Cabinet Secretary in charge of transport should formulate policy for the provision of public toilets and other sanitation facilities on the country’s road network to give effect to the right to a clean and healthy environment

Adrian Kamotho Njenga v Council of Governors & 3 others [2020] eKLR

Environment and Land Court at Nairobi

ELC Petition 37 of 2017

K Bor, J

January 16, 2020

Reported by Moses Rotich

Constitutional Law – fundamental rights and freedoms – enforcement of the right to a clean and healthy environment – components of the right to a clean and healthy environment – remedies of the breach of the right to a clean and healthy environment – what constituted a clean and healthy environment along the Kenyan road network – Constitution of Kenya, 2010, articles 42 & 70; Environmental Management and Coordination Act No. 8 of 1999, Part VII.

Constitutional Law – devolution – national and county governments – shared functions of national and county governments – role of provision of public sanitation facilities along the Kenyan road network – whether the national or county governments had the obligation to construct and maintain public sanitary facilities along the Kenyan road network – whether an order of mandamus could be  issued to compel the construction and maintenance public sanitation facilities along the Kenyan road network – Constitution of Kenya, 2010, articles 42, 69(1)(g), 70, 186(2), 189 & Fourth Schedule; County Governments Act No. 17 of 2012, sections 103, 104, 105, 106 & 107; Intergovernmental Relations Act No. 2 of 2012, section 5; Kenya Roads Act No. 2 of 2007, section 4, 7 & 22; Urban Areas and Cities Act No. 13 of 2011, section 6(3).

Constitutional Law – devolution – functions of county governments –  role of county governments in provision and maintenance of public sanitary facilities along the Kenyan road network – imposition of fees for the use of public sanitation facilities – whether county governments had a role to play in construction and maintenance of public toilets and other sanitation facilities along the Kenyan road network including roads under the national government – whether the imposition of charges on public sanitation facilities was illegal – Constitution of Kenya, 2010, article 42; County Governments Act No. 17 of 2012, sections 103, 104, 105, 106, 107 & 120.

Words and Phrases – clean – definition – in relation to the environment; containing or producing nothing that is dirty or harmful – Longman Dictionary of Contemporary English.

Words and Phrases – healthy – definition – in relation to persons, animals or plants; physically strong and not likely to become weak or ill – Longman Dictionary of Contemporary English.

Words and Phrases – health – definition – the quality, state or condition of being sound or whole in body, mind or soul especially freedom from pain or sickness; or the relative quality or state of one’s physical or mental wellbeing whether good or bad – Black’s Law Dictionary, 10^th Edition.

Words and Phrases – wellbeing – definition – the feeling of being comfortable, healthy and happy – Longman Dictionary of Contemporary English.

Brief facts

The petition was brought against the Council of Governors (1^st respondent), Kenya National Highways Authority (2^nd respondent), Kenya Rural Roads Authority (3^rd respondent), and Kenya Urban Roads Authority (4^th respondent).

The petitioner sought a declaration that the respondents had breached article 42 of the Constitution of Kenya, 2010 (the Constitution) which entitled every citizen the right to a clean and healthy environment and reasonable standards of sanitation. He also sought a prohibitory order to restrain the respondents, their agents, employees or any person acting on their behalf from charging any fee, or obstructing citizens from accessing or using existing public sanitary facilities or toilets. Further, he sought an order of mandamus to direct the respondents to set up and operate hygienic sanitary facilities including functional public toilets within their lawful jurisdictions and throughout Kenya’s road network.

The petitioner argued that due to the lack of options for proper sanitary facilities, motorists and commuters relieved themselves on the streets, road reserves, adjacent bushes or open spaces causing them to suffer immense biological, metabolical and physiological torture.

The respondents contended that the mandatory orders sought against them were incapable of implementation since the respondents did not play any role in the provision of health and sanitation services. They maintained that they were wrongly sued as the role of provision of water and sanitation was the preserve of county governments.

Issues

1. What was the scope of the right to a clean and healthy environment enshrined in article 42 as read with article 70 of the Constitution?
2. What constituted a clean and healthy environment along the Kenyan road network?
3. Whether the Council of Governors, Kenya National High Ways Authority, Kenya Rural Roads Authority and Kenya Urban Roads Authority had a role to play in the provision of public sanitary facilities along the Kenyan road network.
4. Whether county governments had a role to play in construction and maintenance of public toilets and other sanitation facilities along the Kenyan road network including roads under the national government.
5. Whether the imposition of fees for the use of public sanitation facilities was illegal.
6. Whether the state should be compelled to construct and maintain public sanitary facilities along the Kenyan road network to give effect to the right to a clean and healthy environment under article 42 of the Constitution.

Relevant provisions of the law

Constitution of Kenya, 2010

Article 42

Environment

Every person has the right to a clean and healthy environment, which includes the right—

1. to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and
2. to have obligations relating to the environment fulfilled under Article 70.

