https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4365

Retail Trade Association of Kenya (RETRAK) v National Environmental Management Authority (NEMA) & another (Environment and Land Petition E023 of 2026) [2026] KEELC 4365 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEELC 4365 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Petition E023 of 2026 CC Oluoch, J July 14, 2026 Between Retail Trade Association of Kenya (RETRAK) Applicant and The National Environmental Management Authority (NEMA) 1st Respondent The Attorney General 2nd Respondent Ruling Introduction 1.The Applicant herein, the Retail Trade Association of Kenya (hereinafter referred to as “RETRAK” or “the Applicant”), seeks the intervention of this Court to halt the implementation and enforcement of directives issued by the 1st Respondent, the National Environment Management Authority (hereinafter referred to as “NEMA” or “the 1st Respondent”). The 2nd Respondent, the Honourable Attorney General, is sued in their official capacity as the principal legal advisor to the National Government, pursuant to the Constitution of Kenya and the Office of the Attorney General Act. 2.Concurrent with the filing of the Petition, the Applicant filed the Notice of Motion Application dated 19th June 2026. The Application is brought under a Certificate of Urgency and is anchored in Articles 2(4), 10, 22(1), 23, 24, 40, 47, 50, and 258 of the Constitution of Kenya, 2010, Section 13 of the Environment and Land Court Act (No. 19 of 2011), and Section 9 of the Environmental Management and Co-ordination Act (EMCA). The Applicant seeks the following prayers:i)Pending the hearing and determination of the suit herein, an interlocutory injunction is issued, restraining the 1st Respondent, its agents, servants, enforcement officers, or armed security personnel from conducting administrative raids, closing stores, seizing inventory, arresting, or initiating criminal prosecutions against the Petitioner’s members for plastic packaging violations arising from primary manufacturers and suppliers of the products in their stores.ii)Pending the hearing and determination of this Application and/or the Petition, a conservatory order be and is hereby issued restraining the 1st Respondent, its agents, servants, enforcement officers or any persons acting under its authority from requiring the Petitioner’s members to perform the 1st Respondent’s producer-registration, PRO-registration, EPR-payment, plastic-packaging licensing, inspection, verification or enforcement functions as a condition for receiving, warehousing, displaying or selling sealed third-party consumer goods.iii)Pending the hearing and determination of this Application and/or the Petition, the 1st Respondent be directed to publish, produce and maintain a complete, current, accessible and searchable register of compliant producers, registered Producer Responsibility Organisations, plastic-packaging licence holders and any applicable EPR-payment clearance mechanism before undertaking any downstream enforcement against the Petitioner’s members. iv) The costs of this Application be provided for. 3.Upon the filing of the Application under a Certificate of Urgency on 19th June 2026, the Court assessed the urgency of the matter and directed that the Application be served on the 1st and 2nd Respondents for an inter partes hearing. An affidavit of service, duly filed, confirms that the Respondents were served with the pleadings, the Notice of Motion, and the Hearing Notice. 4.The 1st and 2nd Respondents did not enter an appearance or file responses to the application. However, it remains a cardinal principle of our adversarial legal system that the mere failure of a respondent to oppose an application does not automatically entitle an applicant to the orders sought. The Court must independently satisfy itself that the legal thresholds for the grant of the equitable and constitutional remedies sought have been met, irrespective of the Respondents’ silence. Summary of the Application 5.Wambui Mbarire, the Chief Executive Officer of the Applicant, swore an affidavit on 19th June 2026 stating that the Applicant is the umbrella body representing formal retail traders, supermarkets, and convenience stores in Kenya. It oversees a wide downstream distribution network, that employs more than 250,000 workers nationwide. The Applicant described retail trade as a strict “pass-through” model, in which consumer products arrive already sealed from brand owners and manufacturers. The Applicant averred that, under Section 4 of the Food, Drugs and Chemical Substances Act (Cap 254), retailers are legally prohibited from breaking factory seals, altering packaging, or changing the physical presentation of goods before sale. 6.The Applicant explained that formal retailers are not involved in designing, manufacturing, importing, selecting, or certifying the plastic packaging materials used by upstream producers. Their role is limited to receiving, storing, displaying, and selling sealed consumer products supplied through established distribution channels. Additionally, the Applicant stated that retail receiving clerks do not have the authority of environmental inspectors, lack laboratory testing capabilities, do not access NEMA’s internal compliance databases, and have no legal authority to certify whether a primary producer has met Producer Responsibility Organisation (PRO) registration, plastic-packaging licensing, or monthly Extended Producer Responsibility (EPR) payment requirements. 