDENT

ATTORNEY GENERAL..............................................2ND RESPONDENT

NATIONAL ENVIRONMENT

MANAGEMENT AUTHORITY..................................3RD RESPONDENT

MULTYTOUCH INTERNATIONAL.........................4TH RESPONDENT

Consolidated with

NAIROBI ELC JUDICIAL REVIEW APPLICATION NO. 30 OF 2017

(Formerly Milimani High Court Judicial Review Application No. 421 of 2017)

FREDRICK GICHUHI NJENGA.....................................1ST APPLICANT

STEPHEN MWANGI........................................................2ND APPLICANT

=VERSUS=

ATTORNEY GENERAL...............................................1ST RESPONDENT

CABINETSECRETARY, MINISTRY OF

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Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] eKLR

ENVIRONMENT AND NATURAL RESOURCES....2NDRESPONDENT

Further consolidated with

NAIROBI ELC PETITION NO. 35 OF 2017

OKIYA OMTATAH OKOITI...................................................PETITIONER

=VERSUS=

CABINETSECRETARY, MINISTRY OF

ENVIRONMENT AND NATURAL RESOURCES....1ST RESPONDENT

NATIONAL ENVIRONMENT

MANAGEMENT AUTHORITY...................................2ST RESPONDENT

ATTORNEY GENERAL...............................................3RD RESPONDENT

JUDGMENT

Background

1. What is before us is a protracted dispute the facts of which look straight forward on the surface but contain complicated legal
issues underneath. The genesis of the dispute was the decision of the Cabinet Secretary, Ministry of Environment and Natural
Resources (hereinafter referred to as “the Cabinet Secretary”), and the National Environment Management Authority(hereinafter
referred to as “NEMA”) to ban the use, manufacture and importation of certain types of plastic bags used for commercial and
household packaging. To appreciate the nature of the dispute, it is necessary to outline the parties to the dispute and the interests
they represent.

2. The petitioner in Petition No. 32 of 2017, Kenya Association of Manufacturers (KAM) has described itself as “the representative
organization for manufacturing value-add industries in Kenya”. The applicants in Misc. Civil Application No. 30 of 2017, Fredrick
Gichuhi Njenga and Stephen Mwangi who brought the application on their own behalf and on behalf of 353 others have described
themselves as “importers, exporters, wholesalers and retailers of plastic bags”. The petitioner in Petition No. 35 of 2017,is Mr.
Okiya Omtatah Okoiti. Mr. Okoiti has described himself as “a law abiding citizen of Kenya, a public spirited individual and a
human rights defender”.

3. NEMA which is a respondent in two (2) of the consolidated suits is the Principal Government Agency on environmental matters.
It exercises general supervision and co-ordination over all matters relating to the environment within the Republic of Kenya. The
Cabinet Secretary, a respondent in all the suits is responsible for the formulation and implementation of Government policies on
environmental management and administration. The Attorney General, also a respondent in all the suits has been joined in the suits
as the principal legal adviser to the Government with the responsibility of representing the national government in legal
proceedings of a civil nature pursuant to Article 156 of the Constitution. Multytouch International, a respondent in one of the suits
has described itself as a non-governmental organization registered under the Non-Governmental Organizations Act of 1990 and
engaged in conservation and management of the environment.

4. The central issue in the three consolidated suits revolves around the validity of a Gazette Notice dated 28/2/2017 that was issued
by the Cabinet Secretary and published twice in different issues of the Kenya Gazette on 14/3/2017 under Legal Notice No. 2334
and Legal Notice No. 2356. The Gazette Notice reads as follows:-

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Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] eKLR

In exercise of the powers conferred under Sections 3 and 86 of the Environmental Management and Co-ordination Act, it is
notified to the public that the Cabinet Secretary for Environment and Natural Resources has with effect from 6 months
from the date of this notice banned the use, manufacture and importation of all plastic bags used for commercial and
household packaging defined as follows:

(a) Carrier bag-

Bag constructed with handles and with or without gussets;

(b) bag constructed without handles, and with or without gussets

Dated the 28th February, 2017

JUDI WWAKHUNGU

Cabinet Secretary for Environment and Natural Resources.

5. The Gazette Notice outlawed the use, manufacture and importation of certain categories of plastic bags used for commercial and
domestic purposes. Aggrieved by the ban, the petitioners and the applicant in the three consolidated suits brought the suits seeking
various reliefs.

6. The first suit is Nairobi ELC Petition No. 32 of 2017; Kenya Association of Manufacturers v Cabinet Secretary, Ministry of
Environment and Natural Resources & 3 Others (formerly Milimani High Court Petition No. 375 of 2017)in which the
petitioner prays for the following orders:

(i) A declaration that Gazette Notices Nos. 2356 and 2334 of 2017 published in Kenya Gazette of 14th March, 2017 banning
the use, manufacture and importation of all plastic bags used for commercial and household packaging are unconstitutional,
null and void as they were issued;

a) without public participation contrary to Articles 10 and 69(1) of the Constitution, and Section 5 of the Statutory
Instruments Act, 2013 and;

b) without the requisite statutory authority and in contravention of Sections 5, 6, 8 (1), 11(1) and (2) of the Statutory
Instruments Act, No 23 of 2013.

(ii) A declaration that the respondents have violated the rights of the petitioner under Article 47 of the Constitution and
Sections 5 and 6 of the Fair Administrative Action Act, No. 4 of 2015.

(iii) An order quashing Gazette Notices No. 2356 and 2334 of 2017 banning the use, manufacture and importation of all
plastic bags used for commercial and household packaging.

(iv) An order prohibiting the implementation of Gazette Notices No 2356 and 2334 of 2017.

(v) Such other and/or further relief as this honourable court may deem fit and just to grant

(vi) The costs of and occasioned by this Petition be provided for.

7. The second suit is Nairobi ELC Judicial Review Application No. 30 of 2017; Fredrick Gichuhi Njenga & Another v
Attorney General &Another (formerly Milimani High Court Judicial Review Application No. 421 of 2017) in which the
applicants pray for the following orders:

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Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] eKLR

i. An order of Certiorari to bring into the High Court and to quash Legal Notice Number 2356 of 2017 issued by the 2nd

respondent banning the use, manufacture and importation of all plastic bags used for commercial and household packaging.

ii. An Order of prohibition to prohibit the 2nd respondent from issuing and implementing Legal Notice Number 2356 of
2017 banning the use, manufacture and importation of all plastic bags used for commercial and household packing and
subsequently issuing similar legal notices without legal justification.

8. The third suit is Nairobi ELC Petition No. 35 of 2017; Okiya Omtatah Okoiti v Cabinet Secretary, Ministry of
Environment and Natural Resources & 2 Others, in which the Petitioner has prayed for the following orders:

(i) A declaration that the 1st and 2nd respondents have violated the Constitution of Kenya.

(ii) A declaration that the impugned plastic bags ban affects the general public including consumers of plastics and workers
in the plastics industry, who ought to have been consulted before the ban was imposed.

(iii) A declaration that the plastic bags ban was not enacted in accordance with the Constitution and the applicable statutes,
rendering it invalid, null and void ab initio.

(iv) A declaration that parliament should be allowed the time to consider the National Waste Management Bill, 2017,
published by the 1st respondent and develop a legal framework for the use and management of wastes, including from plastic
bags.

(v) A declaration that Gazette Notice Nos.2334 and 2356, both dated 28th February 2017, are unconstitutional and, therefore
invalid, null and void.

(vi) A declaration that pursuant to Section 11(4) of the Statutory Instruments Act, Gazette Notice Nos. 2334 and 2356, both
dated 28th February 2017, are void and of no legal effect.

(vii) An order quashing Gazette Notice Nos. 2334 and 2356, both of 28th February 2017, both being unconstitutional and,
therefore, invalid, null and void.

(viii) An order that the costs of this suit be provided for.

(ix) Any other relief the court may deem just to grant.

9. Petition No. 32 of 2017 and Judicial Review Application No. 30 of 2017 were consolidated pursuant to an order made by the
High Court prior to the transfer of the two suits to the Environment & Land Court for hearing and determination. PetitionNo.35 of
2017 was consolidated with the two suits on 18/9/2017 pursuant to an order made by Eboso J. on the same date. Following the
consolidation of the three suits, Nairobi ELC Petition Number 32 of 2017 was chosen as the lead file. In this judgment, we shall
refer to Kenya Association of Manufacturers, Patrick Gichuhi Njenga and Stephen Mwangi, and Okiya Omtatah Okoiti as the 1st ,
2nd and 3rd petitioners respectively, and the Cabinet Secretary, the Attorney General, NEMA and Multytouch International as the 1st ,
2nd , 3rd and 4th respondents respectively where the context so permits.

The 1stPetitioner’s Case

10. The 1st petitioner contended that it brought its petition in a representative capacity on behalf of its members who carry out the
business of manufacture, production, design and sale of plastic ware and plastic packaging material for domestic, commercial and
industrial use. The 1st petitioner’s case is that plastic is an extremely cost-effective, versatile and durable synthetic product made
from oil by-product, and is used in diverse sectors, including packaging, construction, transportation, healthcare and electronics. It
contended that the ban imposed on plastic bags by the 1st and 3rd respondents through the impugned Gazette Notice has adversely
affected its members. It contended further that due to weak enforcement mechanisms in Kenya, management of the use and
disposal of plastic in the country is sub-optimal. The 1st petitioner contended that, to address the challenges related to the disposal

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of plastic, the 1stpetitioner and the Government of Kenya, in collaboration with other stakeholders, have been collaborating in an
effort to develop an appropriate policy framework on the management of plastic waste. These collaborative efforts culminated in
the signing of a joint implementation plan for sustainable management of plastic waste in the country on 29/6/2007 committing the
parties thereto to specific key deliverables. The 1stpetitioner contended that whereas it fully fulfilled its obligations under the said
joint implementation plan, the 1st and 3rd respondents failed to discharge their obligations under the plan which default resulted in
a regulatory and policy vacuum. The 1stpetitioner contended that as a result of the said default, the envisaged national strategies
and policies necessary for sustainable plastic waste management have not been effective.

11. The 1st petitioner contended further that in 2016, it recommended the establishment of a public-private partnership venture in
plastic waste management through which the Government would impose a levy to be utilized in the sustainable management of
plastic waste, a proposal which the 1st respondent seemed enthusiastic about. The 1stpetitioner averred that, unknown to it, the 1st

respondent had already commenced the process of issuing the impugned Gazette Notice dated 28/2/2017 which was published on
14/3/2017, effectively banning the use, manufacture and importation of plastic bags.

12. The 1stpetitioner averred further that, subsequent to the issuance of the said Gazette Notice, it actively engaged both the 1st and
3rd respondents in an effort to come up with an amicable solution to the plastic waste problem. It contended that it raised the
following concerns with the 1st and 3rd respondents regarding the plastic bags ban: (i) that the ban would cause economic and job
losses; (ii) that the ban would compromise the existing collaborative initiatives towards plastic waste management; (iii) that the
sudden unexpected and drastic policy change in addressing plastic waste would cause disarray in the manufacturing sector and was
likely to affect investor confidence; (iv) that the wording of the legal notice was ambiguous and amounted to a total ban of all plastic
carrier bags and flat bags; and (v) that the ban ignored the existing collaborative initiatives in plastic waste management. The
1stpetitioner contended that its concerns were ignored by the 1st respondent.

13. The 1stpetitioner averred further that on 29/3/2017, Hon. John Olago Aluoch M.P presented a public petition to the National
Assembly seeking among other measures: (i) a recommendation that the ban be suspended; (ii) are commendation that the
Environmental Management and Co-ordination Act (hereinafter referred to as “EMCA”) be amended to address the issue of plastic
waste management; and (iii) a recommendation that a plastic waste management levy be introduced. It averred that the relevant
Committee of the National Assembly considered the petition and concluded, among others, that there was need to suspend the
impugned Gazette Notice. The 1st petitioner averred that, the National Assembly’s Implementation committee could not enforce the
said recommendations because the National Assembly’s calendar had lapsed. It contended that subsequent engagements with the 1st

and 3rd respondents did not resolve the dispute, hence the filing of its suit.

14. The 1stpetitioner raised four (4) grounds upon which it sought the annulment of the impugned Gazette Notice. The first ground
was lack of public participation. The 1stpetitioner contended that the 1st respondent failed to inform it and the general public that she
intended to impose a complete ban on the manufacture and importation of plastic carrier and flat bags. The 1stpetitioner’s
contention was that failure to engage it and/or members of the public prior to the imposition of the ban violated Article 10 and
Article 69(1) of the Constitution and the provisions of the Statutory Instruments Act, 2013 in the sense that the Gazette Notice was
not preceded by public participation and a regulatory impact statement.

