Kenya’s Constitution guarantees every person the right to a clean and healthy environment. Article 42 is deliberately justiciable, empowering citizens to seek judicial protection where environmental harm occurs.
This constitutional design reflects an important truth: environmental damage is rarely accidental, and where institutions fail to act, the courts must step in. Yet the growing reliance on litigation and judicial supervision to address sanitation and environmental failures should concern us. It signals not constitutional strength, but institutional weakness.
Across Kenya’s urban centres, cases relating to polluted rivers, failing sewer systems and contaminated groundwater are increasingly finding their way to court. Judges are being asked to issue supervisory orders, monitor compliance, and, in some instances, oversee remedial action over extended periods.
Judicial supervision has become a necessary corrective mechanism where environmental harm persists despite prior directives. However, courts were never intended to function as long-term managers of public infrastructure. When judicial supervision becomes routine, it is evidence that governance has broken down upstream.
The roots of these disputes lie far from the courtroom. They begin with land-use decisions. Developments are approved without adequate consideration of sanitation capacity, environmental thresholds or cumulative impacts.
As urban densities increase, systems designed for smaller populations are overwhelmed. Sewage is continuous and unforgiving; when systems fail, environmental harm escalates quickly. By the time courts are approached, damage is already visible, and judicial intervention becomes unavoidable.
This dynamic places the Judiciary in a difficult position. On one hand, courts must uphold constitutional rights and prevent ongoing harm. On the other hand, they are drawn into technical and administrative terrain that lies beyond their institutional mandate. Supervisory orders, while necessary, are blunt tools for managing complex systems. They treat symptoms rather than causes and can only partially compensate for failures in planning, coordination and execution.
An emerging and underappreciated dimension of this governance failure is antimicrobial resistance. Poorly managed wastewater is a recognised pathway for the spread of antibiotic-resistant microorganisms. Sewage carries residues from households, healthcare facilities, agriculture and industry.
When treatment systems are inadequate or bypassed, resistant bacteria and genetic material enter rivers and soils. Over time, this accelerates antimicrobial resistance, undermining the effectiveness of essential medicines and creating a long-term public health risk. This is not merely a medical issue; it is an environmental governance challenge with constitutional implications.
As scientific understanding of these links deepens, judicial supervision is likely to extend beyond visible pollution to less tangible but more profound harms. Institutional dysfunction within public bodies compounds these risks. Many utilities and agencies struggle with misalignment between boards and management.
Oversight bodies sometimes drift into operational decision-making, while executives resist scrutiny or delay implementation. These internal governance failures rarely attract public attention until systems fail and litigation follows. By then, courts are asked to resolve disputes whose origins lie in boardrooms. Such misalignment weakens institutional responsiveness.
Environmental harm accumulates quietly, only becoming visible when it reaches a legal threshold. Judicial supervision then becomes a substitute for decisive leadership, a role the Judiciary is ill-suited to play over the long-term.
Mr Kahuha is Managing Director, Githunguri Water and Sanitation Company Limited and PhD Researcher at the Department of Earth & Climate Sciences, University of Nairobi.
