This week the Court of Appeal handed down a significant decision in the Owino-Uhuru Lead Poisoning Case. The decision is among others significant for narrowing down a Supreme Court precedent requiring exhaustion of alternative remedies in environmental disputes. Higher court precedents are ordinarily binding on law courts, a concept known as stare decisis, the idea being to enhance reliability, predictability, and consistency of precedents. However lower courts can narrow down higher court precedents and, then, depart from them.

Narrowing means “interpreting a precedent not to apply when it is best read to apply.” (Evan Kanz, Changing the NCAA’s “Year-in-Residency” Rule: Narrowing Supreme Court Precedent from Below, (2019) 53 UIC J. Marshall Law Review 1085. Narrowing enables lower courts to “update obsolete precedents, mitigate the harmful consequences of the Court's errors, and enhance the transparency of their decision- making process”. (Richard M Re, Narrowing Supreme Court Precedent from Below (2016) 104 Georgetown Law Journal 104).

In this case, Article 70 of the Kenyan Constitution states:

If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.

Despite this Article the Supreme Court in the River Kibos pollution case held that a party was bound to exhaust out of court remedies before going to court over the pollution. In the Owino-Uhuru case however, the Court of Appeal distinguished and did not follow the Supreme Court precedent. Instead, the Court of Appeal asserted that Article 70 entitles a party to go to court in addition to any other legal remedies under the law.

Accordingly, the Court of Appeal held that in the Owino-Uhuru case held that the Environment and Land Court had the jurisdiction over the dispute claiming violation of the rights to a clean and healthy environment and could grant the remedies sought.

Significantly, the Court of Appeal issued its first ever structural interdict in the case directing the clean up of the Owino-Uhuru ecosystem under judicial supervision.

Overall, the decision expands the space for climate justice litigation in Kenya.