Nairobi Governor Johnson Sakaja.
Nairobi City County Government has moved to court to challenge provisions of the Sustainable Waste Management Act, 2022, arguing that they give the environment regulator powers that overlap with functions constitutionally assigned to county governments.
The county is challenging Sections 8(1)(c), 26(1), 27(1) and 30 of the Act, which it says allow the National Environment Management Authority (NEMA) to encroach on its mandate over garbage collection, waste transportation, management of disposal sites and solid waste disposal.
In court filings, the county argues that the contested provisions create uncertainty over the division of responsibilities between the two levels of government, potentially exposing waste management activities to overlapping or conflicting regulation.
“The impugned provisions are presently part of the operative statutory framework governing waste management. Unless the matter is considered expeditiously, there is a continuing risk of the petitioner and other actors within Nairobi City County being subjected to overlapping, duplicative or potentially conflicting regulation,” the county stated.
Nairobi City County Governor Johnson Sakaja when he appeared before the Senate’s County Public Investments Committee at Bunge Tower in Nairobi on July 21, 2025.
The county has sued the Attorney General, NEMA, the Ministry of Environment, Climate Change and Forestry and Parliament, seeking to clarify the extent of the national government’s regulatory powers over waste management functions assigned to counties.
The county government argues that the law recognises the role of devolved units in waste management, while NEMA is expected to focus on environmental regulation and enforcement.
However, it contends that some provisions of the Act grant the authority powers that overlap with those exercised by county governments, particularly in licensing, monitoring and enforcement.
“The petitioner has demonstrated that the overlap is not merely theoretical. The National Environment Management Authority exercises statutory regulatory and licensing powers in relation to waste-management activities, including waste transportation and disposal,” the county stated.
Nairobi County Principal Health Public Officer James Mwita said in an affidavit that the county’s mandate covers the segregation, collection, transportation, treatment, disposal and management of different waste streams.
A herd of cattle feeding beside a burning pile of garbage at Mukuru Kayaba slums, Nairobi, on March 22, 2020.
He noted that NEMA, meanwhile, issues licences for activities including waste transportation and the operation of waste disposal sites, raising concerns about the extent to which the authority’s powers overlap with those of the county.
Mr Mwita argued that the law does not clearly define the boundaries between NEMA’s regulatory responsibilities and the county’s operational functions.
“The concern of the petitioner is the extent to which the regulatory, monitoring, investigation and enforcement powers under the Sustainable Waste Management Act may be exercised in a manner that assumes or displaces operational functions constitutionally assigned to County Governments,” he said.
The county said the dispute over the division of responsibilities dates back to the tenure of the now-defunct Nairobi Metropolitan Services (NMS), which raised concerns about the contested provisions with Parliament on October 21, 2021.
“This included concerns touching on the allocation and exercise of waste management functions,” Mwita said.
He added that he had also raised the matter with the Attorney General.
According to Mwita, the Attorney General responded in a letter dated November 8, 2024.
He said while the advice acknowledged the role of county governments and the need for cooperation between the two levels of government, the county maintains that it did not resolve the constitutional questions surrounding NEMA’s powers.
In the letter, the Attorney General said the amendments to the law were intended to reduce pollution affecting the air, land, freshwater and marine environments.
The government’s chief legal adviser also maintained that the Act provides for consultation and collaboration between county governments and the national government in carrying out their respective responsibilities.
Citing South Africa and Canada as countries with governance systems comparable to Kenya’s, the Attorney General argued that county governments could not exclude the national government from waste management matters, particularly where national and international environmental obligations were involved.
“In light of the foregoing, we are of the view that the National Government has a role in waste management when international treaties that Kenya has ratified place obligations on States to ensure protection of human health and the environment from dangerous and hazardous waste. In addition, the Constitution of Kenya has guaranteed every person the right to a clean and healthy environment,” Attorney General Dorcas Oduor said.
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She added that the national government was required to eliminate processes and activities likely to endanger the environment.
Nairobi County now wants the court to stop the national government from enforcing Sections 8(1)(c), 26(1) and 27(1) of the Act.
It is also seeking orders barring NEMA officials from supervising or controlling waste management activities in ways that encroach on functions assigned to the county.
The county maintains that the dispute goes beyond administrative or financial concerns, arguing that it touches on the constitutional division of responsibilities between the two levels of government.
“The prejudice to the petitioner is therefore not merely financial but concerns the functions constitutionally assigned to the County Government and the institutional integrity of the devolved government,” Mwita stated.
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