7.According to the Applicant, the dispute dates back to late 2025, when the 1st Respondent began operationalising and enforcing plastic packaging compliance under the new EPR Regulations. Recognising the potential for supply chain disruptions, the Applicant wrote to the 1st Respondent on 2nd December 2025 (Exhibit “WM-1”), seeking clear administrative guidelines on specific compliance expectations, requesting a transition grace period to conduct stock assessments, and seeking clarification on where liability lies when non-compliant products originate with upstream manufacturers but are found on retail shelves. 8.In response, on 21st January 2026, the 1st Respondent issued a statutory directive, NEMA/5/39/VOL V (122) (Exhibit “WM-2”), which required retail outlets to enforce a four-point compliance checklist for upstream producers before stocking any items. Specifically, retailers were required to demand and verify: a NEMA Producer Registration Certificate; a NEMA Licence for Plastics Packaging Materials; a Registration Certificate from a Producer Responsibility Organisation (PRO); and the latest clearance from the PRO. 9.The Applicant contends that the practical effect of this directive was to convert private retail delivery bays into first-line compliance checkpoints for public regulatory obligations. However, within the same directive, the 1st Respondent acknowledged the difficulty of this task and undertook to publish a master register of compliant manufacturers. 10.Following this directive, the Applicant replied on 26th January 2026 (Exhibit “WM-3”), requesting the immediate release of the promised master list of compliant suppliers and producers, emphasising that without it, retail receiving bays could not accurately audit incoming stock. On 28th January 2026, the 1st Respondent acknowledged the request, confirming that a master list was being finalised and would be dispatched shortly (Exhibit “WM-4”). 11.Despite these assurances, the 1st Respondent failed to provide the compliance tracking tools. Instead, it intensified regulatory pressure by issuing another directive on 3rd February 2026 (Exhibit “WM-5”), warning that any retailer displaying goods from unverified producers after the transition window would face immediate prosecution under Regulation 21(3) of the EPR Regulations 2024. The Applicant deposed that this action exposed its members to severe criminal liability for producer-compliance information they neither generated nor controlled, and, critically, could not independently verify against any official state database. 12.On 9th March 2026, the 1st Respondent issued a notice (Exhibit “WM-6”) setting a final compliance deadline of 31st May 2026 and warning that no further extensions would be granted. The Applicant avers that throughout March, April, and May 2026, it engaged urgently with both the 1st Respondent and upstream associations, including the Kenya Association of Manufacturers (KAM), to raise the alarm about structurally low upstream compliance (Exhibits “WM-7” and “WM-8”). On 20th May 2026, eleven days before the deadline, the Applicant sent a final written demand to the 1st Respondent for the master list of registered producers (Exhibit “WM-9”). This plea went unanswered. 13.The Applicants argued that upstream producer compliance falls below the 5% threshold, prompting primary manufacturers and suppliers to freeze freight shipments to avoid statutory penalties. The Applicant deposed that this supply freeze is causing the formal retail sector to lose Kshs. 500,000,000 in unearned sales every 24 hours, disrupting transport schedules and spoiling fresh inventory. The Applicant annexed internal commercial impact reports from its largest members, including Quickmart Ltd, Naivas Limited and Carrefour (Majid Al Futtaim). The Applicant averred that, despite the 1st Respondent’s failure to provide the necessary regulatory infrastructure, NEMA’s field units are threatening retailers with store closures, asset seizures, and criminal fines of up to Kshs. 4 Million under Section 144 of EMCA. The Applicant argued that this enforcement model unlawfully subdelegates a nondelegable statutory policing function to private actors, subverts the “polluter-pays principle” enshrined in Section 3(5)(b) of EMCA, and poses an existential threat to the retail sector. 14.Against this backdrop, the Applicant seeks the grant of an interlocutory injunction and a conservatory order pending the hearing and determination of the Constitutional Petition. Analysis and Determination 15.I have carefully considered the application, the supporting affidavit, and the annexed documents. I identify the following issues for determination:a.Whether the Application meets the well-established threshold for the grant of interlocutory injunctions.b.Whether the Applicant has established a case for the grant of conservatory orders.c.Who bears the costs of the application? Principles Governing the Grant of Interlocutory Injunctions 16.The equitable remedy of an interlocutory injunction is a discretionary remedy exercised by the Court, primarily to preserve the subject matter of a dispute and maintain the status quo pending the final determination of the parties’ rights at trial. The jurisprudence governing the grant of interlocutory injunctions is grounded in the tripartite test laid down in Giella v Cassman Brown & Co Ltd [1973] EA 358. An applicant seeking an interlocutory injunction must satisfy the following three sequential conditions:a.First, the applicant must show a prima facie case with a probability of success.b.Second, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury that would not be adequately compensated by an award of damages.c.Third, if the Court is in doubt, it will decide the case on the balance of convenience. 