Article 70

Enforcement of environmental rights

1. If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.
2. On application under clause (1), the court may make any order, or give any directions, it considers appropriate—

1. to prevent, stop or discontinue any act or omission that is harmful to the environment;
2. to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or
3. to provide compensation for any victim of a violation of the right to a clean and healthy environment.

3. For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.

Held

1. Unlike the other rights in the bill of rights which were guaranteed for enjoyment by individuals during their lifetime, the right to a clean and healthy environment under article 42 of the Constitution was an entitlement of present and future generations and was to be enjoyed by every person with the obligation to conserve and protect the environment. The right had three components; the right itself, the right to have unrestricted access to the courts to seek redress where a person alleged that the right to a clean and healthy environment had been infringed or was threatened; and the right to have the court make any order or give any directions it considered appropriate to either prevent or discontinue the act harmful to the environment, or compel any public officer to take measures to prevent or discontinue the act that was harmful to the environment or award compensation to any victim of a violation of the right to a clean and healthy environment.
2. Clean was defined, in relation to environment, as to contain or produce nothing that was dirty or harmful. Healthy, in relation to persons, animals or plants, meant physically strong and not likely to become weak or ill. Health was the quality, state or condition of being sound or whole in body, mind or soul especially freedom from pain or sickness; or the relative quality or state of one’s physical or mental well-being whether good or bad. Well-being was the feeling of being comfortable, healthy and happy. The Environmental Management and Coordination Act No. 8 of 1999 (EMCA) defined the environment to include physical factors of the surroundings of human beings including land, water, atmosphere, climate; biological factors of animals and plants; and the social factor of aesthetics which included both the natural and healthy environment.
3. A clean and healthy environment for persons using a road would be one that was devoid of dirt or anything harmful which could interfere with the physical or mental wellbeing of persons using the road. From the provisions of Part VIII of the EMCA, some of the factors that were deleterious to the environment included effluents, emissions, waste, toxic and hazardous material, noise, radiation and noxious smells. The Traffic Act 1954  provided that reckless and careless driving, driving under the influence of alcohol, and parking of vehicles carrying explosives or petroleum along the road, use of vehicles that were not in a roadworthy condition were among factors that were likely to infringe on the right to a clean and healthy environment on the roads.
4. Roadside developments should not be unsightly or the road reserves littered with garbage, they should be clean and well planned to give effect to the right to a clean and healthy environment on the public roads. A clean and healthy environment included the physical infrastructure and road aesthetics which behoved the roads authorities to plant trees and suitable vegetation on the road reserves. Where trees were cut down during road construction, they should be replaced once the roads were completed. Article 69 of the Constitution, which enjoined the state to work towards achieving and maintaining a tree cover of at least ten per cent of the land area in Kenya, bound the roads authorities and the county governments.
5. Article 69(1)(g) of the Constitution obligated the state to eliminate processes and activities that were likely to endanger the environment. Such processes included road users relieving themselves in bushes and open spaces along the Kenyan roads. The state needed to provide clean and decent toilets for road users to relieve themselves while on their journeys to give effect to the right to a clean and healthy environment.
6. Article 70 of the Constitution and section 3 of the EMCA empowered any person, who alleged that the right to a clean and healthy environment had been infringed or was threatened, to apply for redress from the court in addition to any other legal remedies available in respect of the matter. Such an applicant was not required to demonstrate that any person had incurred loss or suffered injury. The court could make any order or give any directions it considered appropriate to prevent, stop or discontinue any act or omission that was harmful to the environment and could compel any public officer to take measures to prevent or discontinue any act or omission that was harmful to the environment. The petitioner did not have to demonstrate that any person had suffered injury in the petition.
7. The Fourth Schedule to the Constitution distributed functions between the national and county governments. Transport and communications including road traffic, the construction and operation of national trunk roads and the standards for the construction of and maintenance of other roads by counties was a function of the national government under Part 1 of that Schedule. One of the functions of the county governments under Part 2 of the Fourth Schedule to the Constitution was county health services including refuse removal, refuse dumps and solid waste disposal. County transport including county roads and public road transport also fell under the mandate of the county, as well as county public works and services including water and sanitation services.
8. It was the county governments that were mandated to deal with water, sanitation and solid waste disposal. The broad function of road transport was conferred on both the national and county governments under the Fourth Schedule to the Constitution; and the function therefore fell under the concurrent jurisdiction of each of the two levels of government pursuant to article 186(2) of the Constitution. Article 189 of the Constitution provided the framework of how the national and county governments were to cooperate in the performance of their functions and exercise of their powers. The road authorities and the counties had to cooperate in the performance of their duties.
