The Role of the Environment and Land Court in Enforcing Environmental Law: a Critical Analysis of the Environmental Caseload

Abstract

The establishment of the Environment and Land Court (ELC) in Kenya is novel. The ELC has dual jurisdiction to hear and determine land and environment matters. Since it was established in the year 2012, there is no published data on the number of environmental matters that have been handled by the court as compared to land. The research carried out by individuals and institutions indicates that the court has handled fewer environmental cases as compared to land cases. Caseload grants a court an opportunity to settle disputes, develop the related law and jurisprudence. Based on this, this study sought to determine the environmental caseload and the jurisprudence emanating from the ELC since it was established. It further sought to determine the factors contributing to environmental caseload in the ELC and to provide recommendations on how to improve the environmental caseload in the court. In order to meet the objectives of the study, both qualitative and quantitative research methods were employed. The research population was the ELC judges, the ELC Deputy Registrars and the Court Users (legal practitioners, environmental civil society representatives, government officials, and the public). Structured questionnaires and interviews were used as a method of data collection. Due to the distribution of the ELC across the counties, the questionnaires were sent via email to all the 33 ELC Judges and the 26 DRs. Only 16 ELC judges, 9 ELC DRs and 19 Court users responded. The findings of this study indicate that indeed, there is no public statistical information from the judiciary or the ELC distinguishing environmental matters from land. However, analysis of the data collected from the field and the NCLR shows that very few environmental matters have been filed in the ELC as compared to land. Despite the fewer environmental matters, the ELC has continued to develop the law and jurisprudence on environmental issues such as environmental xiv rights, locus standi and the application of international environmental law and principles. The Environmental caseload in the ELC is highly attributed to lack of public awareness and recognition of the ELC as the appropriate institution to solve environmental matters; its accessibility; public apathy on environmental issues; limited public interest litigation; lack of knowledge on what constitutes environmental issues; lack of knowledge on constitutional provisions on the environment; court filingfees,amongst others. This study, therefore, recommends the need to enhance public awareness of the ELC’s role in environmental adjudication and the need for a policy direction from the judiciary requiring that environmental matters be distinguished from land matters at the filing stage. The study further recommends for the abolition of court filing fees in environmental matters; fast-tracking of environmental cases; streamlining the jurisdiction of the court, amongst others.