15. The second ground raised by the 1stpetitioner was that the impugned Gazette Notice was fraught with illegalities and violated the
1stpetitioner’s right to equal protection and benefit of the law under Article 27 of the Constitution. In this regard, the 1stpetitioner
contended that neither Section 3 nor Section 86 of EMCA empowered the 1st respondent to ban the manufacture and importation of
plastic carrier and flat bags. The 1st petitioner also contended that there was no compliance with Section 6 of the Statutory
Instruments Act, 2013 prior to the issuance of the Gazette Notice.

16. The third ground raised by the 1stpetitioner was that the impugned Gazette Notice did not satisfy the requirements of Article 24
of the Constitution in that there was no clear and specific legislation authorizing the imposition of the ban as required under Article
24(2) of the Constitution.

17. Lastly, the 1stpetitioner challenged the said Gazette Notice on the ground that it violated Article 47 of the Constitution in that the
1stpetitioner was denied the right to a fair administrative action before the said Gazette Notice was issued.

The 2nd Petitioners’ Case

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Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] eKLR

18. The 2nd petitioners contended that they are importers, wholesalers and retailers of the banned plastic bags. They challenged the
impugned Gazette Notice on several grounds. First, they argued that the said Gazette Notice did not comply with provisions of the
Statutory Instruments Act, 2013. Second, they contended that the six months’ notice that was given in the said Gazette Notice was
too short because they needed ample time to clear all their stock and fulfil their contractual obligations. Third, they averred that
there was no adequate stakeholder consultation and/or any public participation as provided under Section 3(5) of EMCA. Fourth,
they contended that they, together with their employees, stood to suffer economic loss if the ban was to stand. Fifth, they contended
that the 1st respondent acted ultra vires by issuing the said Gazette Notice under the provisions of Section 3 of EMCA. Sixth, they
contended, that the said Gazette Notice was unconstitutional because it was not in tandem with the principles of good governance
contained in Article 10 of the Constitution of Kenya, among them; accountability, public participation and transparency. Seventh,
they argued that the 1st respondent failed to apply the provisions of Articles 69 (1) (d), 192(2) and Article 153(4)(b) of the
Constitution.

19. Lastly, they contended that the said Gazette Notice lacked clarity and intelligibility to the anticipated users hence it violated the
provisions of the Statutory Instruments Act. The 2nd petitioners urged the court to grant the prayers sought in their suit.

The 3rd Petitioner’s Case

20. The 3rd petitioner stated that he is the executive director of Kenyans for Justice and Development Trust. He contended that the
trust was founded on republican principles and was set up for the purpose of promoting democratic governance, sustainable
economic development and prosperity.

21. The first ground upon which the 3rd petitioner challenged the Gazette Notice was that the ban imposed through the Gazette
Notice was ultra vires Sections 3 and 86 of EMCA because the said provisions of EMCA do not confer upon the 1st respondent the
power to ban the use, manufacture and importation of plastic bags used for commercial and domestic packaging. He contended that
Sections 3 and 86 of EMCA empowered the 1st and 3rd respondents to manage waste and not to prohibit the use of any materials.
The 3rd petitioner contended further that under EMCA, the 1st and 3rd respondents were only empowered to prohibit the dumping of
pollutants into the environment; they were not empowered to ban the use of any materials. He contended further that the banning of
any product could only be done pursuant to Articles 24 or 70 of the Constitution. He argued that even then, the precautionary
principle contained in Article 70 (2) of the Constitution could not be invoked through executive fiat. The 3rd petitioner contended
that the principle can only be invoked through the institution of proper court proceedings and the issuance of a court order. He
contended that Sections 3 and 86 of EMCA only allows the 1st and 3rd respondents to regulate the disposal of plastic carrier bags but
not to prohibit their use.

22. The second ground upon which the 3rdpetitioner challenged the Gazette Notice was that it violated the provisions of the Fair
Administrative Action Act, 2015. He contended that the Gazette Notice was enacted contrary to the mandatory requirements of
Section 5(1) of the said Act which required the 1st and 3rd respondents to issue a public notice of the proposed administrative action
inviting public views in that regard and to consider all views and relevant materials submitted in relation to the matter before taking
the administrative action. He contended that the ban was not preceded by stakeholders’ consultation.

23. The third ground raised by the 3rdpetitioner was that the impugned Gazette Notice violated the mandatory provisions of the
Statutory Instruments Act, 2013. He contended that the said Gazette Notice was not submitted to Parliament for scrutiny and
approval. He argued that Section 11 of the Statutory Instruments Act obligates every Cabinet Secretary responsible for a regulation-
making authority, to ensure that a copy of the statutory instrument is transmitted to the responsible clerk for tabling before
Parliament within seven (7) sitting days after the publication of a statutory instrument. The 3rdpetitioneralso contended that Sections
4,5,6,7,8,9,10 and 11 of the Statutory Instruments Act were violated to the extent that the plastic ban was not subjected to
appropriate consultation or public participation involving all stakeholders before it was effected, and that a regulatory impact
statement about the instrument was not made yet the Gazette Notice imposed significant costs on the public.

24. The fourth ground raised by the 3rdpetitioner was that the impugned Gazette Notice violated various Articles of the Constitution
of Kenya. In this regard, he contended that the said Gazette Notice was enacted in violation of Article 24 of the Constitution to the
extent that: (i) it is not a legislation within the meaning of Article 260 of the Constitution because Parliament has not donated to the
Cabinet Secretary powers to impose a ban on plastic bags and; (ii) the Gazette Notice does not, among other things, balance the
enjoyment of rights between the parties. The 3rdpetitioner contended also that the impugned Gazette Notice violated Article 27 of
the Constitution in the sense that the plastic ban was discriminatory to the extent that it did not cover all pollutant plastic such as

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plastic bottles and plastic hair. The 3rd petitioner contended also that the said Gazette Notice violated Article 47(1) of the
Constitution in the sense that it was not expeditious, efficient, lawful, reasonable and procedurally fair. In addition, the 3rdpetitioner
contended that the 1st and 3rd respondents violated the following Articles of the Constitution in the described manner: (i) Articles 1,
2(1) and (2) and 3(1) by acting contrary to the Constitution; (ii) Article 73(1)(b), 129(1) and (2) and 153(4) by acting contrary to the
Constitution; (iii) Article 10(2)(a) by proceeding to effect the ban without following the law; (iv) Article 24 by arbitrarily limiting
the enjoyment by consumers of plastic bags, workers in the plastic industry, and the general public of rights and fundamental
freedoms enshrined in Articles 24, 27, 40, 43, 46 and 47 of the Constitution; (v) Article 70 by imposing a ban through executive fiat
instead of moving this honourable court for an appropriate court order ; (vi) Article 69 by imposing a ban on plastic bags instead of
acting to eliminate the throw away culture; (vii) Article 232(1)(d), (e) and (f) of the Constitution by denying Kenyans the chance to
participate in the enactment of the impugned Gazette Notice; and (viii) Article 259 (1) and (3) of the Constitution by setting out to
defeat the purposes, values and principles of the Constitution.

25. The fifth ground raised by the 3rdpetitioner was that the Gazette Notice violated the doctrine of legitimate expectation in that the
petitioner had a legitimate expectation that under Sections 3 and 86 of EMCA, the 1st and 3rd respondents would, among others,
respect, uphold and defend the Constitution, enact a programme or framework for the management and handling of plastic bags and
other wastes, direct county governments and manufacturers to establish plastic waste collection centres, use their powers to punish
those who litter the environment, adhere to the law governing subsidiary legislation, and allow parliament time to consider the
National Waste Management Bill of 2017.

26. The sixth ground raised by the 3rdpetitioner was that the impugned Gazette Notice is void for being vague. He contended that
when the Notice is read together with supporting literature from the 3rd respondent, contradictions and inconsistencies emerge which
render it vague.

The 1st, 2nd and 3rdRespondents’ Case

27. The 1st, 2nd and 3rd respondents opposed the three suits. Their case was that the Constitution of Kenya in its preamble recognizes
the need to respect and sustain the environment for the benefit of future generations. They averred that the principle of sustainable
development calls for mediation between interests of the current generations and those of future generations, and also calls for
mediation between the competing interests of the current generations.

28. The 1st, 2nd and 3rd respondents contended further that Article 42 of the Constitution secures the right to a clean and healthy
environment and places upon the State the obligation to ensure that the right is protected through legislative and other means. The
respondents averred that Article 69 of the Constitution creates positive obligations on part of the State to ensure sustainable
exploitation, utilisation, management and conservation of the environment and natural resources and obligates the State to eliminate
processes and activities that are likely to endanger the environment. They averred further that Article 69(2) of the Constitution
creates a positive obligation on the petitioners to co-operate with state organs and other persons to protect and conserve the
environment and ensure ecologically sustainable development and use of natural resources. The 1st, 2nd and 3rdrespondents
contended further that Article 70 of the Constitution recognises the precautionary principle and that this court would be acting in
consonance with the provisions of Article 70 of the Constitution if it upheld the ban.

29. They argued further that Section 3 of EMCA provides for the right to a clean and healthy environment and contains principles
of environmental management and sustainable development. They averred that Section 86 of EMCA on the other hand empowers
the 1st respondent to issue guidelines and prescribe measures for the management of hazardous materials and processes. They
contended that the 1st respondent had both the constitutional and statutory basis to prohibit the use, manufacture and importation of
the affected plastic bags under Sections 3 and 86 of EMCA.

30. The 1st, 2nd and 3rdrespondents averred further that plastic carrier bags and flat bags are easily blown around and cause harm
when ingested by livestock and wildlife. They argued that due to their non-biodegradable nature, plastic bags are known to
endanger both flora and fauna, block waterways leading to flooding, emit harmful dioxin and furans when burnt, and are persistent
pollutants of the environment. They contended that due to the aforesaid harm, it was scientifically determined under Section 86
of EMCA that plastic is a hazardous material and plastic bags were identified as the most harmful hence the need to isolate and
control their use. The 1st, 2nd and 3rdrespondents averred further that plastic bags are easily replaceable with environmentally
friendly alternatives.

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31. The 1st, 2nd and 3rdrespondentsaverred further that prior to the imposition of the ban; previous attempts to control the negative
impact of plastic to the environment were unsuccessful. They averred that the Gazette Notice applies specifically to plastic carrier
bags used for commercial, domestic and industrial packaging and does not impose a blanket ban on all plastic as alleged by the
petitioners. They averred further that the ban was a well thought out process implemented after careful study and public
consultation with stakeholders.

32. The 1st, 2nd and 3rdrespondents contended that the six months’ notice that was given before the ban became effective gave the
stakeholders’ sufficient time to adjust, given that there had been prior engagement with them going back to the year 2005. The
respondents averred that the Ministry of Environment and Natural resources through the 3rd respondent engaged stakeholders on the
issue of plastic in twenty seven (27) meetings between 2006 and 2017. They averred that between May 2006 and February 2012,
engagement with stakeholders revolved around the subject of use, standards, thickness, plastic management and levies and from
2014, engagement with the stakeholders shifted to stoppage of the use of certain categories of plastic. They averred that in October,
2015, the 3rd respondent recommended to the 1st respondent to declare a total ban on the use of certain categories of plastic carrier
bags and flat bags and the1st respondent accepted the recommendation.

33. The 1st, 2nd and 3rdrespondentscontended that the impugned Gazette Notice complied with all relevant provisions of the Statutory
Instruments Act, 2013. They averred that the Gazette Notice was tabled in the National Assembly before the Parliamentary
Committee on Environment during a meeting attended by representatives of the 1st petitioner. They argued that Parliament had the
opportunity to scrutinise the said Gazette Notice after it was petitioned to do so. They contended that Parliament did not revoke the
Gazette Notice after considering it.

34. The 1st, 2nd and 3rd respondents averred that the constitutional mandate to formulate policy and administrative measures and to
enforce them in order to protect the environment is vested upon the executive arm of Government. They contended that the
National Waste Management Bill of 2017 has not been published and that it awaits public participation.

35. Lastly, the1st , 2nd and 3rdrespondents contended that there will be minimal job losses as a result of the ban on plastic bags
because most manufacturers of plastic bags also manufacture multiple plastic items and that consumers had enthusiastically
switched to and embraced more environmentally friendly packaging. They contended further that the benefits accruing to the
environment outweigh any losses that maybe suffered by the economy and that such losses cannot be greater than the public interest
to be served by achieving a clean and healthy environment.

The 4thRespondent’s Case

36. The 4th respondent applied to be joined as an interested party in Nairobi ELC Petition No. 32 of 2017 and its request was granted
prior to the transfer of that suit to this court. The 4threspondentsupported the ban on plastic bags. Its case was that under Article 42
of the Constitution, every citizen is entitled to a clean and healthy environment, and the right to a clean and healthy environment
includes the right to have the environment protected for the benefit of present and future generations through legislative and other
means. It contended that under Sections 3 and 86 of EMCA, the 1st respondent is empowered to issue guidelines and prescribe
measures to manage hazardous materials and processes. The 4th respondent contended further that Articles 69 and 70 of the
Constitution enjoin State organs to initiate positive measures geared towards eliminating processes and activities that are likely to
endanger the environment.