9.  Under section 4 of the Kenya Roads Act, some of the functions of the 2^nd respondent included constructing, upgrading, rehabilitating and maintaining roads under its control. The 2^nd respondent controlled national roads, road reserves and roadside developments, which were described in that Act as physical structures or facilities on land within or adjoining a road reserve. The 2^nd respondent planned the development, maintenance, and operation of national roads in liaison with the other road authorities. It also prepared the road works programmes for all national roads. Similar mandates were bestowed on the 3^rd respondent by section 7 of the Kenya Roads Act.
10.  Section 22 of the Kenya Roads Act empowered every road authority to provide such amenities or facilities for persons making use of the services or facilities provided by the authority as could appear necessary or desirable to the authority. The amenities and facilities contemplated by that section included toilets and related amenities which ought to be constructed as roadside developments for the use of persons making use of the roads in the country. Additionally, section 22 of the Kenya Roads Act gave the roads authorities power to enter into arrangements with other entities which were likely to promote or secure the provision of any service or facilities which they could separately provide. Based on that, the 2^nd, 3^rd and 4^th respondents could enter into arrangements with the counties through the 1^st respondent for the maintenance of the toilets and other sanitation facilities to be constructed for the benefit of road users. The mandate of the roads authorities included constructing pedestrian walkways and cyclist lanes on the road to give effect to the right to a clean and healthy environment for road users.
11.  Part XI of the County Governments Act dealt with county planning. One of the objectives of county planning under section 103 of that Act was to make reservations for critical national infrastructure and other utilities and services. Section 104 of that Act enjoined a county government to plan for the county for the use of public funds with the planning framework integrating social and environmental planning. The county planning unit was responsible for ensuring linkages between county plans and the national planning framework in accordance with section 105 of the County Governments Act. County plans were to be based on the functions of county governments specified in the Fourth Schedule to the Constitution and on relevant national policies as per section 106 of that Act. The types and purposes of county plans were set out at section 107 of that Act which made the county plans the basis for all budgeting and spending in the county.
12.  Under the Kenya Roads Act, roads were classified as national, rural or urban and were either vested in the national government or the counties. County governments could not construct toilets and other sanitation facilities on the national trunk roads, which were vested in the 2^nd respondent. National roads traversed different counties. For instance, a bus passenger travelling from Mombasa to Busia traversed Mombasa, Taita Taveta, Makueni, Machakos, Nairobi, Kiambu, Nakuru, Kericho, Kisumu, Siaya and Busia counties. It would have been impracticable for the petitioner to sue all the county governments to enforce the right to a clean and healthy environment in respect of all roads in the country.
13.  The Council of Governors comprising the governors of all counties was established by the Intergovernmental Relations Act No. 2 of 2012 to provide a forum for among other functions, consultation amongst the county governments and to consider matters of common interest to county governments. Under section 5 of that Act, the Council of Governors was to facilitate cooperation and consultation between the national and the county governments and amongst county governments as provided in the Constitution. It provided a forum for coordinating governments’ policies, legislation and functions. The Council could establish committees for the better carrying out of its functions. As such, the 1^st respondent was properly sued in the instant petition.
14.  Section 6(3) of the Urban Areas and Cities Act No. 13 of 2011 designated Nairobi as the city to provide infrastructure necessary to sustain among others, the efficient transport network connecting to rural areas, towns and other local, regional and international cities.
15.  Section 120 the County Governments Act No. 17 of 2012 empowered the county government or other agency delivering services in the county to adopt and implement a tariffs and pricing policy for the provision of public services. Based on that provision, the prohibitory order sought by the petitioner to restrain the respondents from charging fees for the use of the existing public sanitary facilities was declined.
16.  Taking into account the budgetary implications of formulating and implementing the policy on the provision of toilets and proper sanitation along the country’s road network, it was impracticable for the respondents to set up and operate functional public toilets within their jurisdiction and throughout the road network in Kenya within 60 days as the petitioner sought.
17.  The Cabinet Secretary in charge of transport was directed to constitute and chair a working group, which would include representatives of all the respondents, to formulate the policy for the provision of toilets and other sanitation facilities on the country’s road network to give effect to the right to a clean and healthy environment on the roads. The national transport policy would incorporate toilets and other sanitation facilities as part of the roadside developments in the road designs for existing and new roads; and designate a sufficient number of such facilities on road stops on the national and international trunk roads. The policy would take into account the need to have the toilets and other sanitation facilities maintained properly by the county governments once constructed. Considering that some roads were vested in the county governments while others were maintained by the national government, the policy would take that into account and the overall objective of guaranteeing every person using the country’s road network reasonable access to decent toilets and sanitation facilities.
18.  The 1^st respondent was ordered to constitute a committee under section 20 of the Intergovernmental Relations Act No. 2 of 2012 which would liaise with the 2^nd, 3^rd and 4^th respondents through the ministry in charge of transport in the formulation and implementation of the policy for the provision of toilets and other sanitation facilities along the Kenyan road network to give effect to articles 42 and 43 of the Constitution on the right to a clean and healthy environment with reasonable standards of sanitation.

Petition partly allowed; each party to bear their own costs.