ENVIRONMENTAL LAW IN KENYA

The environment includes physical factors of the surroundings of human beings including land,
water, atmosphere, climate, sound odor, taste, the biological factors of animals and plants and the
social factor of aesthetics and includes both natural and the built environment.

In Kenya historically, policy making and the whole planning process has tended to fall short of the
expectations. There was no comprehensive environmental policy. The country’s first two
development plans for the period between 1965 and 1974 had no mention of an environmental
policy. In the 20th Century, the government began the implementation of the Structural Adjustment
Programs. The government stepped up efforts to strengthen institutions tasked with the
responsibility of assessing and monitoring environmental changes that are likely to have harmful
effects in the future.

The enactment of the Environmental Management and Coordination Act (EMCA) No 8 of 1999 that
served as the main framework for environmental law was among the steps in the countries
commitment towards environmental sustenance. Kenya joined 42 countries that have implemented
National Environmental Governance Structure. Before then, several laws existed scattered in
various laws and statutes administered by various ministries.

LEGISLATIVE AND POLICY FRAMEWORK

Legal Provisions on Environmental Rights in Kenya.

The Constitution

The constitution of Kenya since its promulgation in 2010 now focuses on the right to a sustainable
environment as a fundamental right and freedom.

Article 42 provides for the right to a clean and healthy environment.

Its preamble also includes the goal of ensuring that we respect our environment. Chapter V of the
constitution also discusses land and the environment. In discussing Article 69 on the obligations
with regard to the environment we note below that:

Article 69 (a) – Sustainable Development

- Discusses the role of the state in ensuring sustainable development as well as the importance of
equitably sharing benefits derived from the environment.

Article 69 (b) - Tree cover

-Kenya’s present forest cover is equivalent to 5.9% of land area which is considered inadequate in
contributing to the national economy significantly while still ensuring environmental and social
cultural functions.

-It’s important to note also that the Kenya Forest Services; in its strategic plan 2009-2013 – also
supports this provision in requiring that forests need to be sustainably managed through the
combined use of ecological, economic and social approaches.

Article 69 (c) – improving of intellectual property and indigenous knowledge.

• This provision promotes indigenous knowledge systems and acknowledges their role in the
conservation of biological diversity

Article 69 (d) - Public Participation in the conservation of the environment

• The United Nations Conference on Environment and Development (Rio conference) 1992
through Local Agenda 21, the Convention on Access to Information, Public Participation in
Decision making and Access to Justice in Environmental matters [Aarhus Convention] 1998
recognizes the benefits of public participation in environmental decision making.

Article 69 (e) – Protection of genetic resources and biological diversity by the state

• Kenya has ratified the Convention on Biological Diversity (CBD) of 1992 in 1994 and later
on established the National Biodiversity Strategy and Action Plan (NBSAP) to address the
requirements of the CBD through the then Ministry of Environment and Natural Resources.

Article 69 (f) – Establishment of the Environment Impact Assessment, Audit and Monitoring

• This is one of the most well-known tools for environmental assessment. EMCA was the first
legislation to formally define the Environment Impact Assessment (EIA) within the Kenyan
context.

• EIA is then a tool that assists in the anticipation and minimization of the adverse effects of
development.

• The concept of EIA then arose from the pollution and degradation of natural resources
caused by rapid population growth, industrialization, agricultural development and
technical progress.

• The Environmental Impact Assessment and Audit Regulations of 2003 [EIAAR], followed by
EMCA and these two legislations form the basis of EIA in Kenya.

The Mining ACT Cap 306

This Act is divided into 6 parts. Under section 7 it deals with land use and disposals.

Section 61 deals with disputes arising between Government and the mining companies.

Section 6(1) establishes the offences and liability for any person who mines on any land in Kenya
without appropriate authority and compliance with the law. Any offence under this Act attracts a
fine of Kshs 2,000 or a term of imprisonment not exceeding six (6 months and the forfeiture of all
minerals obtained in the cause of such unauthorized prospects or if such minerals cannot be
forfeited or make payments to the government of such sums as the court assesses as the value of
such minerals.

The Penal Code

The Penal Code contains various provisions that deal with environmental offences as follows;

• Section 186- Any person spreading infection with intention to endanger life is guilty of
misdemeanor.
• Section 191 – Any person who voluntarily fouls or corrupts the water of any public spring or
reservoirs so as to tender it less fir for the purpose for which it is ordinarily used for is guilty of
misdemeanor.
• Section 192 – Any person who vitiates the atmosphere in any space so as to make it noxious to
the environment or the neighborhood is guilty of a misdemeanor
• Section 340 – Any person who attempts to destroy property using explosives is liable to
imprisonment for 14 years.
• Section 341- Any person who voluntarily communicates infectious diseases to animals is guilty
of a felony and liable to imprisonment to a term not exceeding 7 years.

The Physical Planning Act Cap 286 (revised in 2009)

It is divided into 6 parts and 5 schedules. It provides for preparation and implementation of
physical development plans and for connected purposes.

Section 36- Provides for Environment Impact Assessment Report before any development plan is
approve to prove that it will not be injurious to the environment.

Second Schedule section 24(2) (6) – provides for conservation of the natural beauty of the area
including lakes and other inland waters, banks of rivers foreshore of harbors and other parts of the
sea , hill slopes and summits and valleys ( matters which may be dealt with in Local Physical
Development Plan).

The Public Health Act Cap 242

This Act was created to address current and emerging Public Health issues including new
challenges in communicable disease prevention and control. (E.g. SARS, high pandemic influenza
etc.). It also deals with health promotion and health protection, chronic disease and injury
prevention, poisoning and bioterrorism threats. The Act deals with improved health monitoring
abilities such as being able to require the reporting of indicators of hazardous environmental
exposures e.g. blood levels of lead and mercury. It also contributes to preventing the potential
negative health effects associated with exposure to environmental contaminants and poisonings.

