In review: environmental protection regulations in Kenya

All questions

Environmental protection

According to the Kenya National Bureau of Statistics Economic Survey 2020, respiratory system disease was the leading cause of morbidity at 25 per cent of all disease incidences in Kenya in 2020. Additionally, approximately 21.9 million people contracted respiratory diseases as a result of air pollution. This highlights the critical need for urgent measures to limit air pollution in Kenya.

Section 78 of EMCA empowers the cabinet secretary, in accordance with recommendations from NEMA, to establish criteria and procedures for the measurement of air quality, set air quality standards and take other measures to control air pollution, such as issuing guidelines to minimise GHG emissions and the application of suitable technology. Section 79 of EMCA further empowers the cabinet secretary to announce controlled areas and prescribe the air emission standards in respect of such areas. Section 101 in turn sets out standards of noise and recommends to NEMA minimum standards for noise emission and vibration pollution.

The Environmental Management and Co-ordination (Air Quality) Regulations 2014 provide for the prevention, control and abatement of air pollution for clean, healthy and ambient air. They prohibit certain forms of pollution, and provide guidelines on levels of pollution that are permissible as well as issuing emission licences.

The Regulations apply to all internal combustion engines, all premises, places, processes, operations or works, and any other appliances or activities the cabinet secretary so designates. The Regulations prescribe areas deemed to be controlled and contain important provisions on limiting emissions from demolition, waste incinerators, open burning and cross-border pollution.

The Environmental Management and Co-ordination (Water Quality) Regulations 2006 apply to water used for domestic, industrial, agricultural and any other purposes. The objective is to regulate the discharge of effluent and provide guidelines and standards for disposing of other pollutants.

In National Environment Management Authority & 3 others v. Maraba Lwatingu Residents Association & 505 others, the Environment and Land Court upheld the decision of the National Environment Tribunal cancelling an EIA licence for the construction of sewage ponds by Lake Victoria North Water Services Board and ordering restoration on the basis that the appellants did not conduct adequate public participation and the mitigation measures under the Water Regulations were not adhered to.²²

The EMCA empowers NEMA to make regulations that provide for the labelling, classifying and handling of hazardous chemicals.²³ It also prohibits and creates the offence of discharging chemicals into the environment contrary to the regulations enacted.²⁴ The draft Environment Management and Coordination (Toxic and Hazardous Industrial Chemicals and Materials Management) Regulations 2018 have subsequently been developed. The regulations will see Kenya aligning itself with the seventh edition of the Globally Harmonised System of classifying and labelling chemicals, which will be mandatory.

The draft regulations require companies to acquire permits when they want to import or export toxic and hazardous chemical substances. Companies are also required to have a permit in order to manufacture hazardous and toxic chemicals. Any person in possession of hazardous chemicals declared by any law to be disposed of is required to notify NEMA. The draft regulations also require importers, exporters and manufacturers of toxic chemicals to maintain records and reports.

Section 87 of the EMCA prohibits the discharge of waste in a manner that causes pollution to the environment or ill health. It also requires any person operating or transporting waste to have a valid licence from NEMA. Any person operating a waste disposal site is required take adequate measures to minimise pollution under the same section.

Under the Environmental Management and Co-ordination (Waste Management) Regulations 2006, persons who engage in activities likely to generate any hazardous waste need to have a valid Environmental Impact Assessment licence from NEMA. Producers of hazardous waste are required to treat the waste in a waste facility before disposal. They are also required to ensure that every container or package for storing the waste is secure and labelled in easily legible characters written in English or Kiswahili.

Where a party intends to export hazardous waste, they must do so with a valid permit issued by NEMA and a valid prior informed consent document issued by the designated national authority of the receiving country. Finally, an applicant for a permit in dealing with hazardous waste must satisfy NEMA that he or she has taken out an insurance policy covering risks likely to arise out of the activity for which the licence is required.

In the case of Martin Osano Rabera & another v. Municipal Council of Nakuru & 2 others [2019] eKLR, the Environment and Land Court declared that the first respondent and NEMA (second respondent) had violated the petitioner's right to a healthy and clean environment with regard to the manner in which they had operated a dump site. Moreover, the third respondent was required to apply for a waste disposal licence under Sections 87, 88 and 89 of the EMCA.

The Draft Environmental Management and Co-ordination (Extended Producer Responsibility) Regulations 2020 set out additional obligations for producers²⁵ and provide for mandatory extended producer responsibility schemes for all products and packaging in all phases of their life cycle to enhance environmental sustainability. Regulation 3 contemplates the scheme will be critical in, among others, the reduction of waste at source, the promotion of environmentally friendly products' designs and packaging, and cleaner production processes.

Section 93 of the EMCA prohibits the disposal of hazardous materials into the environment and makes such disposal an offence. A person convicted of this offence in addition to any other sentence is bound to pay the cost of removal of the hazardous material and the costs of third parties in the form of restoration, restitution and compensation. The owner of the source of the discharge is required to mitigate the impact of the discharge by informing the authorities, commencing immediate clean-up operations, and complying with other rules issued by NEMA.

Under Section 11 of the Land Act 2012, an obligation is imposed on the National Land Commission to identify ecologically sensitive areas that are within public lands and demarcate or take any other justified action on those areas and act to prevent environmental degradation and climate change.

The Integrated National Land Use Guidelines²⁶ provide for methods of preventing the contamination of land through ensuring compliance and enforcing licensing conditions. They provide for the maintenance of a Contaminated Land Register, which will be made accessible to the public. Further, the Guidelines empower NEMA and other relevant authorities to undertake site investigations of the contaminated land and evaluate the remedial reports filed by proponents. NEMA is further empowered to develop and approve site management plans to guide in the management of health and environmental harm.

Under the National Land Use Policy,²⁷ it is recognised that land-use planning is essential to the efficient and sustainable utilisation and management of land and land-based resources. The government of Kenya is required, pursuant to the policy, to establish measures to control the degradation of land through the abuse of inputs and inappropriate land-use practices. In urban settings, proposed land conservation measures under the policy include the rehabilitation of dumping sites and land that has been subjected to environmental degradation.

In a landmark case of KM & 9 Others v. Attorney General & 7 Others [2020] eKLR, the Environmental and Land Court ordered the state and two private investors to pay US$12 million to residents of an informal settlement in Mombasa who were affected by lead poisoning that emanated from a factory within the area. The state agencies responsible for the environment were also ordered to clean up any remaining lead deposits within four months or face further sanctions, and to develop and implement regulations adopted from best practices with regard to lead and lead alloys manufacturing plants.