Local manufacturers have secured orders barring the National Environment Management Authority (Nema) from enforcing rules that impose new fees and would have seen products of firms that fail to obtain a fresh licence blacklisted.
The Milimani Law Courts on May 7 issued temporary orders that have stalled the rollout of Kenya’s Extended Producer Responsibility (EPR) regulations.
It shields producers from new legal obligations that would have required them to register with Nema, declare monthly packaging volumes, and pay a uniform waste recovery fee.
The order followed the filing of a petition on May 2 by the Law Society of Kenya against Nema challenging the legality of the regulations.
The EPR regulations, which officially came into force on November 4, 2024, were designed to assign full lifecycle responsibility for product waste to producers.
The law was scheduled to take effect on May 4, 2025, following a six-month compliance window. It mandated that all producers join or form Producer Responsibility Organisations (PROs), register with Nema, and take active responsibility for post-consumer waste collection and recycling.
The petitioner argued that the EPR regulations, particularly the fee model, violate several provisions of the Constitution and impose an unjust financial burden on producers, especially small and medium-sized businesses.
At the centre of the legal challenge is the requirement for producers to pay a flat fee of Sh150 per packaging unit introduced into the Kenyan market. The petition characterises this fee as “regressive, irrational, and economically oppressive,” stating that it applies indiscriminately across all product types, regardless of packaging material, size, or market value.
“This blanket approach to taxation lacks proportionality,” the petition reads. “It unfairly punishes low-margin essential goods, such as food, beverages, and household items, while allowing high-value products to absorb the cost with minimal impact.”
Further, the petition also challenges the regulations' legal foundation and procedural fairness. It argues that the EPR framework was enacted without adequate public participation, thereby contravening the constitution, which guarantees inclusive policymaking and public engagement in governance.
A central pillar of the petition is the government's alleged failure to conduct a Regulatory Impact Assessment (RIA), a legal obligation under Section 6 of the Statutory Instruments Act. According to the petitioners, the state has not demonstrated how the Sh150 fee was calculated or assessed for economic viability, particularly in relation to Kenya’s diverse manufacturing landscape.
It also references international best practices to highlight perceived flaws in the Kenyan model. In countries like South Africa and across the European Union, EPR fees are structured according to packaging weight, recyclability, and market risk. These modulated or tiered systems, the petition argues, are better aligned with the “polluter pays” principle and incentivise producers to adopt sustainable packaging. In contrast, Kenya’s flat-rate model is said to “ignore product-specific realities and discourage innovation,” with potential negative consequences for both product quality and safety.
In response to these grievances, Milimani High Court granted an order suspending the implementation of the EPR regulations contained in Legal Notice No. 249 of 2024. The order temporarily halts producer registration requirements with Nema, the mandatory declaration of packaging volumes, the collection of the Sh150 fee, and the threat of penalties or market exclusion for non-compliance.
The court determined that the petition raises “arguable constitutional questions” that merit a full hearing and warned that enforcing the law without resolving these questions could result in “irreparable harm” to affected producers.
Officials at Nema and the Ministry of Environment have defended the regulations, citing Kenya’s escalating waste crisis, particularly in plastics, and the need for a modern, producer-funded waste management model.
