The Government Wants Supermarkets to Police Manufacturers. Retailers Say That’s Not Their Job.
Every morning, lorries roll into supermarket loading bays across Kenya carrying thousands of factory-sealed products — cooking oil, bottled water, packaged foods, detergents. Retail clerks count boxes, check invoices, and move goods to shelves. That is their job. But Nema decided it should be more than that — and now a constitutional battle is unfolding in a Kisumu courtroom that could redefine where government enforcement ends and private business begins.
What Is Actually at Stake Here
This dispute is not about whether companies should pay for the plastic waste they dump into Kenya’s environment. Most people — including the retailers — agree they should. The Extended Producer Responsibility (EPR) framework, which Nema rolled out in November 2024, is built on the “polluter pays” principle: manufacturers, importers and brand owners must finance and manage the collection, recycling and disposal of their packaging after consumers discard it. That is a reasonable, defensible policy.
The fight is about something far more troubling — Nema’s decision to make supermarkets the enforcers of that policy, turning their loading docks into government compliance checkpoints. In January 2026, Nema issued a directive requiring retailers to verify four documents before accepting any delivery: a producer registration certificate, a plastic packaging licence, a Producer Responsibility Organisation (PRO) membership certificate, and a current compliance clearance. Fail to check? Risk prosecution. Stock a non-compliant product? Risk raids, store closures, and arrest.
The Retail Trade Association of Kenya Went to Court — and Won the First Round
The Retail Trade Association of Kenya (RETRAK), which represents supermarkets, convenience stores and organised retailers employing over 250,000 Kenyans, filed a petition challenging Nema’s enforcement model. Last week, the Environment and Land Court in Kisumu issued temporary orders halting that model in its tracks. The court barred Nema from conducting raids, closing stores, seizing inventory, arresting retailers, or prosecuting them over packaging violations attributed to manufacturers — at least until the full petition is heard.
The judge’s reasoning was pointed. Requiring retailers to police packaging compliance for products they neither manufacture, import, nor control appeared to amount to an unlawful delegation of Nema’s own statutory mandate. The court affirmed that retailers hold a constitutional right to engage in lawful trade and to protection of their property under Article 40, as well as the right to fair and lawful administrative action under Article 47. Crucially, the court clarified that Nema remains free to go after manufacturers and importers directly — which is exactly what the law requires.
Why Nema’s Approach Was Always Going to Fail
Here is what Nema asked supermarket receiving clerks to do — and why it was never realistic:
The consequences were immediate and severe. Suppliers, fearing enforcement action, began suspending deliveries. Perishable goods spoiled. Transport schedules collapsed. RETRAK estimates that the disruption cost supermarkets approximately Sh500 million in lost sales every single day — losses that ultimately hit workers, suppliers and ordinary Kenyan consumers, not the manufacturers Nema was supposedly targeting.
The Bigger Constitutional Question
Strip away the legal jargon and the core question this case asks is devastatingly simple: can the Kenyan government outsource its own regulatory duties to private businesses that had nothing to do with creating the problem in the first place? RETRAK’s position is that retailers sit at the end of the supply chain, not the beginning — they receive products already sealed by manufacturers and are legally prohibited from altering that packaging before sale. They are, as the association put it in court papers, a strict pass-through business.
Nema’s enforcement model, as designed, punishes the wrong actor. It lets manufacturers — the actual polluters — continue operating while threatening the businesses that merely stock their products. That is not environmental justice. It is regulatory misdirection, and it is costing Kenyans jobs, food security and hundreds of millions of shillings while the real polluters watch from a safe distance.
What Comes Next
The temporary court orders are a first-round win for retailers, but the constitutional petition still needs to be fully argued and decided. Nema can still pursue manufacturers, importers and brand owners directly — and it should. The EPR framework itself is not the problem; Kenya needs robust plastic waste regulation. But enforcement must follow the law’s own logic: go after those who produce the packaging, not those who simply sell what arrives in sealed boxes at their loading bays.
Young Kenyans who care about both the environment and economic fairness should watch this case closely. It will decide whether regulatory agencies can arbitrarily transfer their statutory obligations onto private businesses — and whether the courts will hold the line when they try.
