Supermarkets across Kenya have found themselves at odds with the National Environment Management Authority (Nema) over new environmental compliance rules tied to packaging waste management.

Since November 2024, Nema has implemented the Extended Producer Responsibility (EPR) framework. This policy mandates manufacturers, importers, and brand owners to fund and oversee the collection, recycling, and disposal of packaging materials after consumer use, following the "polluter pays" principle.

The EPR regulations require producers to design environmentally friendly packaging that reduces waste and supports reuse and recycling. They also hold producers accountable for the entire lifecycle of their products, including post-consumer waste management.

Dispute Over Retailers’ Role

While the policy itself remains unchallenged, the enforcement approach has sparked legal contention. Nema ordered supermarkets and retailers to verify several compliance documents from manufacturers before accepting deliveries. These documents include:

  • Producer registration certificates
  • Plastic packaging licences
  • Producer Responsibility Organisation (PRO) membership certificates
  • Evidence of current compliance clearance

The Retail Trade Association of Kenya (RETRAK), representing major retail outlets, argues that retailers are not responsible for manufacturing or packaging decisions and lack the authority and expertise to verify compliance. They describe retail operations as pass-through businesses that cannot alter factory-sealed products.

RETRAK also highlighted the absence of a publicly accessible master register of compliant producers, which Nema had promised but has not yet provided. Without such a database, retailers claim they cannot independently confirm manufacturers’ compliance status.

Legal Intervention

In January 2026, following Nema’s enforcement notices, RETRAK filed a petition at the Environment and Land Court in Kisumu. The court temporarily barred Nema from enforcing the directive that required retailers to act as compliance checkpoints. This includes prohibiting raids, store closures, inventory seizures, arrests, and prosecutions of retailers over packaging violations attributed to producers.

The court observed that compelling retailers to verify compliance effectively shifts Nema’s statutory responsibilities onto private businesses at the end of the supply chain. It recognized retailers’ constitutional rights to conduct lawful trade and protect their property, emphasizing that Nema can still investigate producers directly.

Impact on Retailers and Supply Chain

RETRAK reported that less than five percent of manufacturers comply with the EPR rules, leading some suppliers to halt deliveries to avoid penalties. This disruption has reportedly caused daily sales losses of about Sh500 million for supermarkets, alongside logistical challenges and spoilage of perishable goods.

The ongoing constitutional case will determine whether environmental enforcement duties can be transferred from government regulators to private retailers, raising broader questions about governance and regulatory scope in Kenya’s environmental policy.