37. The 4th respondent concurred with the other respondents that key stakeholders and the public were engaged by the 1st and 3rd

respondents on the subject of plastic waste from 2006 and that from 2014 the engagement focused on stoppage of manufacture and
use of plastic.

38. Lastly, the 4th respondent contended that the ban on plastics is part of the Government’s commitment to address pollution in
tandem with the United Nations Environment Programme’s clean sea initiative. The 4th respondent contended that plastic bags are
to blame for the proliferation of used plastic in waterways, grazing fields, dwelling homes, urban centres and virtually all empty
spaces. It urged the court to dismiss the three suits.

Submissions by the Advocates for the Parties

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39. The parties filed written submissions in support of their respective cases. They were thereafter given opportunity to orally
highlight key aspects of their cases. Mr. Amoko and Mr. Dar appeared for the 1stpetitioner; Mr Ogessa appeared for the 2nd

petitioners and Mr. Okiya Omtatah Okoiti, the 3rd petitioner, appeared in person. The Deputy Chief State Counsel, Mr. Eredi and
Mr. Allan Kamau appeared for the 1st and 2nd respondents; Prof. Mumma, Mr. Wabwoto and Mr. Agwara appeared for the3rd

respondent, while Mr. Anyoka appeared for the 4th respondent

Submissions by the 1stPetitioner

40. Mr. Amoko addressed the court on behalf of the advocates who appeared for the 1st petitioner. Mr. Amoko submitted that the
1stpetitioner was never given a reasonable and/or meaningful opportunity to have a say on the impugned Gazette Notice contrary to
the constitutional framework on public participation contained in Articles 10 and 69 (d) of the Constitution. He argued that public
participation is a key tenet of the national values and principles of governance in Kenya. He argued further that facilitation of public
involvement in the legislative process entails taking steps to ensure that the public participates in the legislative process. He argued
that no consultations were held before the drastic measure of banning all plastic carrier bags was taken. He relied on, among others,
the case of, In the Matter of Mui Coal Basin Local Community (2015) eKLR in which the High Court emphasized the importance of
public participation as a constitutional governance principle.

41. Mr. Amoko submitted further that Section 5 of the Statutory Instruments Act requires public consultation prior to the
promulgation of a statutory instrument. He contended that the ban contained in the impugned Gazette Notice had a direct impact on
the business of the plastic industry across the board and materially affected the rights and interests of the petitioners yet the 1st and
3rd respondents did not comply with the legal framework in Section 5 of the Statutory Instruments Act. Counsel urged the court to
find that the impugned Gazette Notice is unlawful, null and void on that ground. Counsel relied on the decisions of Odunga J. in
the cases of Moi University v Council of Legal Education & Others (2016) eKLR and Judicial Service Commission v Mbalu
Mutava & Another (2015) eKLR in support of his submissions.

42. He submitted further that the ban imposed through the impugned Gazette Notice offends the principle of proportionality as
contained in Article 24 of the Constitution. Counsel contended that the ban limits the 1stpetitioner’s right to engage in trade and
falls short of the requirements of Article 24 of the Constitution. The Court of Appeal decision in the case of Seventh Day Adventist
Church (East Africa) v Minister for Education & 3 others (2017) eKLR was cited in support of that proposition. Counsel similarly
urged the court to annul the said Gazette Notice on this ground.

43. Mr. Amoko submitted further that the ban imposed through the impugned Gazette Notice was effected in contravention of the
provisions of Article 47 of the Constitution and Section 5 of the Fair Administrative Action Act, 2015. Counsel contended that the
1st and 3rd respondents had made the 1stpetitioner to believe that they were working collaboratively on a plastic waste management
scheme under a public-private partnership programme only for them to make an about-turn and impose the ban. He submitted that
the 1st and 3rd respondents were constitutionally and statutorily obliged to hear the 1stpetitioner before imposing the ban. While
relying on the decisions in the cases of Geothermal Development Limited v Attorney General & 3 Others (2013) eKLR; Rv
National Police Service Commission Ex-parte Daniel Chacha Chacha (2016) eKLR; and Judicial Service Commission v Mbalu
Mutava and Another (supra) counsel urged the court to annul the impugned Gazette Notice on the ground that the ban was effected
without affording the 1st petitioner an opportunity to be heard.

44. Mr. Amoko submitted further that whereas the impugned Gazette Notice was issued under Sections 3 and 86 of EMCA, nothing
in the cited provisions of the law authorises the 1st respondent to impose a ban on any product. Counsel contended that Section
86(1) and (2) only authorise the 1st respondent to issue guidelines and prescribe measures for the management of substances and
processes that have been identified as dangerous to human health. He argued that plastic bags do not qualify to be characterised as
substances, contending that in the case of plastic bags, the substance is the plastic waste, not the plastic bag itself. He contended
further that even if the plastic bags were to qualify to be characterised as substances, what the 1st respondent was required to do
was to manage them and not to eliminate them through a ban. Counsel added that the impugned Gazette Notice ought to be struck
out for want of compliance with a condition precedent to the ban in that there was no recommendation from the 3rd respondent
identifying plastic bags as a danger to human health and the environment and proposing their ban.

45. Mr. Amoko argued further that the Gazette Notice imposed significant costs on the stakeholders in the plastic Sector and ought
to have been preceded by a regulatory impact statement as required under Section 6 of the Statutory Instruments Act. He argued
further that the impugned Gazette Notice is null and void because it was not laid before parliament as required under Section 11 of

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the Statutory Instruments Act. Counsel urged the court to be guided by the decision in the case of Kenya Country Bus Owners
Association ( Through Paul G. Muthumbi – Chairman, Samuel Njuguna – Secretary, Joseph Kimuri – Treasurer) and 8 Others v
Cabinet Secretary for Transport & Infrastructure & 5 others [2014] eKLR. He urged the court to grant the orders set out in the1st

petitioner’s Amended Petition.

Submissions by the 2ndPetitioners

46. Mr. Ogessa, learned counsel for the 2nd petitioners filed written submissions dated 31/7/2017. He contended that Section 3 of
EMCA confers power upon the court to issue orders to prevent, stop or discontinue any act deleterious to the environment. He
submitted that the section does not confer upon the 1st respondent any power to impose a ban on a product. He argued that the
impugned Gazette Notice is ultra vires the Act.

47. Counsel argued further that Section 86 of EMCA only grants the1st respondent power to issue guidelines on how particular
waste ought to be disposed of and that it does not grant the 1st respondent power to ban the use and manufacture of plastic bags.

48. Finally, Counsel submitted that Article 69(1) of the Constitution requires public participation. He argued that only a select few
stakeholders were consulted in relation to the ban. He contended that the 1st respondent violated Section 5 of the Statutory
Instruments Act 2013.

Submissions by the 3rdPetitioner

49. The 3rdpetitionerwho acted in person submitted that under Article 2 (4) of the Constitution, any law which is inconsistent with
the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. He
argued that the impugned Gazette Notice contravenes Sections 3 and 86 of EMCA; Sections 3, 4, 5, 6, 7, 8, 10 and 11 of the
Statutory Instruments Act, 2013; Sections 3, 4, 5 and 6 of the Fair Administrative Action Act,2015; and Articles 1 (1), 2(1),2(2),
3(1), 10, 24, 40, 47, 69, 70, 73(1), 153(4) (a), 232 (1) (a), (b), (d) and (e ); 259(1) and (3) of the Constitution. The 3rdpetitioner
urged the court to be guided by the decision in the case of Republic v Kenya National Examination Council, Misc. Civil Application
No. 328 of 2015 and annul the impugned Gazette Notice. The 3rdpetitioner added that Article 47 is breached when a respondent’s
actions are unreasonable.

50. The 3rdpetitioner submitted further that under Section 11(4) of the Statutory Instruments Act, 2013 the impugned Gazette Notice
is void because it was not laid before Parliament. He contended that the Gazette Notice automatically became void upon expiry of
seven sitting days subsequent to its publication.

51. The 3rd petitioner submitted that any person acting under the precautionary principle provided in Article 70 of the Constitution
has only two options, either to move the court for an order or to legislate under Article 24 of the Constitution. He submitted that
the Gazette Notice amounted to an executive fiat which was an extra- constitutional measure.

52. The 3rdpetitioner also submitted that the ban imposed through the Gazette Notice is discriminatory in nature since it allows large
scale manufacturers to use polythene paper for primary packaging but denies common traders the use of polythene paper for primary
packaging. He argued that under Article 27 of the Constitution, the law ought to apply equally to all.

53. The 3rdPetitioner submitted further that the Gazette Notice arbitrarily deprived investors in the plastic industry of their right to
property by shutting down their businesses. He contended that this contravened Article 40 of the Constitution. He added that since
Article 260 of the Constitution defines property to include choses in action, the shutting down of businesses dealing in plastic
violated the affected workers’ right to wages.

54. The 3rdpetitioner also submitted that the ban imposed through the impugned Gazette Notice violated Articles 43 and 46 of the
Constitution in the sense that by banning primary packaging materials, it exposed Kenyans to health risks, and unreasonably
increased the cost of living for ordinary Kenyans.

55. The 3rd petitioner submitted further that the impugned Gazette Notice infringed on the enjoyment of rights enshrined in Articles
40, 43 and 46 of the Constitution in the sense that it limited those rights without complying with the mandatory procedure spelt out

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in Article 24 of the Constitution.

56. The 3rdpetitioner also submitted that Section 3 of EMCA echoes Articles 42, 69 and 70 of the Constitution while Sections 86 and
87 of EMCA empower the 1st respondent to issue guidelines and to prescribe measures for the management of plastic litter. He
contended that the powers donated to the 1strespondent under Section 86 of EMCA do not include banning of plastic bags. He
added that the 1st and 3rd respondents ignored the requirement to consider less restrictive means to achieve the intended objective.

57. The 3rdpetitioner submitted further that the impugned Gazette Notice pre-empted, the National Waste Management Bill and the
Report by the National Assembly’s Departmental Committee on Environment and Natural Resources which were pending before
Parliament and urged the court to recommend that Parliament provides a mechanism for managing the challenges of plastic litter.

58. On the issue of public participation, the 3rd petitioner submitted that public participation is a requirement widely recognized as a
critical aspect of public policy and account ability in environmental processes. He contended that through effective public
participation, the processes and outcomes of planning, policy and decision making are expected to be more efficient, equitable and
sustainable. He submitted that Articles 10(2) (a), 69(1) (d) and 232 (1) (d) of the Constitution require the State to encourage public
participation in the management, protection and conservation of the environment. He submitted that Section 3(5) (a) of EMCA
enjoins this court to be guided by the principle of public participation in the development of policies for the management of the
environment. He contended that there was consultation for several years on the issue of managing plastic litter but not on the issue
of banning plastic bags. He argued that under both the Statutory Instruments Act and the Fair Administrative Action Act, the 1st and
3rd respondents were required but failed to consult the affected public before banning plastic bags. He contended that their decision
not to consult the public was unlawful, illegal and fatal to the impugned Gazette Notice.

59. The 3rdpetitioner submitted further that he had a legitimate expectation that the 1st and 3rd respondents would execute their
mandate within the confines of the law and in particular within the provisions of Sections 3 and 86 of EMCA.

60. In conclusion, the 3rdpetitioner urged the court to declare the impugned Gazette Notice unconstitutional, invalid, null and void
on grounds of technical, procedural defects and violation of the petitioners’ rights. He also prayed for the costs of the suit.

Submissions by the 1st and 2nd respondents

61. The Deputy Chief State Counsel, Mr. Eredi submitted that at the heart of the national values and principles of governance in the
Constitution, is the principle of sustainable development. This isa development model that meets the needs of the present generation
without compromising the ability of future generations to meet their own needs. He added that sustainable development calls for a
mediation between competing intergenerational and intergenerational interests. He submitted further that environmental rights are
fundamental human rights and every person is entitled to a clean and healthy environment. He added that the ban on plastic bags
has ensured that there is conservation of the environment and the right to a clean environment is safeguarded. He submitted further
that the petitioners and the applicants are constitutionally obligated to co-operate with the State in ensuring that the environment is
protected and conserved.

62. Counsel submitted that both the Constitution and EMCA recognise the precautionary principle which serves to ensure that any
substance or activity posing a threat to the environment is prevented from adversely affecting the environment even if there is no
conclusive scientific proof linking the substance or activity to environmental damage. He invited the court to uphold the impugned
Gazette Notice as a way of enforcing the right to a clean and healthy environment. He added that the Gazette Notice was
constitutional and lawful.

63. He submitted that Section 3 of EMCA spells out the principles to be applied in the management of the environment and Section
86 of the Act confers upon the 1st respondent powers to identify materials and processes that are dangerous to human health and the
environment; to issue guidelines and prescribe measures for the management of the materials and processes so identified. He
contended that the 1st respondent acted within the confines of the law in issuing the Gazette Notice in question.

