A High Court Judge in Nakuru has ordered the state to present to Kenyans a contingency plan for prevention, surveillance and control of disasters.
Justice Samuel Mohochi ordered the government to prepare and present its plan on how to handle the situation following a case filed by the Law Society of Kenya (LSK).
In the petition, LSK named the Cabinet Secretaries for Interior, Education, Transport, Environment, the National Disaster Management Authority and the Attorney General as respondents.
The court certified the case urgent and directed that it be heard on a priority basis.
“It is hereby ordered that conservatory order like a structural interdict is hereby issued, compelling the respondents, in their respective ministries, to prepare and present to the court for scrutiny, a contingency plan on prevention, surveillance, control and disaster response systems to avoid further loss of lives and property due to the ongoing flash floods, pending the hearing and determination of this application,” read the order in part.
The court directed that the application be served on the respondents within two days, not later than the close of business on May 6, 2024.
The CSs in the respective ministries were also ordered to file their responses to the petition within three days from the date of service.
LSK in the petition, noted that the country is in a serious climatic crisis because of the heavy rainfall being experienced for more than a month now.
Bosire Bonyi, on behalf of LSK, noted that according to the Kenya Meteorological Department, heavy rainfall is likely to continue in some parts of the Highlands East and West of the Rift Valley, the Lake Victoria Basin, the Rift Valley, the South-eastern lowlands, the Coast, North-western and North-eastern Kenya.
He said flooding is expected in low-lying areas, plains, and urban areas with poor drainage. Landslides, he said, may also occur on steep slopes where soils become saturated.
The application and petition, Bosire said, concerns the right to life, property, and housing as guaranteed in the Constitution and ought to be heard and determined within a few days.
He told the court that if the petition is not expedited, the government will continue with its ‘do nothing’ approach and make knee-jerk reactions to the crisis to the detriment of the people.
Bosire argued that the government has failed to put in place a contingency plan for prevention, surveillance, control and response systems to the heavy rainfall, flooding and mudslides currently being experienced in Kenya.
He claimed that the Interior CS has failed to disseminate public information on risks, prevention, response or control and mitigation of floods, mudslides and other related effects of heavy downpours.
“The respondents have also failed to provide any emergency contacts or other media for the public to seek, access, share or supply information concerning the heavy downpour currently experienced,” he stated.
The suit, Bosire said, was triggered by several media reports of persons who have died due to the ongoing floods.
He noted that several public amenities such as roads, schools, and hospitals have been rendered unfit for use and or habitation, and the government has not issued a concrete contingency plan to avert the continued suffering of the Kenyans, loss of lives and property.
Bosire argued that the government's failure to prepare or enforce a functional disaster management and emergency contingency plan to control, prevent, and manage the adverse effects of the experienced floods, is a threat to the right to life under Article 26 of the Constitution.
“To the extent that over 24,484 households comprising of approximately 185,297 persons have been internally displaced and are in dire need of both essential and non-essential food items is a breach of their constitutional right to human dignity under Article 28 as read to together with their right to housing and reasonable standards of sanitation, right to health, right to be free from hunger among other rights as espoused under Article 43 of the Constitution,” he said.
He wants the court to issue a declaration that the government’s actions and omissions on current flash floods is a violation of Articles 26, 35, 40 and 43 of the Constitution.
Bosire also wants the court to issue a mandatory injunction in the form of a structural interdict compelling the respondents, in their respective ministries, to prepare and present to the court for scrutiny, a contingency plan on prevention, surveillance, control and disaster response systems to avoid further loss of lives and property due to flash floods.
LSK also wants the court to issue a declaration that the respondents’ actions and omissions on the ongoing floods are a violation of Article 73 of the Constitution, rendering them unfit to hold public office.
