Public Interest Litigation

Public-interest litigation (PIL) is a form of legal action brought not for the private benefit of the individual petitioner but for the benefit of a wider group, a community, or the public at large. In Kenya, PIL has become a powerful tool for social change and for the enforcement of public rights, enabled by the 2010 Constitution's expansive provisions on access to justice, the removal of strict locus standi requirements, and the recognition of public interest as a legitimate basis for litigation. PIL is used to challenge unconstitutional laws, to compel the state to fulfil its constitutional obligations, to protect the environment and public resources, and to hold public bodies accountable for their actions.

This area covers the full range of PIL matters. Advocates act for civil society organisations, community groups, professional bodies, and concerned individuals in cases that raise issues of public importance. Advocates identify the legal issue, assess the prospects of success, develop the litigation strategy, and prepare and file the proceedings — whether as a constitutional petition under Article 22, a judicial review application under the Fair Administrative Action Act, or a plaint in ordinary civil proceedings.

Advocates handle PIL cases across a wide range of subject areas. Advocates act in cases challenging the allocation and management of public land — including the recovery of illegally allocated public land, the protection of public forests and riparian reserves, and the challenge of unlawful allocations by the National Land Commission. Advocates act in cases challenging the misuse of public funds — including the challenge of unlawful expenditure by national and county governments, the challenge of questionable procurement decisions, and the enforcement of the Auditor-General's recommendations.

Advocates act in cases involving the protection of the environment — including challenges to projects that have been approved without proper environmental impact assessments, challenges to the degradation of protected areas, and the enforcement of the right to a clean and healthy environment under Article 42 of the Constitution. Advocates work with environmental organisations and affected communities to develop cases that have both legal merit and practical impact.

Advocates act in cases involving the rights of marginalised and vulnerable groups — including the rights of indigenous communities to their ancestral lands, the rights of persons with disabilities to accessibility and reasonable accommodation, the rights of women to equality and non-discrimination, and the rights of children to protection and education. The aim is using the law as a tool for the protection of those who are least able to protect themselves.

Advocates handle the procedural aspects of PIL — including the representation of groups of petitioners, the use of expert evidence to establish the public interest, and the management of cases that attract significant media and public attention. The work also covers the conduct of PIL proceedings before the High Court, the Court of Appeal, and the Supreme Court, and advocates take account of the unique dynamics of litigation that has implications beyond the immediate parties.

Advocates also advise on the non-litigation dimensions of PIL — including the use of advocacy, media engagement, and public mobilisation to support the litigation, and the monitoring and enforcement of judgments. Advocates work alongside advocacy organisations, researchers, and communicators to ensure that the litigation is part of a broader strategy for change, and that the impact of a successful judgment is realised in practice, not just on paper.