64. On the issue of the alleged non-compliance with the Statutory Instruments Act, counsel submitted that the impugned Gazette
Notice was tabled in Parliament and considered by the Parliamentary Committee on Environment and Natural Resources during a
session attended by the 1st respondent, the Director General of the3rd respondent as well as representatives of the 1stpetitioner. He

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argued therefore that Parliament had the opportunity to scrutinise the Gazette Notice.

65. Counsel also submitted that the impugned Gazette Notice was complementary to the substantive policy regulation under Section
86 of EMCA. He submitted further that under Section 9 (g) of the Statutory Instruments Act, the Gazette Notice was exempted from
the requirement of regulatory impact statement. He added that the affidavit of Mr. William K. Kiprono indicated that various
stakeholders were consulted prior to the issuance of the Gazette Notice. Counsel submitted further that the impugned Gazette
Notice was saved by dint of Sections 32 and 33 of the Interpretation and General Provisions Act.

66. On the issue of the National Waste Management Bill, 2017, counsel submitted that the bill had not been published and that the
contention that the Gazette Notice was intended to pre-empt the Bill had no basis.

67. Counsel submitted further that the Government had several engagements with the plastic sector from 2005 when the
Government first attempted to ban the use of plastic in the country and a total of twenty seven meetings were held with the
stakeholders. He added that the ban on plastic bags was a policy decision aimed at achieving a clean and healthy environment and
did not come as a surprise because the plastic sector had been duly consulted. He contended that public participation was achieved
because the plastic sector was engaged through the twenty seven meetings. He relied on the cases of Diani Business Welfare
Association &Others v County Government of Kwale[2015]eKLR, and Malindi Law Society v Attorney General &
4Others[2016]eKLR.

68. Counsel contended further that consumers of plastic bags had enthusiastically switched to and embraced more environmentally
friendly packaging alternatives and urged the court not to reverse the gains achieved so far.

69. Counsel contended that annulling the impugned Gazette Notice would hurt the public interest. He relied on the case ofMichael
Osundwa Sakwa v Chief Justice & President of the Supreme Court of Kenya & Another [2016]eKLR in urging the court to place
more consideration on public interest.

Submissions by the 3rdRespondent

70. Professor Albert Mumma advocate addressed the court on behalf of the legal team that appeared for the 3rd respondent. He
submitted that between May 2006 and February 2012, the3rd respondent held not less than seventeen stakeholder consultations to
discuss how best to control the menace presented by plastic bags. The consultations centered on standards to be adopted, the
thickness of plastic, management strategies and possible self-regulatory approaches by industry players. He contended that these
engagements came to naught. He submitted that in August 2012, the 3rdrespondent adopted a different approach focusing on
eliminating the root cause of the plastic menace. He submitted that the 3rd respondent held ten meetings and stakeholder
consultations with industry players, but the plastic production sector was uncooperative and sought to change the theme of the
meetings to the pre-2014 approach.

71. He submitted that following the said stakeholder consultations and meetings, and in light of the persistent public outcry against
the plastic menace, in October 2015, the3rd respondent recommended to the 1st respondent to ban the use of certain categories of
plastic. Placing emphasis on the criteria for public participation set out in In the Matter of the Mui Coal Basin Local Community
(supra),he submitted that the 1st respondent met the requirements and threshold for public participation prior to gazetting the ban.

72. Counsel submitted further that the purpose of the requirement for parliamentary scrutiny of statutory instruments is to give
Parliament an opportunity to oversee the executive’s power to make subsidiary legislation. He submitted that the oversight role is
intended to ensure that subsidiary legislation does not infringe on the rights of the individual, exceed the law making powers
delegated to the executive by Parliament, interfere with the jurisdiction of the courts or introduce tax.

73. He contended that although there was an oversight on the part of the 1st respondent with regard to placing the impugned Gazette
Notice before Parliament, the essence and spirit of the requirement for parliamentary scrutiny was met because parliament was
seized of the impugned Gazette Notice on 29/3/2017 within the time frame of seven sitting days, and the Gazette Notice was duly
transmitted to the relevant Committee of Parliament for scrutiny. He invited the court to be guided by the decision in the case of
Richard Dickson Ogendo & 2 Others v Attorney General & 5 Others[2014]eKLR in which Majanja J. declined to invalidate the
alcoblow breathalyzer rules. Counsel urged the court to uphold the Gazette Notice on the basis of the Constitutional imperative

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underpinning the right to a clean and healthy environment.

74. He submitted further that, if the court were to find that Parliament was not properly seized of the said Gazette Notice pursuant to
the Petition by Hon. Olago Aluoch M.P, or that the oversight on the part of the 1st respondent cannot be excused, the court should
give the 1strespondent time to rectify the omission by tabling the Gazette Notice formally before Parliament within a time frame to
be determined by the court.

75. Counsel submitted further that statutory instruments are made within the parameters set out in Section 24 of the Statutory
Instruments Act, 2013 and where a statutory instrument is made in exercise of a particular power; it is also deemed to have been
made in exercise of all other enabling powers. He submitted further that Article 69 (1) (g) of the Constitution enjoins the State to
eliminate processes and activities that are likely to endanger the environment. He submitted further that Section 7 of the Sixth
Schedule of the Constitution provides that all laws in force prior to the effective date of the Constitution are to be construed with
alterations, adaptations, qualifications and exceptions necessary to bring them into conformity with the Constitution. He contended
that the Gazette Notice was not in any way inconsistent with the provisions of EMCA. He argued further that although the Gazette
Notice was stated to have been made under Sections 3 and 86 of EMCA, it is to be deemed to have been made in exercise of all
enabling powers, including the powers granted to the 1st respondent by Section 147 of EMCA. Counsel submitted further that
Article 69 of the Constitution which enjoins the State to eliminate processes and activities that are likely to endanger the
environment when read together with Section 7 of the Sixth Schedule, require that Section 86(2) of EMCA be construed as
empowering the 1st respondent to prescribe measures to eliminate materials and processes that are dangerous to human health and
the environment. He contended that the ban imposed through the Gazette Notice is one such measure.

76. Counsel submitted that the decision to eliminate plastic bags is justified in the public interest. He argued that plastic waste poses
danger to the environment, human beings and animals. He contended that even where there is uncertainty as to the existence or
extent of risk to human health and the environment, public institutions may take protective measures with due regard to the public
interest without having to wait for the risks to became fully apparent. Counsel also submitted that where the precautionary principle
is concerned, the burden of proof rests with the petitioners whose individual interests are at stake, to adduce credible evidence that
its activities are not detrimental to the environment. Counsel submitted that under Article 40 (3) (b) of the Constitution, the State
may lawfully deprive an individual of constitutionally guaranteed rights in order to safeguard the public interest.

77. Counsel submitted further that the 1st and 3rd respondents were within their mandate to ban plastic bags in light of the urgent
need to give effect to the precautionary principle, taking into account considerations such as the toxicity, persistence and bio-
accumulative properties of plastics, which once disposed into the environment, have long term effects lasting hundreds of years. He
contended that the ban on plastic bags is both preventive and precautionary in character and substance, and that to achieve their
mandate, the 1st and 3rd respondents rightfully applied the precautionary principle with due regard to its fundamental elements. He
urged the court to dismiss the three suits.

Submissions by the 4thRespondent

78. Counsel for the 4th respondent, Mr. Anyoka, submitted that the Constitution of Kenya recognises the environment as the
foundation for socio-economic advancement and that the right to a clean and healthy environment is a fundamental right secured
and protected by Article 42 of the Constitution. He submitted that the right to a clean and healthy environment includes the right to
have the environment protected for the benefit of present and future generations through legislative and other measures. He argued
that, under Article 69 of the Constitution, the State is obligated to ensure sustainable exploitation, utilization, management and
conservation of the environment and natural resources. Counsel submitted that the state is obligated to ensure that processes which
are likely to endanger the environment are eliminated. He argued that Article 69(2) of the Constitution imposes a positive
obligation on every person, including the petitioners, to co-operate with state organs and other persons to protect and conserve the
environment and ensure ecologically sustainable development and use of natural resources. He urged the court to act in consonance
with the provisions of Article 70 of the Constitution and to take into account the precautionary principle. He urged the court to
dismiss the three suits.

Issues for determination

79. The parties were unable to agree on a common set of issues emerging for determination in the three consolidated suits.
Consequently, the court allowed the 1st and 3rdpetitioners to file a joint statement of issues. The other parties framed their own set of

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issues. We have considered the cases put forward by the petitioners and the respondents, the submissions of counsels and respective
sets of issues framed by the parties. We have summarised the issues which fall for determination in the three consolidated suits as
follows:

(i) Whether the Gazette Notice dated 28/2/2017 published twice in the Kenya Gazette on 14/3/2017 as Numbers 2334 and
2356 by the Cabinet Secretary for Environment and Natural Resources, the 1st respondent, violated the principle of public
participation as set out under Articles 10 and 69(d) of the Constitution; Section 3 of the Environmental Management and
Coordination Act, 1999(EMCA); and Section 5 of the Statutory Instruments Act,2013;

(ii) Whether the impugned Gazette Notice met the requirements for parliamentary scrutiny under of the Statutory
Instruments Act, 2013;

(iii) Whether the impugned Gazette Notice was subject to and satisfied the requirements for a regulatory impact statement
under Sections 6, 7, 8 and 9 of the Statutory Instruments Act, 2013;

(iv) Whether the impugned Gazette Notice violated the petitioners’ right to fair administrative action under Article 47 of the
Constitution and Section 5 of the Fair Administrative Action Act, 2015;

(v) Whether the impugned Gazette Notice violated the petitioners’ legitimate expectation;

(vi) Whether the 1st respondent acted ultra vires her powers under Sections 3 and 86 of EMCA in issuing the impugned
Gazette Notice;

(vii) Whether the impugned Gazette Notice violated Articles 1 (1), 2(1) & (2), 3(1), 24, 40,43, 46, 70, 73(1), 153(4) (a), 232
(1) (a), (b), (d) & (e ) and 259(1) & (3) of the Constitution;

(viii) Whether the punishment prescribed under the plastic ban is oppressive and unreasonable;

(ix) Whether the impugned Gazette Notice should be annulled; and

(x) Who should bear the costs of the three suits.

Whether the impugned Gazette Notice violated the principle of public participation

80. The petitioners contended that the impugned Gazette Notice is null and void for want of public participation. It is necessary to
reproduce the provisions of the Constitution and the Statutory Instruments Act, 2013 cited by the petitioners as the basis for their
contention on this issue.

Article 10 (1) and (2) of the Constitution provides as follows:

(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and
all persons whenever any of them––

(a) applies or interprets this Constitution;

(b) enacts, applies or interprets any law; or

(c) makes or implements public policy decisions.

(2) The national values and principles of governance include––

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a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;

b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the
marginalised;

c) good governance, integrity, transparency and accountability; and

d) sustainable development

Article 69(1)(d) of the Constitution provides as follows:

(1) The State shall—

(d) encourage public participation in the management, protection and conservation of the environment;

Article 232(1)(d) of the Constitution provides as follows:

(1) The values and principles of public service include—

(d) involvement of the people in the process of policy making;

Section 5 of the Statutory Instruments Act, 2013 provides as follows:

1) Before a regulation-making authority makes a statutory instrument, and in particular where the proposed statutory
instrument is likely to—

a) have a direct, or a substantial indirect effect on business; or

b) restrict competition;

the regulation-making authority shall make appropriate consultations with persons who are likely to be affected by the
proposed instrument.

(2) In determining whether any consultation that was undertaken is appropriate, the regulation making authority shall have
regard to any relevant matter, including the extent to which the consultation—

a) drew on the knowledge of persons having expertise in fields relevant to the proposed statutory instrument; and

b) ensured that persons likely to be affected by the proposed statutory instrument had an adequate opportunity to comment
on its proposed content.

(3) Without limiting by implication the form that consultation referred to in subsection (1) might take, the consultation
shall—

a) involve notification, either directly or by advertisement, of bodies that, or of organizations representative of persons who,
are likely to be affected by the proposed instrument; or

b) invite submissions to be made by a specified date or might invite participation in public hearings to be held concerning
the proposed instrument.

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81. The principle of public participation is not new. It did not come with the promulgation of the new Constitution. It was always
recognised as an element of the common law doctrine of natural justice. The parties cited a number of authorities before us in
support of their rival positions on the issue. We wish to mention a few of the cases which we find relevant.

82. In the South African case of Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05)
[2006]ZACC11;2006 (12)BCLR 1399(CC); 2006(6)SA 416(CC) that was cited by the 1st petitioner, the court stated that:

“According to their plain and ordinary meaning, the words public involvement or public participation refers to the process by which
the public participates in something. Facilitation of public involvement in the legislative process, therefore means taking steps to
ensure that the public participate in the legislative process.”

