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The Evolving Locus Standi and Causation Requirements in Kenya: A Precautionary Turn for Climate Change Litigation?

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Lydia A. Omuko-Jung

DOI https://doi.org/10.21552/cclr/2021/2/8



A recognised challenge for climate litigation is the fundamental incompatibility between the climate change problem and legal systems’ ability to hold critical players accountable. Locus standi and causation are critical stumbling blocks in the quest for climate justice. In Kenya, the requirements for locus standi and causation in public interest environmental litigation have been evolving. This article explores this evolution, showing three ways in which this creates opportunities for climate litigation. Firstly, there is no need to show particularised injury, which allows any person to sue for climate-related actions or inactions. Secondly, liability routes have been created that allow litigants to avoid the restrictive causation requirements, so that the plaintiff would not have to show any injury, let alone link harms to emissions from specific entities or to inaction. Thirdly, the courts take a precautionary approach which then shifts the burden of proof to the defendants, who are required to show that their activities or inaction do not pose a threat of serious or irreversible damage. These recent developments provide the needed legal opportunities for climate litigation and could make Kenya a potential hotspot for future climate change cases.

Doctoral Researcher, Institute of Public Law and Political Science, University of Graz; Legal Analyst, Climate Change Litigation Initiative; Advocate of the High Court of Kenya. For correspondence: <lydia.omuko@uni-graz.at> This work was funded by the Austrian Science Fund (FWF) under Research Grant W1256 (Doctoral Programme Climate Change: Uncertainties, Thresholds and Coping Strategies). I am grateful to Kim Bouwer and Tracy-Lynn Field for the useful discussions and comments on earlier drafts. I also wish to thank the anonymous reviewers for their insightful comments.

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