17.This tripartite test has been reaffirmed and expanded in numerous subsequent decisions of the superior courts. Notably, in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, the Court of Appeal clarified how these principles apply, holding that:“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to: (a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.” 18.Guided by these immutable legal principles, the Court must carefully assess whether the Applicant has, on the basis of the uncontroverted evidence presented, successively overcome the three distinct hurdles. 19.The first hurdle requires the Applicant to establish a prima facie case showing a probability of success. The Court of Appeal answered what exactly constitutes a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd [2003] eKLR, where the Court stated:“... in civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 20.The question that arises in this application is whether the Applicant has presented material showing that the Applicant has a legal right that has apparently been infringed, thereby calling for a rebuttal from NEMA. The Applicant has demonstrated that its members possess a constitutional right to engage in lawful trade, the right to the protection of their property under Article 40, and an inherent right to fair, lawful, and reasonable administrative action under Article 47. 21.The documentary evidence, specifically the NEMA directives dated 21st January 2026 and 3rd February 2026, unequivocally requires retail outlets to obtain statutory licences and PRO payment clearances from primary producers before placing items on the market. Without making conclusive findings on this point, the Court finds that, by requiring downstream retailers to police compliance with plastic packaging rules for packaging they neither manufacture, import, nor control, the 1st Respondent appears to have delegated its mandate under Section 9 of EMCA. Given that the Respondents have elected not to file any rebuttal to these grave averments, the Court, properly directing itself, concludes that the Applicant has surmounted the first hurdle by establishing a compelling prima facie case. 22.The second distinct hurdle is demonstrating irreparable injury. The jurisprudence on this limb was elegantly summarised in Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR, where the Court explained the concept as follows:“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” 23.The Applicant has deposed that, as a direct consequence of the 1st Respondent’s directives and the expiry of the 31st May 2026 deadline, the retail sector is currently losing over Kshs. 500,000,000 every 24 hours due to unearned sales and spoiled inventory. However, the injury demonstrated by the Applicant extends far beyond mere quantifiable financial loss, which could ordinarily be remedied by an award of damages. The Applicant avers that the supply chain freeze threatens the structural and operational integrity of the formal retail sector, endangering the livelihoods and jobs of over 250,000 workers. 24.Additionally, it is averred that the Applicant’s members face an imminent threat of criminal prosecution, targeted administrative raids, and arbitrary closure of their stores by the 1st Respondent’s enforcement units. The resulting operational paralysis may not be adequately compensated by any future award of damages. Accordingly, the Court is fully satisfied that the Applicant has overcome the second hurdle. 25.Having satisfied the first two conditions, the need for a strict evaluation of the balance of convenience diminishes. However, if the Court is in doubt, it must turn to the balance of convenience. The balance of convenience overwhelmingly favours the Applicant in this matter. In Pius Kipchirchir Kogo v Frank Kimeli Tenai (supra), the Court elucidated this principle, stating:“The court should issue an injunction where the balance of convenience is in favor of the plaintiff and not where the balance is in favor of the opposite party. The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed…. In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.” 26.Applying the “comparative mischief” test, the Court observes the following: If the interlocutory injunction is granted, the 1st Respondent is merely restrained from using downstream retailers as its enforcement agents. The 1st Respondent remains entirely at liberty to pursue, investigate, and prosecute the primary upstream manufacturers, importers, and producers who are failing to comply with the EPR Regulations. The 1st Respondent suffers no prejudice whatsoever, as its statutory mandate remains intact pending a determination on the merits of the dispute. 