83. In the other South African case of Minister of Health and Another v New Clicks South Africa(Pty) Ltd. and Others [2006](2)SA
311(CC) that was also cited by the 1st petitioner, the court stated that:

“The forms of facilitating an appropriate degree of participation in the law making process are indeed capable of infinite variation.
What matters is that at the end of the day reasonable opportunity is offered to members of the public and all interested parties to
know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of
each case.”

84. In the case of Nairobi Metropolitan PSV Saccos Union Limited &25 others v County of Nairobi Government & 3 others [2013]
eKLR, the court stated that:

“The Preamble of the Constitution sets the achievable goal of the establishment of a society that is based on democratic values,
social justice, equality, fundamental rights and rule of law and has strengthened this commitment at Article 10(1) of the Constitution
by making it clear that the national values and principles of governance bind all state organs, state officers, public officers and all
persons whenever any of them enacts, applies or interprets any law or makes or implements policy decisions. Article 10(2) of the
Constitution establishes the founding values of the State and includes as part of those values, transparency, accountability and
participation of the people. It is thus clear to me that the Constitution contemplates a participatory democracy that is accountable
and transparent and makes provisions for public involvement. Consistent with this, Article 174 (c) of the Constitution provides for
the principles of devolved government and has given powers to the people to enhance self-governance and enhance their
participation in decisions that affect them. Clearly, the making of county laws by members of County Assembly is, in my view, an
essential part of public participation.”

85. In the case of Judicial Service Commission v Mbalu Mutava & Another (supra), the court stated that:

“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional
foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair
administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in
article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The
administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the
principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was
developed.”

86. In the Matter of the Mui Coal Basin Local Community(supra),the court that:

“…..the petitioners only response was that public participation and due diligence undertaken were not adequate. As the cases
before us have noted, it is not possible to come up with arithmetic formula or litmus test for categorically determining when a court
can conclude there was adequate public participation. However as we have alluded above, the courts look at the bona fides of the
public actor, the nature of the subject matter, the length and quality of engagement and the number of mechanisms used to reach as
many people as possible.”

87. In the case of British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 others [2017] eKLR, the court
stated as follows:

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“From these decisions and others that were cited before us by the parties’ advocates, it is clear that public participation is a
mandatory requirement in the process of making legislation including subsidiary legislation. The threshold of such participation is
dependent on the particular legislation and the circumstances surrounding the legislation. Suffice to note that the concerned State
Agency or officer should provide reasonable opportunity for public participation and any person concerned or affected by the
intended legislation should be given an opportunity to be heard. Public participation does not necessarily mean that the views given
must prevail. It is sufficient that the views are taken into consideration together with any other factors in deciding on the legislation
to be enacted.”

88. It is on the foregoing principles that the petitioners’ contention that the 1strespondent failed to undertake public participation
would be considered. The 1st, 2nd and 3rd respondents filed two affidavits sworn by William Kiprono on 29/9/2017 and 15/2/2018 in
which they averred that adequate consultation was conducted before the impugned Gazette Notice banning the use of plastic carrier
bags and flat bags was issued. The 1st, 2nd and 3rd respondents annexed to the said affidavits documents showing that they engaged
the stakeholders in the plastic sector from 2006 to 2017 before the said Gazette Notice was issued.

89. The said documents which include minutes of the meetings held over that period and attendance records show that the 1st and 3rd

respondents and the stakeholders in the plastic sector initially held general discussions on plastic management in Kenya. The 1st

respondent thereafter set up a task force in 2014 to coordinate the implementation of are commendation to stop the use of plastic
carrier bags in Kenya. The material before us shows that the consultative meetings that were called by the 1st and 3rd respondents
were attended by key stakeholders in the plastic industry including plastic manufacturers, retailers and large consumers of plastic
bags. The attendance lists produced by the respondents show that between 2012 and 2015, representatives of the 1st respondent, the
3rd respondent, the 1st petitioner, Kenya Bureau of Standards (KBS), Retail Trade Association (RETRAK), Kenya Industrial
Research and Development Institute (KIRDI), Decase Chemicals, King Plastic Industries, Packaging Manufacturers(1976) Limited,
Polythene Industries Limited, Government Chemist, Laneeb Plastics Limited Cleanshelf Supermarkets, Nakumatt Supermarkets,
Naivas Supermarkets, Kenya Private Sector Alliance, Ministry of Health and Kenya Water Towers Agency (KWTA) attended
consultative meetings.

90. It is clear from the minutes of the meetings held between 2014 and 2015 that, what was on the agenda was the stoppage of the
use of plastic bags in Kenya. The 3rd petitioner had contended that the ordinary Kenyans such as individual plastic users and
workers in the plastic industry whom he is representing were not consulted. We are satisfied that the 1st respondent acted in good
faith and consulted many stakeholders in the plastic industry. We are of the view that it would not have been possible to consult all
users of plastic bags and players in the plastic industry. We have noted that most of the persons who attended the consultative
meetings did so in representative capacity. In our view, the organisations they represented formed the largest segment of the persons
who were to be affected most by the plastic bags ban. The question as to what degree of engagement satisfies the threshold of
public participation was discussed In the Matter of the Mui Coal Basin Local Community [supra] case where the court stated that:

“(d)……… public participation does not dictate that everyone must give their views on an issue of environmental governance. To
have such a standard would be to give a virtual veto power to each individual in the community to determine community collective
affairs. A public participation programme, especially in environmental governance matters must, however, show intentional
inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public
participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation
regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy,
legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought
and taken into account. (e) Fifth, the right of public participation does not guarantee that each individual’s views will be taken as
controlling; the right is one to represent one’s views – not a duty of the agency to accept the view given as dispositive. However,
there is a duty for the government agency or Public Official involved to take into consideration, in good faith, all the views received
as part of public participation programme. The government agency or Public Official cannot merely be going through the motions
or engaging in democratic theatre so as to tick the Constitutional box.”

91. We are satisfied that those who would be most affected by the impugned Gazette Notice were consulted and participated in the
deliberations that led to the issuance of the ban. The 3rdpetitionercontended that those who were most affected by the ban on plastic
bags were the consumers and the workers in the plastic manufacturing industries. We are not convinced on the evidence before us
that that is the case. The 1st and 3rd respondents’ contention that the members of the public have enthusiastically switched to more
environmentally friendly carrier bags has not been controverted by the petitioners. The same applies to the 1st and 3rd respondents’
contention that the operations at the plastic factories are continuing since not all types of plastic bags and products were banned.

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92. The 1st petitioner also contended that although it was consulted, the subject of consultation was different from the conclusion or
decision that was made by the 1st respondent. As we have stated above, the discussions that were held between the 1st and
3rdrespondents and the stakeholders in the plastic industry during the period 2014/2015 concerned the ban on the use of plastic
carrier bags in Kenya. It is not true as the 1st petitioner claimed that the consultation was limited to the management of plastic waste.
Again as was stated in the case cited above, the duty that was placed upon the 1st and 3rd respondents by law was to inform, consult
and obtain the views of the public. They were not obliged to accept the views which were given by the stakeholders. The fact that
the 1st respondent decided to ban plastic carrier bags instead of adopting the other proposals for managing plastic waste suggested
by the stakeholders does not nullify the public participation exercise that was conducted by the 1st and 3rd respondents.

93. In the case of British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 others (supra),the court stated
that:

“What the appellant is really saying is that although they had their say, their views were not adequately considered. However, the
fact that the views of the appellant and the interested parties did not carry the day was neither here nor there. All that the learned
judge needed to establish was the fact that that step of involving the public and any other affected persons was taken. Given the
facts that were before the learned judge, we have no reason to fault the learned judge for finding that the stakeholder meetings,
discussions and communications constituted adequate public participation and consultation.”

94. Due to the foregoing, we are satisfied that the 1stand 3rdrespondents conducted the process of public participation before issuing
the impugned Gazette Notice.

Whether the impugned Gazette Notice met the requirements for parliamentary scrutiny under the Statutory Instruments
Act, 2013

95. The second issue is whether the impugned Gazette Notice met the requirement for parliamentary scrutiny under the Statutory
Instruments Act. The petitioners contended that the impugned Gazette Notice did not meet the requirements for parliamentary
scrutiny under Section 11 of the Statutory Instruments Act.

96. The Statutory Instruments Act was enacted in 2013. The object of this Act is to provide a comprehensive regime for the making,
scrutiny, publication and operationalisation of statutory instruments. The legal framework on parliamentary scrutiny of statutory
instruments is contained in Part IV (Section 10 to Section 19) of the Act.

97. It is clear from the language of the Act that the purpose of the above legal framework is to facilitate the scrutiny, by Parliament,
of statutory instruments and to outline the circumstances and manner in which the statutory instruments may be disallowed. The
overall objective of the legal framework is to ensure that every statutory instrument that is required to be scrutinized by parliament
is scrutinised. Where the relevant Committee of Parliament resolves that the statutory instrument should be revoked, the committee
is required to submit a report containing a resolution to that effect only.

98. The petitioners contended that the 1st respondent did not cause the impugned Gazette Notice to be laid before parliament within
seven days from the date of publication. They argued that the said Gazette Notice was null and void because it was not laid before
Parliament within seven days from the date it was published. In response, the respondents argued that the requirement for
parliamentary scrutiny was met because before the expiry of the seven days, the Hon. Olago Aluoch, Member of Parliament for
Kisumu West Constituency, on behalf of the 1st petitioner, caused the impugned Gazette Notice to be laid before Parliament through
a public petition. The petition together with the Gazette Notice were committed to a departmental committee of Parliament for
consideration.

99. The fact that the Hon. Olago Aluoch presented the petition together with the Gazette Notice to Parliament is not contested.
Similarly, it is not disputed that the petition together with the Gazette Notice were committed to a departmental committee of
Parliament and the Committee considered the petition together with the Gazette Notice and made recommendations. It was also
common ground that Parliament did not revoke the impugned Gazette Notice. The public petition by the 1st petitioner read as
follows:

PUBLIC PETITION

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BY THE KENYA ASSOCIATION OF MANUFACTURERS

ON THE BAN ON THE USE, MANUFACTURE AND

IMPORTATION OF PLASTIC BAGS

I, UNDERSIGNED on behalf of members of Kenya Association of Manufacturers DRAW the attention of the House to the
following:

1. THAT, the Environment Cabinet Secretary, via a Gazette Notice dated 28th February 2017, announced a ban on plastic
bags use, both domestic and commercial use, which ban is scheduled to take effect six months from the date of the said
Gazette Notice;

2. THAT, polythene is one amongst materials found in the environment and that a large portion of these waste materials are
not being collected and treated in an environmentally sound manner to ensure disposal and this is a real challenge to the
environment;

3. THAT, the Global Waste Management Outlook for 2015, a report by the United Nations Environment Program (UNEP)
and the International Solid Waste Association (SWA) stated that “inadequate waste management has become a major public
health, economic and environmental problem, with 7-10 billion tonnes of urban waste produced each year and 3 billion people
worldwide lacking access to controlled waste disposal facilities fueled by a population growth, urbanization and rising
consumption, the volumes of waste are likely to even double in lower income African and Asian cities by 2013”;

4. THAT, the ban imposed by the Cabinet Secretary for Environment does not resolve the problems identified by experts or
create a sustainable approach to addressing the problem.

5. THAT, there are over 176 plastic manufacturing companies in the country which is 3.4% of all the manufacturers
combined;

6. THAT, the cost value of the plastic manufacturing sector is in excess of Kenya Shillings 88 Billion;

7. THAT, the direct employment created by the plastic sector is over 289 of the Kenyan employees which is approximately
60,000 while the indirect employment through retailers, wholesalers and outlets is well over 600,000 personnel nationwide
and their annual turnover is over Kenya Shillings 100 Billion;

8. THAT, any interference with the sector in terms of a prohibition would restrict the country’s competitive edge with EAC
and in the region, and

9. THAT, the issues in respect of which this Petition is made are not pending before any court of law, constitutional or legal
body.

THEREFORE your humble petitioners PRAY that the National Assembly, through the Departmental Committee on
Environment and Natural Resources.

a) Recommends suspension of the implementation of the Gazette Notice since the notice given is too short;

b) Recommend amendment to the Environment Management and Co-ordination Act No. 8 of 1999 to ensure inclusion of
fiscal incentives such as Green Levy Fund, Tax incentives on capital goods and tax rebates to industries promoting
management, and imposition of fines for littering in unlawful places among others; and

c) Recommend establishment of a waste management levy to be charged on all plastic at source (point of entry) at one

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percent of the value equivalent to the product’s cost insurance and freight. The funds should be collected by the Treasury
through the Kenya Revenue Authority and allocated to the Ministry of Environment and the National Environment
Management Authority

And your PETITIONERS will ever pray,

PRESENTED BY

signed

Hon. John Olago Aluoch, MP

MEMBER FOR KISUMU WEST CONSTITUENCY

100. The question that calls for an answer is whether the presentation of the Gazette Notice to Parliament by way of public petition
as opposed to the delivery of the Gazette Notice to the Clerk of the House by the Cabinet Secretary and its consideration by the
Departmental Committee on Environment and Natural Resources met the criteria for parliamentary scrutiny. In our view, it did.
We say so for two reasons. Firstly, the overall objective of the concept of parliamentary scrutiny of statutory instruments is to
afford Parliament the opportunity to interrogate the statutory instrument and revoke it if it deems fit. In this regard, parliament’s
power to interrogate and revoke statutory instruments is unfettered. Secondly, besides the procedural framework on parliamentary
scrutiny set out under Part IV (Section 10 to Section 19) of the Statutory Instruments Act, Articles 37 and 119 of the Constitution
and Standing Orders Number 219, 220, 222,225 and 227 provide for public petitions as an alternative mechanism through which
Parliament may be invited to undertake scrutiny of legislation.

