27 June 2018

Kenya: Blow to Traders as Court Upholds Plastic Bags Ban

Photo: Daily Nation
Kenya banned the use of plastic bags on August 28, 2017.

The ban on plastic bags is here to stay, the Environment and Lands Court has ruled.

Judges Samson Okong'o, Antonina Bor and Benard Eboso declined to quash the gazette notice which effected the ban on plastic bags in August last year.

According to the three-judge bench, the government did not violate any rights in imposing the ban and there was no evidence to prove that there was increased cost of packaging or a health risk as a result.

The limitation of rights imposed by the impugned gazette notice was reasonable and justifiable and as such accords with the Constitution," the judges said.

They added: "...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."

While declining to annul the February 28, 2017 gazette notice, the judges noted that it was the Environment Management Coordination Act that prescribed penalties hence the ministry should be absolved from any blame.

The judgment was delivered in a case in which the Kenya Association of Manufacturers, importers, exporters, wholesalers and retailers together with activist Okiya Omtatah had challenged the ban on the use, manufacture as well as importation of certain types of plastic bags used for commercial and household packaging.

In separate suits, they sued the Environment Cabinet Secretary, the National Environment Management Authority (Nema) and the Attorney General.

The judges said the suit entailed a protracted dispute of facts which appeared straight forward on the surface but contained complicated legal issues underneath.

The spirited fight kicked off soon after the environment CS published twice a gazette notice on the ban on usage of plastic bags, manufacturing and importation took effect with at least five cases being filed.

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