Consultancy: Practice guide for strategic litigation in Kenya

DEVELOPMENT OF A STRATEGIC ENVIRONMENTAL JUSTICE LITIGATION PRACTICE GUIDE AND TOOLKIT FOR KENYA

About Natural Justice

Natural Justice is a non-profit organization rooted in the struggles of communities in Africa. As a team of pioneering lawyers and legal experts, we specialize in human rights, environmental justice, climate, land, indigenous, and heritage law. Our mission is to enhance the collective rights of people and protect the relationships Indigenous Peoples and local communities have with nature. We work through legal empowerment, research, policy advocacy, and strategic litigation to ensure communities can know, use, and shape the law.

To learn more about the work of Natural Justice please refer to www.naturaljustice.org

Background

Environmental degradation, climate change and the expansion of infrastructure, extractives, conservation and energy projects continue to generate complex legal disputes involving land, natural resources, pollution, biodiversity, climate impacts, infrastructure development and the rights of affected communities. Strategic environmental litigation has therefore become an increasingly important avenue for advancing environmental justice, holding duty-bearers and private actors accountable, protecting and strengthening the rights of communities and future generations and influencing policy and practice.

Despite the growing body of environmental jurisprudence in Kenya, legal practitioners continue to face practical and strategic challenges across the litigation lifecycle: determining whether litigation is the appropriate intervention; developing a theory of the case; selecting the appropriate forum and respondents; working ethically and effectively with affected communities; gathering and presenting scientific, technical and community evidence; managing litigation risks; designing meaningful remedies; and securing implementation of judgments and orders.

Natural Justice therefore seeks to develop a practice-oriented, community centred Strategic Environmental Litigation Guideand Toolkit. Rather than serving primarily as a compendium of law and jurisprudence, the resource should translate legal doctrine, litigation experience and community-centred practice into usable strategies, decision tools, templates, checklists and case-based lessons that practitioners can apply from case identification through remedy and enforcement.

Purpose

The purpose of this assignment is to develop a practical, user-friendly and legally sound Strategic Environmental Litigation Practice Guide and Toolkit that strengthens the capacity of public interest lawyers, paralegals, rights focused civil society organizations and partners in Kenya to identify, design, prepare, litigate, and follow through environmental justice cases in a strategic, community-centred and rights-based manner.

Objectives

The specific objectives of the assignment are to:

Develop an innovative, comprehensive practice-oriented and community centred guide and toolkit on strategic environmental justice litigation in Kenya.

Distil relevant constitutional, statutory, regulatory and institutional frameworks and jurisprudence into practical guidance for litigation strategy and decision-making.

Provide practical guidance across the full litigation lifecycle, including case screening, strategic case design, community engagement, evidence development, forum selection, filing and procedure, interim relief, remedies, enforcement and post-judgement follow-up.

Develop a suite of practical litigation tools, including case screening, theory-of-case, stakeholder and power mapping, evidence, risk, forum selection, interim relief, remedy design and enforcement tools and checklists.

Capture practice-based knowledge, challenges, innovations and lessons from unsuccessful cases, procedural setbacks and implementation challenges.

Develop case-based learning that captures the strategic choices, evidence, procedural issues, remedies, implementation experience and lessons arising from selected environmental justice cases.

The consultant should ensure the guide is designed for practical use by its primary audience (advocates and public-interest/environmental justice practitioners) while remaining accessible to secondary users such as community legal practitioners, civil society organisations, researchers and law students.

Scope of Work

The consultant/consulting team will undertake the following tasks:

4.1 Inception and review

4.1.1 Develop an inception report and detailed methodology.

Undertake a targeted review of relevant legislation, regulations, jurisprudence, procedural rules, litigation files and learning products, Natural Justice’s organisational resources and selected comparative and regional environmental justice litigation materials.

4.1.2 Develop for approval, an annotated outline that sets out the proposed conceptual framework, litigation-lifecycle architecture, case-study approach, cross-cutting principles, signature tools and proposed user experience of the guide.

4.1.3 Practice-based research and consultation

The methodology should go beyond desk-based legal research. It should include targeted key informant interviews and/or structured consultations with experienced environmental and public-interest litigators, Natural Justice practitioners, community legal practitioners and, where appropriate, technical experts and community representatives. The consultant should deliberately capture tacit practice knowledge, including difficult cases, unsuccessful strategies, procedural setbacks and post-judgment implementation experience.

The consultant should identify and analyse a purposive selection of Kenyan environmental justice cases as case laboratories. Case selection should reflect different substantive issues, forums, litigation stages and outcomes, and should include lessons from both successful and unsuccessful litigation where information is available and appropriate.

4.1.4 Cross-cutting principles

The guide should consistently apply the following cross-cutting principles: community agency and informed participation; environmental and climate justice; gender and social inclusion; Indigenous Peoples’ and local communities’ rights; access to information and participation; protection of environmental human rights defenders; ethical use of community and Indigenous knowledge; accessibility; and a focus on effective remedy and implementation.

