Climate Change Litigation and Governance in Kenya

Introduction

Kenya has, over the past decade, positioned itself as one of the more progressive African jurisdictions in the legal regulation of climate change, anchored by a constitutional guarantee of a clean and healthy environment[1] and a dedicated statutory framework in the form of the Climate Change Act, 2016.[2]

Yet the persistence of disputes before the National Environment Tribunal and the High Court over coal-fired power projects, wind energy installations and extractive activities in ecologically sensitive areas suggests that the existence of a statute, however well-drafted, does not by itself guarantee effective climate governance. This article examines the legal architecture established under the Climate Change Act, 2016, evaluates how courts and tribunals have interpreted climate-related obligations, and critically assesses the gaps between statutory design and practical enforcement.

The article argues that while the Act represents a significant doctrinal advance by embedding climate considerations into sectoral planning and creating institutional accountability mechanisms, its effectiveness is undermined by weak enforcement provisions, fragmented county-level implementation, and the continued subordination of climate concerns to short-term economic interests in environmental impact assessment processes.

The Legal Framework: Constitutional and Statutory Foundations

The 2010 Constitution provides the normative foundation for Kenya’s climate law regime. Article 42 guarantees every person the right to a clean and healthy environment, while Article 69 imposes obligations on the State to, among other things, eliminate processes and activities likely to endanger the environment and to encourage public participation in environmental management.[3] These provisions are operationalised at the framework level by the Environmental Management and Co-ordination Act, which establishes the general principles of environmental governance.[4]

The Climate Change Act, 2016 was the first standalone climate legislation of its kind in East Africa. Section 3 sets out its object as the provision of a regulatory framework for an enhanced response to climate change, and for the mainstreaming of climate change responses into development planning, decision-making and implementation. Section 5 designates the National Climate Change Council, chaired by the President, as the apex policy organ responsible for overseeing the formulation of climate policy.[5]

Of particular significance is section 15, which requires every state organ to prepare and submit climate risk assessments and to integrate climate change considerations into their respective sectoral plans, budgets and projects.[6] Section 16 extends this mainstreaming obligation to county governments, requiring them to develop county climate change action plans aligned with the National Climate Change Action Plan.[7] Section 23 further obligates both national and county governments to establish mechanisms for public participation in climate-related decision-making.[8]

The 2023 amendment to the Act introduced a comprehensive carbon markets framework, establishing a regulatory regime for the registration, validation and trading of carbon credit projects within Kenya.[9] This reform responded to the rapid, and at the time largely unregulated, proliferation of carbon offset projects, particularly in arid and semi-arid rangelands, and sought to ensure that benefit-sharing arrangements with local and indigenous communities met minimum standards of fairness and transparency.

III. Judicial and Tribunal Interpretation

Kenyan courts and the National Environment Tribunal have played a formative role in giving substantive content to the otherwise general obligations contained in the Act and the Constitution. In Save Lamu & 5 others v National Environmental Management Authority (NEMA) & another, the Tribunal revoked the environmental impact assessment licence granted for the construction of a 1,050 megawatt coal-fired power plant at Lamu, finding that the assessment process had failed to adequately consider the cumulative and long-term effects of the project, including its contribution to greenhouse gas emissions and its incompatibility with the character of the proposed site as a UNESCO World Heritage area.[10]

The decision is widely regarded as Kenya’s most consequential climate-related ruling to date. It is notable not for any explicit reliance on the Climate Change Act, which had only recently come into force at the time the licence was first granted, but for its insistence that environmental impact assessments under the Environmental Management and Co-ordination Act must engage meaningfully with climate impacts rather than treating them as a peripheral consideration.

A similar emphasis on procedural rigour is evident in Mui Coal Basin Local Community & 15 others v Permanent Secretary, Ministry of Energy & 17 others [2015] eKLR, where the High Court considered the adequacy of public participation in respect of coal exploration licences in Kitui County.[11] Although the case turned principally on questions of consultation with affected communities rather than on climate change as such, it has been cited in subsequent climate litigation for its articulation of the threshold of meaningful, as opposed to merely formal, public participation that Kenyan law now demands of extractive and energy projects.

