A three-judge bench, in its ruling, noted that the “ban is for the common good of the general public and as such lawful”.
The Kenya Association of Manufacturers in a suit, which was consolidated with two others, sued to suspend a government ban on the use, manufacture and importation of polythene bags, noting that the industry with an estimated value of Sh88 billion is at risk of collapse.
Manufacturers of plastic bags have suffered a major blow after the Environment and Land Court dismissed a case they filed against the ban on plastic bags.
The three-judge bench, in its ruling, noted that the “ban is for the common good of the general public and as such lawful”.
The Kenya Association of Manufacturers in a suit, which was consolidated with two others, sued to suspend a government ban on the use, manufacture and importation of polythene bags, noting that the industry with an estimated value of Sh88 billion is at risk of collapse.
They claimed that the ban, issued through a legal notice last year, did not comply with the law and that they are bound to suffer great economic losses because the regulation was effected without adequate consultation with stakeholders.
“In light of our findings above, we decline to annul the Gazette Notice dated 28/2/2017 published on 14/3/217 under Legal Notice numbers 2334 and 2356. The three suits are dismissed accordingly. Since the suits raised weighty issues of public interest, we order that each party bears its own costs,” ruled Justices Samson Okong’o, Antonina Kossy Bor and Benard Eboso
The judges said they are not persuaded that the benefits to be derived from plastic outweigh its negative effects on the environment.
They further noted that contrary to argument by the manufacturers that the ban was unreasonable, the outlawing would work positively to protect the environment from plastic waste.
Environment Cabinet secretary, in a Kenya Gazette notice dated February 28, banned two categories of plastic bags — carrier bags and flat bags.
The notice defines a carrier bag as one that is “constructed with handles, and with or without gussets” while a flat bag is one that is “constructed without handles, and with or without gussets”.
The judges also absolved the minister of any blame for choosing the ban over other proposals that the stakeholders have said were less restrictive, noting that the Cabinet secretary was not at liberty to employ any initiative.
The court rejected the manufacturers’ assertion that the ban had failed in countries such as South Africa and Uganda.
The judges said there are jurisdictions that have successfully banned plastic bags, citing Rwanda as an example.
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