27.Conversely, if the injunction is withheld, the Applicant's members face immediate commercial collapse, structural job losses, spoilage of essential consumer goods, supply-chain paralysis, and exposure to severe criminal sanctions for matters entirely outside their legal control. The inconvenience and mischief to the Applicant are existential. Therefore, the balance of convenience favours granting the injunctive relief. Principles Governing the Grant of Conservatory Orders 28.The Applicant’s central grievance is that, under the directives dated 21st January 2026, 3rd February 2026, and 9th March 2026, the 1st Respondent has effectively outsourced and sub-delegated its statutory verification, inspection, and enforcement duties to private supermarket clerks and retail receiving teams. NEMA is demanding that private businesses enforce compliance with other private businesses, threatening criminal sanctions if they fail. This alleged sub-delegation of public regulatory power must be subjected to intense scrutiny under Article 47 of the Constitution of Kenya, which guarantees the right to fair administrative action.“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” 29.The Applicant has demonstrated, at this prima facie stage, that requiring private retail employees to evaluate and verify complex NEMA Producer Registration Certificates, Plastic Packaging Licences, and monthly PRO payment clearances, particularly without access to a centralised, searchable official NEMA database, is unreasonable and therefore offends the principles of Article 47. 30.Additionally, the alleged closure of retail stores, the halting of distribution, and the seizure of inventory as a punitive measure against downstream retailers infringe Article 40 of the Constitution, which safeguards the sacrosanct right to property. Article 40(1) provides:“Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property- (a) of any description; and (b) in any part of Kenya.” 31.Article 40(2) further prohibits the State from arbitrarily depriving a person of any property. Warehoused goods, commercial inventory, and the economic goodwill of a retail business constitute property within the meaning of Article 40. 32.The Court also notes the Applicant’s reliance on Article 10 of the Constitution. Article 10 binds all State organs, State officers, and public officers whenever they apply or interpret the Constitution, enact or apply any law, or make or implement public policy decisions. Article 10(2) sets out the national values and principles of governance, including patriotism, the rule of law, democracy, human dignity, equity, social justice, inclusiveness, good governance, integrity, transparency, accountability, and sustainable development. 33.The Applicant now seeks conservatory orders suspending the implementation of the impugned administrative directives pending the hearing of the Petition. It is well settled in Kenyan jurisprudence that conservatory orders have a public-law character distinct from private-law injunctions. As articulated in the Supreme Court decision of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR (and cited comparatively in Kibagendi & 3 others v Commission for University Education & 7 others [2025] KEHC 4578 (KLR):“Conservatory orders’ bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as ‘the prospects of irreparable harm’ occurring during the pendency of a case; or ‘high probability of success’ in the applicant's case for orders of stay.” 34.Having found that a strong prima facie case exists, the Court must consider the public interest dimension. The Applicant’s argument is that the formal retail sector is a critical distribution channel for essential household goods for the Kenyan public. The Applicant further averred that the 1st Respondent’s directives have led upstream suppliers to halt product distribution. Granting the conservatory orders will facilitate the orderly functioning of both the regulatory agencies (by compelling them to focus their resources on the actual producers at the source of the packaging) and the retail sector, as the Courts obtain more details on the impasse during the hearing of the Petition, thereby preserving the substratum of the Petition and serving the broader public interest. Disposition 35.In sum, the Court finds the Notice of Motion Application dated 19th June 2026 merited and grants the following orders pending the hearing and determination of the Petition:i.An interlocutory injunction restraining the 1st Respondent, its agents, servants, enforcement officers, or armed security personnel from conducting administrative raids, closing stores, seizing inventory, arresting, or initiating criminal prosecutions against the Petitioner’s members for plastic packaging violations arising from primary manufacturers and suppliers of the products sold in their stores.ii.A conservatory order restraining the 1st Respondent, its agents, servants, enforcement officers, or any persons acting under its authority from requiring the Petitioner’s members to perform producer-registration, PRO-registration, EPR-payment, plastic-packaging licensing, inspection, verification, or enforcement functions as a condition of receiving, warehousing, displaying, or selling sealed third-party consumer goods.iii.The costs of this Application shall abide the outcome of the Petition. DELIVERED VIRTUALLY, SIGNED AND DATED THIS 14TH DAY OF JULY 2026.C.C. OLUOCHJUDGEIn the presence of:Mr Adier for the Petitioner/ApplicantFaith Court Assistant