Reprieve as High Court halts implementation of new environment regulations

The High Court has issued conservatory orders halting the implementation of the Sustainable Waste Management (Extended Producer Responsibility – EPR) until further notice, giving importers and manufacturers a reprieve.

Milimani Court Judge Bahati Mwamuye issued an order staying the operation, application and implementation of the regulations until the matter is heard inter-parties.

This follows a petition by members of the private sector who had sought the conservatory orders against the implementation of the new Sustainable Waste Management regulations.

The government, through the Cabinet Secretary for Environment, Climate change and Forestry had introduced the Sustainable Waste Management (Extended Producer Responsibility – EPR) 2024 via Gazette Notice No. 176, introducing new regulations regarding environmental management by producers and importers of various consumer products.

The regulations aim to promote environmentally sound management of products throughout their life cycle by obligating producers to take responsibility for the post-consumer management of the products, thereby operationalizing the “polluter pays” principle.

These regulations apply to all producers, importers and brand owners of products listed in the first schedule and to EPR schemes covering the product category.

In a memorandum issued April 28 th this year, members of Kenya Private Sector Alliance expressed their concerns about the Impact the regulations law will have on the economy as it introduces new costs that are going to be passed to the consumers.

While welcoming the new regulations the affected sector players say certain elements of the current framework, especially registration, licensing and payment processes, may increase the cost of doing business, discourage compliance and Kenya’s competitiveness as a trade and investment hub.

The memorandum was signed by Chief Executives; Caroline Kariuki (Kenya Private Sector Alliance),

Agayo Ogambi (Shippers Council of Eastern Africa), Wycliffe Wanda (Kenya International Freight and Warehousing Association), Ishmael Bett (Association of Kenya Suppliers) and Clement Tulezi (Kenya Flower Council).

They noted, for instance, that an importer in the First Schedule is required to pay Sh 150 per item for every consignment brought into the country.

“Moreover, the Sh 150 flat fee structure does not differentiate between high-risk and low-risk products or between large corporations and SMEs, thus placing a higher financial burden on small businesses and bulk importers,” reads the statement.

Additionally, they noted that producers are also required to register individually with the Revenue Authority by paying a one-off registration fee of Sh 5,000 or 10,000 and an annual renewable license fee of Sh 50,000 for individuals or 100,000 for schemes.

The proposed EPR fees, the dealers maintained, will significantly increase the cost of importation of diapers, detergents, sanitary towels and fabric softeners, ranging from Sh 334,950 to Sh 561,000 for a 40 foot container.

This additional cost, they added, will be passed on to consumers at the risk of making the affected items unaffordable to most low income Kenyans.

The private sector members recommended that the timeline for implementation be extended to between January and July 2026 to allow adequate time for stakeholder consultations, clarification of ambiguities and capacity building for compliance among others.

They also want exemptions to be introduced for humanitarian and non-sale goods which include donations and humanitarian aid.

The players also want structure reforms to develop a sustainable, transparent and fair waste management framework that “protects both the environment and the economy.