Court Orders County Government of Mombasa to Respond in Hazardous Waste Levy Case

BY the COAST Reporter

Email, thecoastnewspaper@gmail.com

The High Court has directed the County government of Mombasa to file its response to an application by an association which has sued it over imposition and enforcement of hazardous waste levy on its Finance Act 2025.

Justice Gregory Mutai’s directive affects the County Executive Committee Member- Finance and Economic Planning and the County Assembly of Mombasa who are also respondents in the case filed by Pwani Circular Economy (PCE).

The PCE is an association whose members include hazardous waste handlers licensed by the National Environment Management Authority (NEMA).

In its application, the association is seeking among others, a conservatory order restraining the respondents from enforcing the levy against it and its members pending hearing and determination of its petition.

“Leave is granted to the respondents to file and serve their respective responses within three days of the date hereof,” ruled Justice Mutai on Wednesday February 18, 2026.

The judge also allowed the petitioner (PCE) to file and serve supplementary affidavit and written submissions within seven days upon being served with the respondents’ responses.

The association, in its petition, claims that the county government of Mombasa has no constitutional or legislative authority to impose a levy of hazardous waste management.

This, it argues in its petition that hazardous waste is not a devolved function and remains regulated exclusively under national legislation including the Environmental Management and Coordination Act (EMCA) and the Sustainable Waste Management Act.

“The impugned levy undermines the principles and objects of devolution including economic unity, free movement of goods and services and cooperative governance between national and county governments,” part of the petition states.

It claims that the respondents imposed the hazardous waste levy without enacting any substantive county legislation, policy or regulatory framework governing hazardous waste management contrary to national law and constitutional requirements for lawful exercise of county fiscal powers.

The PCE wants a declaration that the imposition and enforcement of hazardous waste levy is unconstitutional, illegal, null and void for violating the constitution.

It also wants a declaration that hazardous waste management is not a devolved function and that the county government of Mombasa lacks constitutional and statutory authority to levy or regulate hazardous waste handlers.

It is also seeking a declaration that the enactment and escalation of the hazardous waste levy was undertaken without meaningful public participation and is therefore unconstitutional.

The association also argues that county governments, under the constitution, are assigned the responsibility for ‘refuse removal, refuse dumps and solid waste disposal’.

“This constitutional allocation is deliberately narrow and confined to ordinary municipal solid waste management within county boundaries,” the petition states adding that hazardous waste is qualitatively and legally distinct from ordinary solid waste.

The petitioner says that the county government of Mombasa enacted the Mombasa County Finance Act 2025 which introduced an annual licence fee of Sh100,000 payable by hazardous waste handlers operating within the county.

“By contrast, handlers of solid or organic waste are charged a significantly low fee of Sh40,000 notwithstanding that hazardous waste handlers are already subject to stringent national regulation and oversight,” the petitioner argues.

According to the petitioner, the impugned levy is already being actively enforced by the respondents despite having been introduced without any county hazardous waste policy, substantive legislation, regulatory framework or supporting infrastructure.

The petitioner also argues that the county government of Mombasa does not own, operate or license any hazardous waste treatment or disposal facility within its jurisdiction and lacks the technical capacity, expertise and infrastructure necessary to manage hazardous waste.

“Even biomedical waste generated by county-owned health facilities is handled exclusively by private operators licensed by NEMA, demonstrating the county’s complete reliance on nationally regulated private entities,” the petitioner argues.

The petitioner also claims that the county government of Mombasa provides no service in respect of hazardous waste collection, transportation, treatment or disposal rendering the impugned levy a purely revenue-raising measure imposed without any corresponding service, benefit or lawful regulatory function.

Parties are expected to highlight their submissions on April 13.