Premium
The case testing whether Kenya must answer for climate inaction
Brian Awuonda, head of the Environment and Climate Justice Department at Brian and Brian Advocates, after filing the climate litigation petition on behalf of the five petitioners at Kisumu Environment and Land Court on May, 12, 2023.
What you need to know:
- Among the 46 prayers before the court, the petitioners are asking for climate change to be declared a national disaster, for the court to rule that government inaction constitutes a violation of their constitutional rights and freedoms, and for compensation of Sh1 billion for loss and damage.
Five Kenyans, including a retired judge, have taken the government to court over what they describe as a deliberate failure to act on climate change, even as floods, drought and erratic weather continue to destroy their farms and livelihoods.
Retired Justice Matthew Emukule, Carolyne Mutemi, Denzel Munge, Naom Moraa and Julie Atieno filed their petition at the Kisumu Environment and Land Court on May 12, 2023.
Represented by Brian and Brian Advocates (BBA), they argue that Kenya has sound climate and environmental laws on paper but that the government has consistently failed to put them into practice, leaving ordinary citizens to absorb the consequences.
"Over the last decade, we have faced unprecedented weather conditions and unpredictable rainfall patterns, which have caused loss and damage to our farming activities and production," the petitioners said.
The experiences they describe are varied but speak to a shared crisis. In Busia County, Justice Emukule's farms were battered by an unusually violent hailstorm in November and December 2022, which also froze the soil and wiped out nutrients, gutting his harvests of sorghum, maize, tomatoes, cabbage, beans and palm trees.
In Kitui, persistent rainfall shortage pushed Mutemi to first downsize her farm and then abandon farming altogether in 2022.
In Nakuru, Munge has watched Molo River, which he relies on to irrigate tomatoes, cabbages, kales, onions and capsicums, dry up over the past decade.
And in her county, Moraa's farmland was swamped by heavy flooding in 2023, destroying crops she had counted on for both food and income.
The respondents named in the case are extensive. They include the Attorney General, the National Climate Council chaired by the President, the Director General of the National Environment Management Authority (Nema), the Office of the Deputy President, the Chairperson of the Council of Governors and the ministries responsible for climate change, interior, tourism, energy, water, health, treasury, education and agriculture.
Brian Awuonda, head of the Environment and Climate Justice Department at BBA, told Climate Action that the petitioners are invoking a suite of legal instruments, including the Constitution of Kenya, the Climate Change Act as amended in 2023, the Environmental Management and Coordination Act, the Forest Act and the United Nations Framework Convention on Climate Change (UNFCCC).
"Despite robust laws and policies in Kenya, the government has been complacent in implementing these laws and policies," Awuonda said. "Which is why the petitioners say they are suffering loss and damage."
The policies at issue include the National Adaptation Plan (2015 to 2030) and the National Climate Change Action Plan, which contain specific commitments on climate-smart agriculture, including the use of drought-resilient seed varieties. The plans also call for climate-proofing rural infrastructure such as roads and bridges, and for promoting water harvesting to help farmers manage drought. The petitioners say little of this has materialised in ways that have reached them.
Among the 46 prayers before the court, the petitioners are asking for climate change to be declared a national disaster, for the court to rule that government inaction constitutes a violation of their constitutional rights and freedoms, and for compensation of Sh1 billion for loss and damage.
A case that speaks to a bigger conversation
The lawsuit is arriving at a moment when climate litigation is gaining momentum across Africa, and when the global legal framework around climate accountability is itself being tested.
The International Court of Justice (ICJ) is currently developing an advisory opinion on the obligations of states in relation to climate change, a process that has triggered a series of sensitization discussions among African nations, including a recent gathering in Nairobi. Those discussions underscored that climate change is no longer purely an environmental or development concern. It is increasingly being treated as a question of legal responsibility.
Delegates follow proceedings during the African-led Climate Solutions Conference at the World Agroforestry Centre in Nairobi on April 21, where policymakers, researchers and environmental advocates met to discuss locally driven responses to climate change across the continent.
Dr Abraham Korir, Principal Secretary at the State Department for Foreign Affairs, used the Nairobi meeting to highlight the persistent gap between legislation and enforcement. He pointed to Kenya's plastic control laws as a case in point.
"We have strong environmental laws on paper, including on plastics, but enforcement is the missing link. The ICJ opinion reinforces the need for stricter implementation," he said.
Dr Korir framed Kenya's support for the ICJ advisory process in terms of three national interests: strengthening arguments for increased climate finance, including for adaptation and loss and damage; improving coordination among national climate institutions; and reinforcing Kenya's position in international trade negotiations so that environmental commitments are not quietly eroded.
"Kenya sees climate action not as a choice, but as a legal duty," he said. "The ICJ advisory opinion strengthens the principle that states must be held accountable for their climate commitments."
He also returned to a point that is central to Kenya's position in global negotiations. Africa contributes the least to global emissions yet absorbs some of the worst consequences, from floods and drought to economic disruption.
"Africa is responsible for the smallest share of emissions, yet we bear the heaviest burden of climate change. This imbalance must be corrected through justice, financing and cooperation," he said.
When institutions stall
Prof George Odesa-Outa offered a more cautionary take, pointing to structural problems within Kenya's own climate governance architecture. He noted that the National Climate Change Council, which is meant to coordinate climate policy at the highest level, has been mired in litigation almost since it was established, with court cases regularly triggered by concerns over inclusion and representation, including from indigenous communities and civil society.
"Since its formation, the Council has been under constant legal challenge," he said. "Every time it tries to move forward, someone runs to court, often raising issues of inclusion or representation."
He acknowledged those concerns as legitimate but warned that the cumulative effect of excessive litigation is institutional paralysis and weakened policy implementation.
He also flagged a wider awareness gap, noting that Kenya has not adequately used Article 6 of the UNFCCC or Article 12 of the Paris Agreement, both of which require countries to invest in climate education, public awareness and participation.
"In many counties, beyond basic legislation, there is very little in terms of sustained climate awareness or education," he said.
Judge Phoebe Okowa, who spoke at the Nairobi gathering, explained that the ICJ advisory opinion grew out of a recognition that the political process on climate change had become disconnected from both science and law, particularly around the question of who bears responsibility for climate harm and whether that responsibility is legally binding or merely aspirational.
"The political process is out of touch, and that gap is what brought us to this advisory opinion," she said. She was clear about what the Court's opinion establishes: climate obligations are legal duties under international law, not discretionary commitments that states can choose to honour or ignore.
"What states are being asked to do is not charity, but compliance with legal obligation," she said.
Back in Kisumu, the five petitioners are waiting to see whether a court will reach the same conclusion, and make their government answer for it.