101. Article 37 of the Constitution, gives every person a right to present petitions to public authorities while Article 119 of the
Constitution gives every person the right to petition Parliament to consider any matter within its authority, including to enact,
amend or repeal any legislation. Article 119 further gives Parliament the power to formulate a procedural framework for the
exercise of this right by the public.

102. Pursuant to Articles 119 of the Constitution, Parliament enacted Part XXIII of the Parliamentary Standing Orders to provide an
elaborate framework for presentation, consideration and disposal of public petitions. Standing Order No. 219 in Part XXIII of the
Standing Orders defines a petition as:

a written prayer to the house under Article 37 or 119 of the Constitution by a member of the public requesting the house to
consider any matter within its authority, as contemplated in Article 94 and 95 of the Constitution, including enacting,
amending or repealing any legislation.

103. A petition to the House is either submitted to the Clerk by the petitioner and reported to the House by the Speaker or presented
by a member of parliament on behalf of the petitioner with the consent of the Speaker under Standing Order No. 220. A Member of
Parliament intending to present a petition is required to give the Clerk two sitting days’ notice of intention to present the petition.
The Clerk then examines the petition to ensure that it is presented in the manner, form and content prescribed by the Standing
Orders. On the appointed day, the Speaker directs the Member to present the petition to the House, and the Member takes to the
floor of the House, reads the petition and lays the petition on the Table of the House. Every petition presented to the House stands
committed to the relevant Departmental Committee of the House and the Committee has sixty days within which to consider the
petition. This elaborate framework in the Standing Orders is intended to afford Parliament the opportunity to scrutinize and act on
the petition. Where the petition calls for the revocation or the repeal of the delegated legislation, the Committee scrutinises the
legislation to establish the merit of the petition.

104. There is uncontroverted evidence that the impugned Gazette Notice was presented to Parliament by the Hon. Olago Aluoch as
an annexure to the 1st petitioner’s petition to Parliament urging Parliament to suspend the Gazette Notice. Seized of the petition and
the Gazette Notice, Parliament committed the petition and the Gazette Notice to the relevant Departmental Committee. The
Committee considered the petition and the Gazette Notice and prepared a report. The Committee did not recommend the revocation
of the Gazette Notice as required under Section15 (1) of the Statutory Instruments Act or under Standing Order No. 227.

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Consequently, the Gazette Notice remains in force as a statutory instrument.

105. The petitioners urged us to find that the Gazette Notice was not scrutinised by Parliament. They relied on the decision in
Kenya Country Bus Owners Association (through Paul G. Muthumbi - Chairman, Samuel Njuguna - Secretary, Joseph Kimiri -
Treasurer) & 8 Others v Cabinet Secretary for Transport & Infrastructure &5 Others (supra). While we agree with the findings of
the court in the cited case that parliamentary scrutiny of statutory instruments is a mandatory requirement, we are of the view that
the facts of that case are distinguishable. In the Kenya Country Bus Owners Association case, the statutory instrument was not
tabled in the House for scrutiny at all. In the present dispute, the statutory instrument was tabled in the House through a public
petition within the framework of Article 119 of the Constitution and Standing Order Number 220 and it was scrutinized by
Parliament's Departmental Committee on Environment and Natural Resources.

106. The petitioners faulted the fact that the Gazette Notice was considered by the National Assembly's Committee on the
Environment and Natural Resources instead of the Committee on Delegated Legislation. In our view, that cannot be a basis for
contending that the requirement for parliamentary scrutiny was not met. Once the instrument was laid on the Table of the House, it
became a property of the House and it was the duty of the House to commit the instrument to the proper Committee. We note that in
its 23rdSitting held on 06/04/2017 the Departmental Committee on Environment and Natural Resources sought to know if the
Committee on Delegated Legislation was seized of the same matter.

107. The other reason why we hold the view that Parliament was afforded the opportunity to scrutinise the impugned Gazette Notice
is the fact that the Departmental Committee had the unfettered power to recommend its revocation. Had it done so and the House
accepted the recommendation, the Gazette Notice would have stood revoked notwithstanding the fact that its tabling in the House
took the route prescribed by Article 119 of the Constitution as opposed to the route prescribed by the Statutory Instruments Act.

108. In light of the foregoing, our finding on this issue is that, although the impugned Gazette Notice was not forwarded to the Clerk
of the National Assembly as contemplated by Section 11 of the Statutory Instruments Act, it was nonetheless laid on the Table of
the House by the Honourable Olago Aluoch M.P through a public petition by the 1stPetitioner pursuant to Article 119 of the
Constitution and Standing Order No. 220.

Whether the impugned Gazette Notice was subject to and satisfied the requirement for a regulatory impact statement under
Sections 6, 7, 8 and 9 of the Statutory Instruments Act

109. The petitioners contended that the Gazette Notice imposed significant costs on the stakeholders in the plastic sector and ought
to have been preceded by a regulatory impact statement as required under Section 6 of the Statutory Instruments Act. They urged
the court to annul the Gazette Notice on the ground that it was not preceded by a regulatory impact statement. On their part, the
respondents contended that the impugned Gazette Notice was exempted from the requirement for a regulatory impact statement
under Section 9(g) of the Act.

110. Section 6 of the Statutory Instruments Act requires that where a statutory instrument is likely to impose significant costs on the
community or a part of the community, the regulation making authority should prior to making the statutory instrument prepare a
regulatory impact statement about the instrument. Among other features, the regulatory impact statement is supposed to contain:
objectives of the instrument and the reasons for the objectives; statement explaining the effect of the instrument; statement of other
practicable means of achieving those objectives; an assessment of the costs and benefits of the proposed instrument and any other
practicable means of achieving the same objectives; the reasons why the other means are not appropriate; and a draft copy of the
proposed statutory instrument. The assessment of costs and benefits is expected to include an assessment of the economic,
environmental and social impact and the likely administrative and compliance costs.

Section 9 (g) of the Act provides as follows:

A regulatory impact statement need not be prepared for a proposed statutory instrument if the proposed legislation only
provides for, or to the extent it only provides for-

(g) a matter arising under legislation that is substantially uniform or complementary with legislation of the National
Government or County.

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111. The question to be answered is whether the material statutory instrument was substantially uniform or complementary with a
legislation of the National or County Government so as to fall within the exemption contemplated under Section 9 (g) of the
Statutory Instruments Act. The respondents contended that the Gazette Notice was a policy regulation made under Section 86 of
EMCA and for this reason; it fell within the exemption under Section 9 (g). The petitioners countered this, by contending that "a
total ban on plastic carrier bags is a whole new kettle of fish that is not uniform with any legislation or policy". They added, "nor
can it be said to be complementary (i.e supports or reinforces) for there is no such legislation or policy".

112. The tenor and import of Section 9 (g) of the Statutory Instruments Act was the subject of interpretation by the Court of Appeal
in British American Tobacco Ltd. v Cabinet Secretary for the Ministry of Health & 5 Others (supra). In that case, the appellants
challenged regulations made under the Tobacco Control Act, 2007on the ground that the regulations were not preceded by a
regulatory impact statement. The respondents contended that the regulations were exempted under Section 9 (g) of the Statutory
Instruments Act because they were uniform with and complementary to the Tobacco Control Act. The Court adopted the Black's
Law Dictionary (9th Edition) definition of the word uniform as "characterized by lack of variation, identical or consistent".
The Court further adopted the Concise Oxford English Dictionary (12th Edition) definition of the word "complementary" as "(of
two or different things) combining in such a way as to form a complete whole or enhance each other". Based on that
definition, the court held that because the impugned regulations derived their existence directly from the Tobacco Control Act, and
were subsidiary legislation made under the powers donated by Section 53 of the Act for the purpose of better carrying out the
objects of the Act, they were complementary to the Act hence enjoyed exemption under Section 9 (g) of the Statutory Instruments
Act.

113. In the dispute before us, the impugned Gazette Notice was issued under Sections 3 and 86 of EMCA. Section 3 of EMCA sets
out the general principles of environmental governance in Kenya. Section 86 donates to the Cabinet Secretary responsible for
environment power to take certain specified measures to protect the environment.

114. We have carefully examined the impugned Gazette Notice and the provisions of EMCA and are satisfied that the Gazette
Notice complements the general environmental governance principles set out in Section 3 of EMCA. We are therefore satisfied that
the Gazette Notice enjoys exemption under Section 9 (g) of the Statutory Instruments Act. Our finding on this issue therefore is that,
the impugned Gazette Notice was not subject to the requirement for a regulatory impact statement under Section 6 of the Statutory
Instruments Act.

Whether the impugned Gazette Notice violated the petitioners’ right to fair administrative action

115. This issue is connected to the issues considered above. The petitioners contended that the impugned Gazette Notice is null and
void having been issued in violation of the requirements for fair administrative action under Article 47 of the Constitution and
Section 5 of the Fair Administrative Action Act. In essence, the petitioners’ contention is that the rules of natural justice were not
observed in the issuance of the said Gazette Notice. The petitioners alleged that the impugned Gazette Notice is tainted with bias
and that, they were neither given notice nor were they heard before it was issued.

116. In the Indian Supreme Court case of Ajit Kumar Nag v G.M.(PJ), Indian Oil Corpn. Ltd.,(2005) 7 SCC 764 that was cited in
All India Plastic Industries Association v Government of NCT of Delhi, Writ Petition(Civil) No. 883 of 2009 & CM 4355/2009, 14th

July, 2009the court stated as follows:

“But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in
straightjacket. They must yield to and change with the exigencies of situations. They must be confined within their limits and cannot
be allowed to run wild…….While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our
opinion, the approach of the court in dealing with such cases should be pragmatic rather that pedantic, realistic rather that
doctrinaire, functional rather that formal and practical rather that precedential.”

117. As we have observed above, the 1st and 3rd respondents consulted major stakeholders in the plastic industry before issuing the
ban on plastic carrier bags. We are of the opinion that the requirement for a hearing was met when major stakeholders in the plastic
industry who would be most affected by the ban were consulted on the issue and their views taken. It was not practicable to consult
and take the views of every Kenyan who had an interest in plastic bags before the said ban was imposed.

118. We are in agreement with the petitioners that the 1st and 3rd respondents may not have complied strictly with the notification

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requirements provided under Section 5 of the Statutory Instruments Act. However we are satisfied that the spirit of that section was
met in that the 1st and 3rd respondents reached out to major stakeholders in the plastic industry, notified them of what they had
intended to do, sought and obtained their views.

119. On the issue of bias, no evidence was placed before us to show that the 1st respondent was biased against any of the petitioners.
The impugned Gazette Notice did not prohibit all plastic bags. The ban only affected carrier and flat bags for domestic and
commercial use which were considered to be a major source of plastic waste. There is no evidence that in banning these categories
of plastic, the 1st respondent was actuated by ill will. The reason given for the ban is in our view reasonable.

Whether the impugned Gazette Notice violated the petitioners’ legitimate expectation

120. On the issue of violation of legitimate expectation, again, we are not satisfied that that was proved. In their book, Judicial
Review of Administrative Action, 6th Edition, Sweet & Maxwell, De Smith, Woolf & Jowell, at page 609, have outlined the
following key features of the doctrine of legitimate expectation:

“A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation
that he will receive or retain a benefit or advantage. It is a basic principle of fairness that legitimate expectation ought not to be
thwarted. The protection of legitimate expectation is at the root of the constitutional principle of the rule of law, which requires
predictability and certainty in government’s dealings with the public.”

121. The petitioners did not place any evidence before us showing that the respondents had at any time promised or induced them to
believe that plastic bags would not be banned. In the circumstances, we are unable to see any basis for the petitioners’ alleged
expectation that the plastic bags could not be banned by the 1st respondent. We are not satisfied therefore that the impugned Gazette
Notice violated any legitimate expectation.

Whether the 1st respondent acted ultra vires her powers under Sections 3 and 86 of EMCA in issuing the impugned Gazette
Notice

122. The petitioners contended that the 1st respondent acted ultra viresher powers because Sections 3 and 86 of EMCA did not
empower her to ban plastic bags. They argued that these sections only gave power to the 1st respondent to issue guidelines and
prescribe measures for the management of plastic waste. In response, the respondents argued that environmental rights are
fundamental rights and that the petitioners are enjoined to cooperate with the State in ensuring that the environment is protected and
safeguarded. They contended that the ban on plastic has ensured the environment is protected and the right to a clean environment is
safeguarded. They added that alternatives to plastic bags are now being used since the plastic ban was implemented. They invited
the court to uphold the impugned Gazette Notice as a way of enforcing the right to a clean and healthy environment.

123. The respondents submitted that Section 3 of EMCA spells out the principles to be applied in the management of the
environment which include sustainable development as a development model for meeting the needs of the present generation
without compromising the ability of future generations and the precautionary principle which calls for the prevention of harmful
activities and substances that may pose a threat to the environment even without conclusive scientific proof that links the substance
or activity to environmental damage. The respondents also argued that Section 86 of EMCA confers power to the 1strespondent to
identify materials and processes that are harmful to the environment and prescribe measures for management of the materials and
processes.

124. A proper understanding of Sections 3 and 86 of EMCA requires that the two sections be interpreted in a manner that meets the
constitutional underpinnings on the environment. For this reason, it is necessary for us to consider in detail the relevant provisions
of the Constitution.

125. The primacy of the environment can be discerned from the Constitution of Kenya. The preamble states among others that:

We, the people of Kenya-RESPECTFUL of the environment, which is our heritage, and determined to sustain it for the
benefit of future generations:

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126. Article 20 (2) of the Constitution provides that every person shall enjoy the rights and fundamental freedoms in the Bill of
Rights to the greatest extent consistent with the nature of the right or fundamental freedom. These rights include the right to a clean
and healthy environment in Article 42 of the Constitution.

Article 42 of the Constitution provides as follows:

Every person has the right to a clean and healthy environment, which includes the right—

(a) to have the environment protected for the benefit of present and future generations through legislative and other
measures, particularly those contemplated in Article 69; and

(b) to have obligations relating to the environment fulfilled under Article 70.

127. Article 69 of the Constitution provides as follows:

(1) The State shall—

a) Ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources, and
ensure the equitable sharing of the accruing benefits;

b) …………………………………

c) …………………………………

d) encourage public participation in the management, protection and conservation of the environment;

e) ………………………………….

f) ………………………………….

g) eliminate processes and activities that are likely to endanger the environment; and

h) …………………………………..

(2) Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and
ensure ecologically sustainable development and use of natural resources.

128. Article 72 of the Constitution mandated Parliament to enact legislation to give full effect to the provisions on the right to a
clean and healthy environment as provided under Part 2 of Chapter 5 of the Constitution. Pursuant to this Article of the Constitution,
Parliament amended EMCA through the Environmental Management and Coordination (Amendment) Act No. 5 of 2015 (EMCAA,
2015).

Section 3 of EMCA as amended by EMCAA, 2015 provides as follows:

1) Every person in Kenya is entitled to a clean and healthy environment in accordance with the Constitution and the
relevant laws and has the duty to safeguard and enhance the environment.

2) The entitlement to a clean and healthy environment under subsection (1) includes the access by any person in Kenya to
the various public elements or segments of the environment for recreational, educational, health, spiritual and cultural
purposes.

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(2A)every person shall cooperate with state organs to protect and conserve the environment and to ensure the ecological
sustainable development and use of natural resources.

3) If a person alleges that the right to a clean environment has been, is being or is likely to be denied, violated, infringed, or
threatened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully
available, that person may on his behalf or on behalf of a group or class of persons, members of an association or in public
interest apply to the Environment and Land Court for redress and the Environment and Land Court may make such
orders, issue such writs or give such directions as it may deem appropriate to –

a) prevent, stop or discontinue any act or omission deleterious to the environment;

b) compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment;

c) require that any on-going activity be subjected to an environment audit in accordance with the provisions of this act;

d) compel the persons responsible for the environmental degradation \to restore the degraded environment as far as
practicable to its immediate condition prior to the damage; and

e) provide compensation for any victims of pollution and the cost of beneficial uses lost as a result of an act of pollution and
other losses that are connected with or incidental to the foregoing.

4) A person proceeding under subsection (3) of this section shall have the capacity to bring an action notwithstanding that
such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or
injury provided that such action – (a) is not frivolous or vexations; or (b) is not an abuse of the court process.

5) In exercising the jurisdiction conferred upon it under subsection

6) (the Environment and Land Court shall be guided by the following principles of sustainable development;

(a) the principle of public participation in the development of policies, plans and processes for the management of the
environment;

(b) the cultural and social principle traditionally applied by any community in Kenya for the management of the
environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality or
inconsistent with any written law;

(c) the principle of international co-operation in the management of environmental resources shared by two or more states;

(d) the principles of intergenerational and intergenerational equity;

(e) the polluter-pays principle; and

(f) the pre-cautionary principle.

129. Section 86 of the same Act as amended provides as follows:

The Cabinet Secretary shall, on recommendation of the Authority -

(1) identify materials and processes that are dangerous to human health and the environment;

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(2) issue guidelines and prescribe measures for the management of the materials and processes identified under subsection
(1);

(3) prescribe standards for waste, their classification and analysis, and formulate and advise on standards of disposal
methods and means for such wastes; or

(4) issue regulations for the handling, storage, transportation, segregation and destruction of any waste.”

130. We are not in agreement with the petitioners that the 1st respondent did not have power under Sections 3 and 86 of EMCA to
ban plastic bags. Besides the Constitution guaranteeing the right to a clean and healthy environment to every person, Article 69 of
the Constitution sets out the obligations of the State in respect of the environment. One of these is the requirement to ensure
sustainable exploitation, utilisation, management and conservation of the environment. The State is also enjoined to eliminate
processes and activities that are likely to endanger the environment.

131. We are of the view that, if the law enacted by Parliament pursuant to Article 72 under the obligations on the environment does
not give the 1st respondent power to eliminate processes and activities that are harmful and likely to endanger the environment, then
such a law would fail to meet the constitutional requirement of giving effect to the right to a clean and healthy environment. The
court in construing such a law would be required by Article 20 of the Constitution to develop it so as to give effect to the right in
question.

132. As we have highlighted above, Article 69 of the Constitution among others imposes an obligation on the State to eliminate
processes and activities that are likely to endanger the environment. The Oxford Advanced Learner’s Dictionary defines the word
“eliminate” as “to remove or get rid of something” while “ban” is defined as “to decide or say officially that something is not
allowed”. The synonym of “ban” is “prohibit”. This means that banning is one of the ways of eliminating processes and activities
that are likely to endanger the environment.

133. In our view, the right to a clean and healthy environment is the highest form of right in the hierarchy of constitutional rights.
This is because a clean and healthy environment is the sustainer of life itself which is the trajectory on which all other forms of
rights gravitate. The right to a clean and healthy environment is fundamentally a right to life. In the case of Peter K. Waweru v
Republic [2006] eKLR, the court stated that:

“Under section 71 of the Constitution all persons are entitled to the right to life - In our view the right to life is not just a matter of
keeping body and soul together because in this modern age that right could be threatened by many things including the
environment. The right to a clean environment is primary to all creatures including man, it is inherent from the act of creation, the
recent restatement in the Statutes and the Constitutions of the world notwithstanding.”

134. In the case of Nzioka & 2 Others v Tiomin Kenya Limited[2001] eKLR, the court while considering the balance of
convenience held that environmental degradation is not necessarily an individual concern or loss but a public loss. The convenience
to be considered in such a matter is not only that of the parties but also of the public at large so that if the injunction was not issued,
any form of feared degradation, danger to health and pollution was to the detriment of the population. This case was decided prior to
the promulgation of the 2010 Constitution which provides for the right to a clean and healthy environment.

135. The courts in other jurisdictions have also defined the right to a clean and healthy environment. In the Supreme Court of
Philippines case of Oposa v Factoran 224 SCRA 792whichinvolved grant of timber license agreements to corporations for
commercial logging purposes, the petitioners through their parents sought to stop the Department of Environment and Natural
Resources from issuing licences to cut timber, invoking their right to a healthy environment enshrined in the Constitution of the
Philippines. The court stated that the right to a balanced and healthy ecology incorporated in the Constitution carried with it the duty
to refrain from impairing the environment and implies among other things, the judicious management and conservation of the
country’s forests.

136. The court ruled that the petitioners could for themselves, their generation and succeeding generations, file a class suit. This
decision was based on the concept of intergenerational responsibility as far as the right to a balanced and healthy ecology was
concerned. The court came up with the expression “rhythm and harmony of nature” and held that every generation has a

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responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthy ecology.

137. In the Nigerian case of Gbemre v Shell Petroleum Co. Nigeria Ltd. & Others (2005) AHRLR 151 (NgHC 2005), the applicants
argued that the gas flaring in the course of oil extraction violated their right to life and a healthy environment. The applicants argued
that connected to their right to life and dignity, was the right to enjoy the best attainable state of physical and mental health as well
as the right to a general satisfactory environment favourable to their development.

138. The court held that the fundamental right to life and dignity of the human person as guaranteed by the Constitution inevitably
includes the right to a clean, poison-free, pollution–free healthy environment. The court found that the actions of the 1st and 2nd

respondents in continuing to flare gas in the course of their oil exploration and production in the applicant’s community was a gross
violation of their right to life including healthy environment and dignity of human person as enshrined in the constitution.

139. Although we are not experts on plastic and cannot render ourselves authoritatively on the issue as to whether plastic is harmful
or not, we cannot avoid considering and expressing ourselves on the arguments that were put before us on the issue. The petitioners
did not dispute that unless handled properly, plastic produces waste that would potentially cause significant environmental
degradation. The petitioners’ argument was that plastic waste is capable of effective management through recycling to minimise the
amount of plastic reaching the disposal stage.

140. The petitioners argued strongly that the plastic per se was not the problem and that the 1st and 3rd respondents acted
unreasonably and out of proportion in banning plastic carrier bags instead of targeting plastic waste. The petitioners argued that
plastic has positive social and environmental aspects and stressed that the negative impacts can be managed and that the ban on
plastic was arbitrary, irrational and unjustified.

141. The 1st petitioner argued that the respondents had stated in their affidavits that plastic carrier bags are blown around and
consumed by livestock and wildlife to their peril, and that tonnes of plastic end up in the ocean endangering flora and fauna without
giving any evidence to back that assertion.

142. The 1st petitioner urged the court to approach the issue not on the basis of plastics being an unmitigated environmental evil but
as a useful product with tremendous social utility with both positive and adverse environmental impacts, which are capable of
amelioration by proper waste management. It argued that plastic waste management schemes have been successfully developed and
implemented in other jurisdictions. It urged that paper made from trees preferred by the respondents would not be a suitable option
to plastic as it would have a negative impact on our forest cover.

143. The 1st petitioner argued that plastic is an extremely cost effective, versatile and durable synthetic product made from oil by-
product used in various sections such as packaging, construction, transportation, health care and electronics. It averred that plastic
for domestic use is recyclable and gave the United Kingdom(UK) as an example of countries which had introduced or were in the
process of introducing recycling schemes.

144. From the undated British Broadcasting Corporation (BBC) report cited by the 1stpetitioner, we have noted that the Polyethylene
terephthalate (PET) and High-density polyethylene (HDPE) bottles in the UK were collected by 92% of the Councils while the low
density polyethylene carrier bags were only collected by some supermarkets and recycled into low grade uses such as bin bags. The
report indicated that the carrier bags were not generally collected from households for recycling although it was expected that mixed
plastic recycling would soon be underway in the UK.

145. The 1stpetitioner contended that although all plastic bag manufacturers faithfully remitted Excise Duty levies which were to
augment the Government funds to specifically address plastic waste management as agreed in the joint implementation plan, the 1st,
2nd and 3rd respondents failed to fulfill their commitments under the said plan and did not channel the accumulated funds towards
developing a plastic waste management program as envisaged. The 1st petitioner contended that this state of affairs led to
manufacturers of plastics being blamed and public perception being created that the manufacturers are the source and cause of the
plastic waste menace in the country.

146. On his part, the 3rd Petitioner argued as we have stated above that plastic is not a problem, and that what poses a challenge to
the environment is the plastic litter and the “throw away culture” of Kenyans. The 3rd Petitioner contended that the 3rd respondent

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ignored the requirement to consider less restrictive means to achieve the intended objective.

147. The 3rd petitioner argued that the impugned Gazette Notice pre-empted the National Waste Management Bill and the Report by
the National Assembly’s Departmental Committee on Environment and National Resources pending before Parliament. He urged
the court to recommend that parliament provides a mechanism for managing the challenges of plastic litter. The 3rdpetitioner opined
that the ban was a knee jerk reaction and yet there was no impending doom to warrant the summary execution.

