Nema Can't Force Supermarkets To Vet Suppliers' Pollution Compliance, Court Rules

Kenya's Environment and Land Court in Kisumu has temporarily blocked the National Environment Management Authority from forcing supermarkets to verify manufacturers' environmental compliance before stocking their products. The order followed a petition filed by the Retail Trade Association of Kenya, known as RETRAK.

The dispute traces back to Nema's enforcement of the Extended Producer Responsibility regime, rolled out in November 2024. The framework requires manufacturers, importers and brand owners to finance and manage the collection, recycling and disposal of packaging materials once consumers discard them, under a polluter pays principle.

A January 2026 Nema order went further, requiring retailers to verify four separate compliance documents before accepting deliveries: producer registration certificates, plastic packaging licences, Producer Responsibility Organisation registration certificates and current compliance clearance evidence.

RETRAK, which represents supermarkets, convenience stores and other organised retailers employing more than 250,000 people, argued retailers neither manufacture products nor choose their packaging, and are legally barred from altering sealed goods before sale. The association described the directive as converting private delivery bays into first-line compliance checkpoints for public regulatory obligations.

The association said it had asked Nema to publish a promised master register of compliant producers, which the regulator acknowledged in court filings was being prepared but never delivered. Instead, Nema issued further enforcement notices warning retailers they risked prosecution for stocking products from non-compliant manufacturers.

RETRAK told the court that manufacturer compliance remained below five percent, prompting suppliers to suspend deliveries rather than risk enforcement, disrupting transport schedules, spoiling perishable goods and costing supermarkets an estimated Sh500 million in sales daily.

The court found that RETRAK's members held a constitutional right to lawful trade, property protection under Article 40 and fair administrative action under Article 47, and observed that requiring retailers to police compliance for products they neither manufacture nor control appeared to delegate Nema's own statutory mandate.

The orders bar Nema from conducting raids, closing stores, seizing inventory, arresting retailers or prosecuting them over packaging violations attributed to manufacturers, while leaving the regulator free to investigate producers directly as the underlying constitutional case proceeds.