4.2 Research and development of the guide

The guide should be organised primarily around the environmental justice litigation lifecycle, while integrating relevant substantive areas of environmental law. At a minimum, it should cover:

Understanding and framing environmental injustice: applicable rights, duties, environmental laws, regulations, policies, and institutional responsibilities.
Strategic case screening: whether, when and why to litigate; community objectives; alternative and complementary avenues; urgency; litigation risks; and prospects for meaningful remedy.
Case design and theory of the case: identifying harms, affected rights-holders, responsible actors, causes of action, respondents, duties, evidence, causation and intended remedies.
Community-centred lawyering: informed instructions, participation, representation, expectations, inclusion, communication, protection of community knowledge and evidence, and management of risks to communities and environmental human rights defenders.
Evidence strategy: documentary, administrative, scientific, expert, community and Indigenous knowledge, digital, geospatial and other technical evidence; matching evidence to elements of the case.
Forum and procedure: standing, jurisdiction, exhaustion, limitation, appropriate forums, pleadings, joinder, costs, appeals, and strategic use of interim and conservatory relief.
Remedy design: developing remedies that respond to the actual environmental and community harm, including preventive, restorative, compensatory, procedural, structural and other appropriate relief.
Enforcement and implementation: translating judgments and orders into realised remedies through compliance planning, monitoring, follow-up proceedings, community monitoring and complementary advocacy.
Strategic litigation beyond the courtroom: appropriate use of community organising, communications, policy advocacy, administrative processes, corporate accountability and other complementary strategies.
Substantive strategic litigation case studies and practice lessons drawn from environmental impact assessment and licensing, land and natural resources, extractives and transition minerals, biodiversity and conservation, pollution, infrastructure, renewable energy and just transition, and climate justice litigation.
Emerging environmental justice frontiers, including climate litigation, renewable energy and just transition, transition minerals, carbon markets, biodiversity and conservation initiatives, corporate environmental accountability, cumulative impacts and intergenerational rights. Cross-border regional and international environmental justice litigation and accountability mechanisms where relevant international environmental justice litigation and accountability mechanisms, where relevant to Kenyan practitioners.
Lessons from practice and jurisprudential trends, including what has worked, what has not worked, unintended consequences, adverse-cost and precedent risks, implementation barriers, and implications for future litigation strategy.

5. Key Deliverables

Deliverables should demonstrate progressive development of the guide as a practice product, rather than only a legal research publication.

The consultant/consulting team will deliver:

Inception Report and Workplan: Outlining methodology, approach, and study timeline

Annotated Outline: setting out the proposed contents and approach to the guide.

Conceptual and User Framework: a concise framework identifying the primary and secondary audiences, user needs, proposed litigation-lifecycle model, case-study selection criteria, proposed signature tools and approach to accessibility and future adaptation.

Draft Strategic Environmental Justice Litigation Practice Guide and Toolkit: comprehensive draft integrating law and jurisprudence, with pactice-basded guidance, case studies, decision trees, templates, matrices and checklists.

Practitioner user testing and validation: facilitate structured review and testing of the draft and selected tools with a diverse group of environmental/public-interest practitioners and other relevant users, and document the feedback and proposed responses in a consultation and user-testing matrix.

Final Strategic Environmental Justice Litigation Practice Guide and Toolkit: a revised, copy-edited and professionally structured guide incorporating Natural Justice, practitioner and user-testing feedback, with all tools provided in editable formats for subsequent design and dissemination by Natural Justice.

Case and Source Register: a verified list of all cases, legislation, regulations, policies, secondary sources and organisational materials relied upon, using a consistent citation style and providing sufficient information for future updating of the guide.

6. Consultant Qualifications and Experience

The consultant or consulting team should have:

An advanced degree in law, preferably with specialisation or demonstrated expertise in environmental, constitutional, human rights or related public-interest law. Admission to practice law in Kenya, preferably with substantial litigation experience.

At least 10 years’ relevant professional experience in environmental, constitutional, public interest or human rights litigation including demonstrable strategic litigation experience.

Demonstrated knowledge of Kenya’s environmental and natural resource legal framework.

Strong experience in legal research and analysis, particularly environmental jurisprudence.

Demonstrated experience in community-centred lawyering and working with Indigenous Peoples and local communities, and/or civil society organisations in rights-based or public-interest litigation. Excellent legal writing, research and analytical skills , together with demonstrated ability to translate complex legal and practice knowledge into accessible practitioner tools, learning products or training materials.

Experience in qualitative interviewing, case-study development, legal pedagogy, knowledge-product development or adult/practitioner learning will be an added advantage.

Where a team is proposed, the team should collectively demonstrate the required litigation, research, community-engagement and knowledge-product competencies.

7. Application Requirements

Interested consultants/consulting teams should submit: