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Transport Cabinet Secretary Kipchumba Murkomen has been summoned to appear in court in person over failure by the government to comply with orders requiring it to provide toilets and other sanitation facilities on highways.

Employment and Lands Court judge Oguttu Mboya ordered Murkomen to appear in court on September 20 to explain why the orders issued by the court to the Jubilee administration have not been implemented to date.

In the meantime, the court has ordered the CS to ensure there is compliance with orders to build the facilities.

Justice Mboya issued the summons after finding an affidavit filed by his Principal Secretary, Joseph Mbugua, detailing the progress so far achieved to be unsatisfactory.

The government has been accused of failing to obey the orders issued in a case filed by lawyer Adrian Kamotho in 2017.

 Kamotho filed the suit against the Council of Governors, Kenya National Highways Authority (KeNHA), Kenya Rural Roads Authority (KERRA) and Kenya Urban Roads Authority (KURA).

Justice Kossy Bor in 2020 issued the orders requiring the government to build or facilitate the building of toilets on all highways.

Kamotho had urged the court to compel the State to comply with the orders within 60 days but the judge noted that the request was impracticable bearing in mind the budgetary implications of formulating and implementing the policy.

In her decision, Justice Bor directed the Council of Governors to constitute a committee under Section 20 of the Intergovernmental Relations Act which will liaise with KERRA and KURA through the Transport ministry in the formulation and implementation of the policy for the provision of toilets and other sanitation facilities on the Kenyan road network.

Healthy environment

She further said the Cabinet Secretary in charge of Transport should constitute and chair the Working Group, which will include representatives of all the 12 government agencies, to formulate the policy for the provision of toilets and other sanitation facilities on the country’s road network to give effect to the right to a clean and healthy environment on the roads.

“The national transport policy should incorporate toilets and other sanitation facilities as part of the roadside developments in the road designs for existing and new roads; and designate a sufficient number of such facilities on road stops on the national and international trunk roads,” the Judge in 2020 stated.

The policy, she added, should take into account the need to have the toilets and other sanitation facilities maintained properly by the county governments once constructed.

But in an affidavit filed in court on March 16, 2023 by PS Mbugua says the CS in compliance with the court order dated January 16, 2020 constituted a working group consisting of officials from 12 agencies.

Government approvals

He adds that the Ministry of Transport and Roads has since started implementation of the orders as it has put in place the integrated national transport policy 2012 to develop, operate and maintain an efficient cost effective, safe, secure and integrated transport system that links the transport policy with other sectoral policies.

The document is currently providing policy guidelines on the provision of transport in Kenya.

“The ministry has been reviewing the document to address challenges and emerging issues mentioned in the case before court,” Mbugua states in his affidavit filed in court.

The PS explained to the court that the CS with the co-operation of the 12 agencies has developed draft regulations on the roadside stations dubbed “The Kenya Roads Regulations 2023” The draft regulations, he says, are currently in process of adoption. It is this affidavit that the court found to be ‘unsatisfactory’ given what was remaining was implementation of the 2020 courts final orders.

He adds that it is undergoing internal government approvals before being subjected to public participation.

In his petition, he argued that sanitation is a first generation right that citizens should not be denied, and that responding to a call of nature is an inevitable human process for which citizens have entirely no control. He averred that in places where there are public toilets in Kenya, citizens are charged a fee and those who cannot afford to pay are turned away.