148. We have considered the able arguments by the counsels for the petitioners on the social and economic benefits of plastic and
the approaches the respondents should have taken in dealing with plastic waste. We are not persuaded that the benefits to be derived
from plastic outweigh its negative effects on the environment. We are also not persuaded that the approach that was taken by the 1st

and 3rd respondents in dealing with the threat that plastic poses to the environment was unreasonable. To the contrary, we are
persuaded by the arguments by the respondents that the ban on plastic bags will work positively to protect the environment from
plastic waste.

149. As we have mentioned above, the petitioners blamed the 1st and 3rd respondents for failing to fulfil their obligations under the
joint implementation plan for the sustainable management of plastic waste of 29/6/2007. The 1st petitioner also mentioned the
recommendation it made in 2016 for the setting up of a public private partnership venture for the imposition of a levy that was to be
utilised in the sustainable management of plastic waste to show that the 1st respondent had other ways of managing plastic waste
apart from total ban.

150. EMCA defines the “polluter-pays principle” to mean that the cost of cleaning up any element of the environment damaged by
pollution is to be paid or borne by the person convicted of pollution under the Act or any other applicable law. The polluter pays
principle essentially requires that the polluter should bear the expenses of carrying out pollution prevention or paying for damage
caused by pollution. Our view on these submissions is that the 1st respondent was not under an obligation to employ the polluter
pays principle in the management of plastic waste.

151. We are of the view that the 1st respondent was at liberty to employ one or series of initiatives to deal with the plastic problem.
As we have stated earlier, during the stakeholder consultations, several proposals were made to the 1st and 3rd respondents on how to
tackle the plastic waste. We have made a finding above that the 1st respondent was not obliged to accept any of the proposals. The
1st respondent did not therefore commit any error in her failure to implement the other initiatives and strategies that had been
proposed to deal with the plastic menace which the petitioners referred to as “less restrictive”.

152. The petitioners cited countries like South Africa and Uganda where the plastic ban was unsuccessfully implemented. We are
aware that there are jurisdictions that have successfully banned the manufacture and use of plastic bags with the objective of
protecting and conserving the environment. Rwanda which is a member of the East African Community successfully banned plastic
bags in 2008. We are not convinced that the plastic ban imposed by the 1st respondent is doomed to fail because similar initiatives in
other jurisdictions have not seen the light of the day.

153. In a ruling that was delivered in the Indian case of Maharashtra Plastic Manufacturers Association v State of Maharashtra and
Another on 13th April, 2018 on an interlocutory application, the Bombay High Court, declined to stay the Maharashtra State
Governments’ decision to ban plastic materials and require citizens to dispose the existing stock within 3 months. In that case, the
State Government had issued a notification imposing a ban on the manufacture, use, sale, distribution and storage of all plastic
materials such as one–time use bags, spoons, plates, PET bottles and also thermocol items. The manufacturers argued that the
prohibition on plastic was illegal and the State did not have the powers to impose the ban via an executive fiat. In support of the ban,
the State had cited the plastic waste as well as the deaths of whales and cows which were found to have kilograms of plastics in their
stomachs. The plastic manufacturers and retailers challenged the notification which gave them 3 months to clear their stock on the
ground that the ban was arbitrary, bad in law and violated their fundamental right to livelihood.

The court stated as follows:

“As far as first part [clause 3(1)(1)] of the impugned notification is concerned, it concerns plastic bags and mainly disposable items
of plastic and thermocol. It has a direct nexus with the object of reducing the quantity of plastic waste which at present is of 1,200
metric tonnes per day. It appears from the stand of the State Government that plastic carry bags and disposable items such as dish,
cups, plates, bowls pouches etc. constitute plastic waste much of which in thrown in public drains, open grounds etc. Considering

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Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] eKLR

the object sought to be achieved by the said Act of 2006, the State Government has issued impugned notification. We do not accept
that exercise of power by the State Government by the impugned notification imposes unreasonable restrictions on fundamental
rights under Article 19(1)(g) of the Constitution of India of the manufacturers of plastic items and those businessmen who deal with
storage or sale of the plastic items. Larger public interest has been considered by the State. The adverse impact on environment
affects every citizen. ….. An argument is canvassed across the bar that the plastic industries would suffer. We are considering the
question of reasonableness of restrictions. Possibly, the manufacturers and those who deal with plastic items would suffer in terms
of loss of money but, prima facie we are of the view that by the impugned notification, the State Government has put restrictions
which are reasonable.”

154. We are fully in agreement with this decision. This case confirms that dealing with plastic waste is an issue of the moment the
world over. From the material before us, this is the same state in which the 1st respondent found herself. Although the Maharashtra
Plastic Manufacturers Association decision was on interlocutory application, it is in accord with our findings herein on the issue as
to whether or not the 1st respondent acted unreasonably in issuing the impugned Gazette Notice which we have found not to be the
case.

155. Due to the foregoing, it is our finding that the 1st respondent has power under Sections 3 and 86 of EMCA to ban plastic bags.
We therefore reject the petitioners’ contention that the 1st respondent acted ultra vires the said provisions of EMCA.

Whether the impugned Gazette Notice violated Articles 1 (1), 2(1) & (2), 3(1), 24, 40,43, 46, 70, 73(1), 153(4) (a), 232 (1) (a),
(b), (d) & (e ) and 259(1) & (3) of the Constitution

156. In addition to the other provisions of the Constitution that we have discussed, the petitioners contended that the impugned
Gazette Notice also violated the provisions of Articles 1 (1), 2(1) & (2), 3(1), 24, 40,43, 46, 70, 73(1), 153(4) (a), 232 (1) (a), (b),
(d) & (e ) and 259(1) & (3) of the Constitution. We have already made a finding that the impugned Gazette Notice satisfied the
parameters set out in the Constitution, the Statutory Instruments Act and Fair Administrative Action Act in relation to the exercise
of executive power to enact delegated legislation. We are of the view that the Constitution should be read as a whole and that the
provisions of the Constitution should be interpreted as complementing each other. Having made a finding that the 1st and 3rd

respondents complied with the statutory and constitutional imperatives on delegated legislation, we find no merit in the alleged
violation of Articles 1, 2, 3, 70, 73, 153 and 259. We will however consider the alleged violations of Articles 24, 40, 43 and 46 of
the Constitution.

157. The 1stpetitioner argued that the restriction on its rights was wholly disproportionate and as such did not meet the threshold set
out under Article 24 of the Constitution for limitation of rights and fundamental freedoms. Article 24 of the Constitution allows the
limitation of a right or fundamental freedom in the Bill of Rights by law where that limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom. This has to take into account the nature of the right; the
importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights
and fundamental freedoms by an individual does not prejudice the rights and fundamental freedom of others; and the relation
between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. The 1st petitioner argued
that the plastic bags ban limited its rights to engage in trade.

158. We have discussed above at length the reasonableness and justification for the impugned Gazette Notice. For the reasons we
have given, it is our finding that the limitation of rights imposed through the impugned Gazette Notice is reasonable and justifiable
in a democratic society. In our view, the impugned Gazette Notice met the conditions set out in Article 24 of the Constitution. We
are not satisfied that the said Gazette Notice offended the principle of proportionality.

159. The 3rd Petitioner had also argued that the Gazette Notice infringed the enjoyment of the rights enshrined in Articles 40, 43 and
46 of the Constitution by limiting the enjoyment of those rights without complying with Article 24 of the Constitution. The 3rd

petitioner contended that the impugned Gazette Notice arbitrarily deprived investors in the plastic industry of their rights to property
by shutting down their businesses. With regard to the alleged non-compliance with Article 24 of the Constitution, we reiterate what
we have stated above in respect of a similar allegation by the 1st petitioner.

160. With regard to the alleged violation of the right to property, we are not satisfied that the petitioners’ rights to property were
violated by the 1st respondent through the impugned Gazette Notice. There is no evidence that the respondents deprived the
petitioners of their property. The petitioners did not demonstrate that the plastic industries were shut down due to the ban on plastic

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Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] eKLR

carrier bags as alleged by the 3rd petitioner.

161. The 3rdpetitioner argued further that the ordinary Kenyans’ social and economic rights under Article 43 of the Constitution
were violated. The 3rd petitioner contended that after the plastic ban, traders were selling food items without wrapping or wrapping
it in unhygienic material thereby exposing consumers to the risk of “food borne” diseases. The 3rd petitioner also contended that the
ban of plastic bags had unreasonably increased the cost of living for the ordinary Kenyan due to the fact that alternative packaging is
expensive and has several drawbacks.

162. In our view the fundamental rights under Articles 43 and 46 of the Constitution can be limited under Article 24 of the
Constitution. As we have held above, the limitation of rights imposed by the impugned Gazette Notice was reasonable and
justifiable and as such accords with Article 24 of the Constitution. It follows therefore that although some ordinary Kenyans may
suffer social and economic losses as a result of the ban, the plastic ban is for the common good of the general public and as such
lawful. Secondly, the 3rdpetitioner did not place any evidence before the court in proof of his allegations about the health risks and
the increased cost of packaging associated with the ban on plastic carrier bags. It is therefore our finding that the respondents did not
violate Articles 43 and 46 of the Constitution.

Whether the punishment prescribed under the plastic bags ban is oppressive and unreasonable

163. The three (3) suits before us challenged the Gazette Notice dated 28/2/2017the effect and purport of which was to ban the
manufacture and use of certain types of plastic. The Gazette Notice did not prescribe any penalty. The penalty complained of by the
3rd petitioner is provided for in Section 137 of EMCA and was not imposed by the 1st respondent. The validity of the impugned
Gazette Notice cannot therefore be challenged on account of the alleged unreasonableness of the penalty imposed by Parliament.
We therefore find no merit in this argument.

Whether the impugned Gazette Notice should be annulled and who should bear the cost of the suit

164. In light of our findings above, we decline to annul the Gazette Notice dated 28/2/2017 published on 14/3/217 under Legal
Notice numbers 2334 and 2356. The three suits are dismissed accordingly. Since the suits raised weighty issues of public interest,
we order that each party bears its own costs.

Delivered and Dated at Nairobi this 22nd day of June 2018

S. OKONG’O

PRESIDING JUDGE

K.BOR

JUDGE

B.M.EBOSO

JUDGE

Judgment read in open court in the presence of:

Mr. Amoko & Mr. Dar ………………………..…...for the 1st Petitioner

No appearance……………………………….….....for the 2nd Petitioner

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Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] eKLR

No appearance…………………………………...…for the 3rd Petitioner

Mr. Kamau…………………………………….….for the 1st Respondent

Prof. Mumma & Mr. Wabwoto….…………….…for the 2nd Respondent

Mr. Kamau.………………………….…………....for the 3rd Respondent

Mr. Anyoka…………...………………………….for the 4th Respondent

Catherine/V. Owuor/Halima..……….........…………….Court Assistants

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  • org.apache.tika.parser.DefaultParser
  • org.apache.tika.parser.pdf.PDFParser
  • [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.image.ImageParser]
  • [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.image.ImageParser]


etl_enhance_extract_text_tika_server_time_millis_i:
431

etl_enhance_extract_text_tika_server_b:
1

etl_enhance_pdf_ocr_time_millis_i:
5

etl_enhance_pdf_ocr_b:
1

etl_enhance_detect_language_tika_server_time_millis_i:
48

etl_enhance_detect_language_tika_server_b:
1

etl_enhance_contenttype_group_time_millis_i:
0

etl_enhance_contenttype_group_b:
1

etl_enhance_pst_time_millis_i:
0

etl_enhance_pst_b:
1

etl_enhance_csv_time_millis_i:
0

etl_enhance_csv_b:
1

etl_enhance_extract_hashtags_time_millis_i:
11

etl_enhance_extract_hashtags_b:
1

etl_enhance_warc_time_millis_i:
5

etl_enhance_warc_b:
1

etl_enhance_zip_time_millis_i:
1

etl_enhance_zip_b:
1

etl_clean_title_time_millis_i:
0

etl_clean_title_b:
1

etl_enhance_rdf_annotations_by_http_request_time_millis_i:
26

etl_enhance_rdf_annotations_by_http_request_b:
1

etl_enhance_rdf_time_millis_i:
0

etl_enhance_rdf_b:
1

etl_enhance_regex_time_millis_i:
49

etl_enhance_regex_b:
1

etl_enhance_extract_email_time_millis_i:
55

etl_enhance_extract_email_b:
1

etl_enhance_extract_phone_time_millis_i:
47

etl_enhance_extract_phone_b:
1

etl_enhance_extract_law_time_millis_i:
420

etl_enhance_extract_law_b:
1

etl_export_neo4j_time_millis_i:
379

etl_export_neo4j_b:
1

X-TIKA_content_handler:
  • ToTextContentHandler
  • ToTextContentHandler
  • ToTextContentHandler


X-TIKA_embedded_depth:
  • 0
  • 1
  • 1


X-TIKA_parse_time_millis:
  • 411
  • 50
  • 43


X-TIKA_embedded_resource_path:
  • /image0.png
  • /image1.png





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