Nairobi County sues National Government over waste collection roles

Garbage collection in Nairobi at Marikiti in Nairobi. [Benard Orwongo,Standard]

A row over the management of garbage collection between the National Government and Nairobi County has spilled into court.

The governor, Johnson Sakaja-led County has sued the Attorney General, National Environment Management Authority (NEMA), Ministry of Environment, Climate Change and Forestry, the National Assembly and the Senate, claiming encroachment on its role in cleaning, licensing and enforcement of environmental conservation.

The county stated that it is aggrieved by Sections 8(1) (c ), 26 (1), 27 (1) and 30 of the Sustainable Waste Management Act No. 31 of 2022.

The county’s lawyer, Faith Wanjala, argued that the contested parts of the law give NEMA authority, including garbage removal, management of garbage sites and solid waste disposal.

“The impugned provisions are presently part of the operative statutory framework governing waste management. Unless the matter is considered expeditiously, there is a continuing risk of the Petitioner and other actors within Nairobi City County being subjected to overlapping, duplicative or potentially conflicting regulation.”

“The petitioner has demonstrated that the overlap is not merely theoretical. The National Environment Management Authority exercises statutory regulatory and licensing powers in relation to waste-management activities, including waste transportation and disposal,” argued Wanjala.

On February 17 , Sakaja and President William Ruto signed the National-County Cooperation Agreement. According to the Sh80 billion multi-sector deal signed at State House, Nairobi, Sh 4 billion was allocated for waste

But the county administration now says the law recognizes the role of county governments in devolved waste management functions while NEMA ought to carry out regulatory and enforcement roles.

Nevertheless, the lawyer further said, Sections 8(1) (c ), 26 (1), and 27 (1) give NEMA more roles which are similar to those done by the county.

Nairobi County’s Principal Health Public Officer James Mwita claimed that the county’s mandate includes segregation, collection, transport,  treatment, disposal, and management of waste streams.

He added that NEMA issues licenses for, among others, transport of waste and operation of waste-disposal sites.

However, he argued that the law is still unclear on the roles and demarcation of functions between NEMA and County Government.

“The concern of the petitioner is the extent to which the regulatory, monitoring, investigation and enforcement powers under the Sustainable Waste Management Act may be exercised in a manner that assumes or displaces operational functions constitutionally assigned to County Governments,” said Mwita.

He said that on October 21, 2021, the defunct Nairobi Metropolitan Service raised concerns about the contested parts of the law with Parliament. “This included concerns touching on the allocation and exercise of waste management functions,” he said, adding that he raised the same issue with the Attorney General.

“The Attorney General responded by letter dated November 8, 2024 and while the advice recognized the role of the county governments and the need for co-operation between the two levels of government, it did not, in the petitioner’s view resolve the question concerning the extent to which the powers under Sections 26 (1) and 27 (1) may be constitutionally exercised over devolved county waste management functions,” he continued.

In the letter,  the AG stated that the amendments to the law were to ensure reduction of air, land, fresh water and marine pollution.

The AG added that the Act had outlined areas where the counties and National Government would consult and collaborate with each other.

The government legal advisor cited countries such as South Africa and Canada that have a system almost similar to Kenya’s, adding that counties cannot rule out the National Government in waste management.

“In light of the foregoing, we are of the view that the National Government has a role in waste management when international treaties that Kenya has ratified place obligations on States to ensure protection of human health, and the environment from dangerous and hazardous waste. In addition, the Constitution of Kenya has guaranteed every person the right to a clean and healthy environment,” said Dorcas Oduor, adding that it is required to eliminate the processes and activities that are likely to endanger the environment.

The county wants the court to block the National Government from enforcing Sections 8(1) (c ), 26 (1), and 27 (1). At the same time, it wants the court to also block NEMA officials from supervising or controlling waste management in a way that crosses over the county’s functions.

“The prejudice to the petitioner is therefore not merely financial but concerns the functions constitutionally assigned to the County Government and the institutional integrity of the devolved government,” stated Mwita.