In Friends of Lake Turkana Trust v Attorney General & 2 others, the High Court addressed the obligation to conduct a strategic environmental assessment before approval of large-scale hydropower development upstream of Lake Turkana, recognising the trans-boundary and cumulative ecological consequences, including alterations to a fragile lake ecosystem already under stress from changing rainfall patterns.[12]

Taken together, these decisions reveal a judiciary willing to scrutinise the procedural integrity of environmental decision-making but considerably more cautious about engaging directly with the substantive content of the Climate Change Act itself. Few reported decisions have, for instance, tested the section 15 mainstreaming obligation against a specific state organ’s failure to comply, despite anecdotal evidence that compliance with sectoral climate risk assessments remains inconsistent across ministries and counties.

Critical Analysis:

Strengths

The Act’s principal strength lies in its mainstreaming architecture. By requiring climate considerations to be embedded within ordinary sectoral planning, rather than confined to a freestanding environmental ministry, the Act in principle distributes responsibility across the whole of government. The establishment of the National Climate Change Fund under section 24 likewise creates a dedicated financing mechanism intended to channel both public and donor resources toward adaptation and mitigation projects.[13] County-level pilots of complementary climate funds in counties such as Kitui, Garissa, Wajir and Makueni have demonstrated that devolved, community-driven climate financing can be operationally viable, particularly for drought resilience and water infrastructure.[14]

Structural Weaknesses

Notwithstanding these strengths, the Act suffers from at least three significant shortcomings. First, the enforcement provisions are comparatively weak. Section 25 provides for sanctions against public entities that fail to comply with their mainstreaming obligations, yet in practice no state organ appears to have faced material consequences for non-compliance, raising the criticism that the provision functions more as an aspirational statement than as an enforceable duty.[15]

Contrary to that, implementation at the county level remains markedly uneven. While section 16 obligates all forty-seven counties to develop climate change action plans, reviews of county budget implementation have repeatedly noted that allocations to climate-related activities are inconsistently captured, audited or reported, undermining both transparency and the ability of citizens to hold county governments accountable.[16] This unevenness reflects a broader tension within Kenya’s devolved system, in which technical and financial capacity varies considerably between better-resourced counties and those in arid and semi-arid regions that are, paradoxically, often most vulnerable to climate impacts.

Besides, the interface between the Climate Change Act and the environmental impact assessment regime under the Environmental Management and Co-ordination Act remains underdeveloped. As the Save Lamu litigation illustrated, climate impacts have historically been assessed, if at all, as an incidental component of a broader environmental impact statement rather than as a discrete and mandatory head of analysis. Although the Climate Change Act’s mainstreaming provisions could in principle remedy this gap, the absence of detailed subsidiary regulations specifying methodology, thresholds and review standards for climate impact assessment leaves project proponents and regulators with considerable, and arguably excessive, discretion.

Comparative Perspectives

A brief comparative glance is instructive. South Africa’s recently enacted national climate legislation similarly adopts a mainstreaming model, but goes further by establishing sectoral emission targets and a carbon budget system that allocates binding, facility-level emissions allowances to major emitters.[17] Kenya’s framework, by contrast, relies more heavily on aspirational targets contained in its Nationally Determined Contribution submitted under the Paris Agreement[18], which commits the country to a 32 per cent reduction in greenhouse gas emissions relative to a business-as-usual scenario by 2030, with the majority of that reduction contingent on international financial and technical support.[19]

This reliance on conditional, internationally-supported targets, while understandable given Kenya’s comparatively modest historical contribution to global emissions, illustrates a structural vulnerability: domestic legal obligations under the Climate Change Act are not, in most respects, calibrated to specific, judicially enforceable emissions outcomes, but rather to procedural duties of planning, reporting and mainstreaming. This stands in contrast to jurisdictions where courts have been called upon to assess government climate action against quantified, science-based emissions reduction pathways, a development that has not yet meaningfully occurred within Kenyan jurisprudence.

Proposed Reforms

Several reforms would strengthen the practical effectiveness of Kenya’s climate law regime. First, subsidiary regulations should be promulgated under section 6 of the Act to specify a standardised methodology for climate impact assessment, to be integrated formally into the environmental impact assessment process rather than treated as a discretionary add-on.[20]

Contrary to that, Parliament should consider amending section 25 to introduce graduated, judicially enforceable sanctions for non-compliant state organs, potentially modelled on the administrative penalty regimes used in other regulatory contexts, so that the mainstreaming obligation acquires genuine legal teeth rather than remaining largely declaratory.

Additionally, the Office of the Auditor-General and the Commission on Revenue Allocation should be empowered, in cooperation with the Council of Governors, to develop a standardised reporting template for county climate expenditure, enabling consistent tracking of climate-related budget allocations across all forty-seven counties and facilitating genuine public accountability.

Finally, given the significant role that strategic litigation has played in shaping Kenya’s environmental jurisprudence to date, the judiciary and the National Environment Tribunal would benefit from specialised training on climate science and impact methodology, equipping adjudicators to engage more directly with the substantive, rather than purely procedural, dimensions of climate-related disputes.

VII. Conclusion

Kenya’s Climate Change Act, 2016 remains a notable legislative achievement and a model frequently cited within the region. Its mainstreaming approach, institutional architecture and dedicated financing mechanisms reflect a serious attempt to integrate climate considerations into the ordinary business of government rather than relegating them to a peripheral environmental concern. Judicial intervention, particularly in cases such as Save Lamu, has reinforced the procedural rigour expected of environmental decision-making in a manner that complements the Act’s objectives.

Nevertheless, the persistent gap between statutory design and practical enforcement, the unevenness of county-level implementation, and the underdeveloped methodology for assessing climate impacts within project approvals all suggest that Kenya’s climate governance regime has not yet matured from framework legislation into a fully operative system of accountability. Closing this gap will require not new constitutional or statutory rights, which already exist in ample measure, but the harder and less visible work of regulatory detail, institutional capacity-building and consistent enforcement.

Bibliography

Constitution of Kenya 2010.

Climate Change Act 2016 (Act No 11 of 2016).

Climate Change (Amendment) Act 2023 (Act No 4 of 2023).

Environmental Management and Co-ordination Act 1999 (Cap 387).

United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107.

Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS Reg No 54113.

Kenya’s Updated Nationally Determined Contribution (NDC) to the UNFCCC, December 2020.

Republic of South Africa, National Climate Change Response White Paper 2011; Climate Change Act 2024 (Act No 22 of 2024).

Mui Coal Basin Local Community & 15 others v Permanent Secretary, Ministry of Energy & 17 others [2015] eKLR, Constitutional Petition No 305 of 2012 (Consolidated).

Save Lamu & 5 others v National Environmental Management Authority (NEMA) & another [2019] eKLR, Tribunal Appeal No NET 196 of 2016 (26 June 2019).

Friends of Lake Turkana Trust v Attorney General & 2 others [2014] eKLR.

Kenya Vision 2030, Second Medium Term Plan 2013-2017.

[1]Constitution of Kenya 2010, art 42.

[2]Climate Change Act 2016 (Act No 11 of 2016), s 3.

[3]Constitution of Kenya 2010, art 69.

[4]Environmental Management and Co-ordination Act 1999 (Cap 387), s 3.

[5]Climate Change Act 2016, s 5.

[6]Climate Change Act 2016, s 15.

[7]Climate Change Act 2016, s 16, on county climate change planning.

[8]Climate Change Act 2016, s 23.

[9]Climate Change (Amendment) Act 2023 (Act No 4 of 2023), s 23A-23F, introducing the carbon markets framework.

[10] Save Lamu & 5 others v National Environmental Management Authority (NEMA) & another [2019] eKLR, Tribunal Appeal No NET 196 of 2016 (26 June 2019).

[11] Mui Coal Basin Local Community & 15 others v Permanent Secretary, Ministry of Energy & 17 others [2015] eKLR, Constitutional Petition No 305 of 2012 (Consolidated).

[12] Friends of Lake Turkana Trust v Attorney General & 2 others [2014] eKLR.

[13]Climate Change Act 2016, s 24, on the National Climate Change Fund.

[14]County Climate Change Fund framework as piloted in Kitui, Garissa, Wajir and Makueni Counties from 2016 onwards.

[15]Climate Change Act 2016, s 25, on penalties for non-compliance by public entities.

[16]Auditor-General Report on the implementation of the Climate Change Act 2016, cited in various civil society reviews of county climate funds, 2022.

[17]Republic of South Africa, National Climate Change Response White Paper 2011, read together with the Climate Change Act 2024 (Act No 22 of 2024).

[18]Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS Reg No 54113.

[19]Kenya’s Updated Nationally Determined Contribution (NDC) to the UNFCCC, December 2020.

[20]Climate Change Act 2016, s 6, on mainstreaming climate considerations into sectoral functions.