Section 115 prohibits causing of nuisance or anything which is injurious or dangerous to human
health in the environment.

Section 129 provides that it is the duty of Local Authority to protect water supplies by taking all
lawful necessary unreasonable practicable measures for preventing any pollution dangerous to
health of any supply of water which the public within its districts a right to use and does use for
drinking or domestic purposes (whether such supply is derived from sources within or beyond its
districts) and it also purifies any such supplies which has become so polluted.

Section 157 (2) provides that inhabitants of a district may be safeguarded in respect of preventing
of pools of standing water and the drainage and controls of such pools whey they exist.

The Radiation Protection Act 2007-Cap 243

This Act establishes Radiation Board which is the national competent authority with the
responsibility for protecting the health and safety of people and the environment from harmful
effect of ionizing radiation. It regulates the use of ionizing radiation, exportation, importation,
distribution and possession of radiation sources. The Board operates under two subsidiary
legislations.

• The Radiation protection (Standards) Regulations no 54 1986

• The Radiation (Structural requirements and inspection of buildings) Regulation no 55 of 1986

It is a regulatory process of setting up a radiation facility. It deals with registration and licensing of
radiation workers.

Section 11 – gives guidelines on disposal of radiation materials

Section 18 – provides for making of regulations for operations of the Act.

The Maritime Zones Act, Cap 371

The Act was revised in 2012. The law relates to the territorial waters and the Continental Shelf of
Kenya. It provides for the exploration, exploitation, conservation and management of resources of
the maritime zones.

Section (5) - Kenya shall within the exclusive economic zone exercise sovereign rights with respect
to the exploration and exploitation and conservation and management of natural resources of the
zone and without prejudice to the generality of the foregoing the exercise of the sovereign right in
respect of regulation control and preservation of the marine environment.

Section 9(1) – gives the Minister authority to make regulations to regulate the exploitation and
exploration, conservation and management of Maritimes zone for the purpose of protection, control
and preservation of the maritime environment.

INTERNATIONAL CONVENTIONS ON THE ENVIRONMENT RATIFIED KENYA.

Soft Law

• World Commission on Environment and Development (The Brundtland Report) of

1987.

• Also known as our “common future”.

• It focuses on the environmental aspects of development in particular the emphasis on

sustainable development that produces no lasting damage to the biosphere and to
particular ecosystems.

• Rio Declaration and Agenda 21. [United Nations Conference on the Environment and
Development- UNCED] 1992.

• The above two instruments are legally binding. Rio Declaration focuses on general
principles and objectives while Agenda 21 contains detailed guidance on their practical
implementation.

Hard Law
• The Montreal Protocol of 1987.

• This was mainly on substances that deplete the Ozone layer, the biological and toxin
weapons etc.

• The Geneva Convention

• This was on long range trans-boundary air pollution. It was with an effort to control levels
of air pollutants from industries sources.

• The Ramseur Convention on Wetlands of International importance.

• It was ratified in Kenya in 1990.

• It was primarily concerned with the conservation and management of wetlands.

• The parties to the Convention were required to promote wise use of wetlands, whether
included in the Ramsar list or not.

• EMCA defines wetlands as “an area permanently or seasonally flooded by water plants and
animals have become adapted.

• Convention on Biological Diversity.

• This was an outcome of the United Nations Conference on Environment and Development
[UNCED] held in Rio de Janeiro in 1992.

• This Convention establishes a globally legally binding framework for the conservation of
biodiversity, the sustainable use of its components and the fair and equitable sharing of
benefits arising out of utilization of genetic resources.

POLICY

The National Land Policy

Land use management issues
Article 113 acknowledges the importance of planning as being essential to the efficient and
sustainable utilization and management of land and land based resources. Problems related
to a lack of planning affecting Kenya include urban sprawl, land use conflicts, environmental
degradation and spread of slum developments as well as low levels of land utilization. The
policy sets out a number of key issues that need to be addressed, most of which directly
involve the environment. These are:
a) Underutilization of land particularly in large farms;
b) Land deterioration due to population pressure, massive soil erosion and variability in
climatic patterns among other things;
c) Poor infrastructure leading to abandonment of agricultural activities;
d) Emergence of land use conflicts as a result of competing land uses;
e) Uncontrolled subdivision of agricultural land;
f) Indiscriminate sale and purchase of land;
g) Overstocking in rangelands; and
h) Limited extension services and shortage of agricultural finance.

Under this chapter the policy sets the following guidelines in relation to the environment.

Environmental Management Principles

Article 125 Kenya faces a number of environmental problems including the degradation of
natural resources such as forests, wildlife, water, marine and coastal resources as well as
soil erosion and pollution of air, water and land.

Article 126 To achieve an integrated and comprehensive approach to the management of

environment and natural resources, all policies, regulations and laws dealing with land
based resources shall be harmonized with the framework established by the Environmental
Management and Coordination Act (EMCA), 1999. This shall be directed by principles
related to general environmental guidelines, environmental assessment and audit, urban
environment problems as well as conservation.

Environmental Guidelines

Article 127 All natural resources shall be vested in the citizens of Kenya through legally
established structures, and where such ownership is vested in any other person or
corporation they shall only hold such natural resources as managers in trust for the people
of Kenya.

Article 128 Policies for the management of land based resources in all sectors shall be
harmonized with the Environmental Management and Coordination Act, 1999.

Article 129 The Government shall domesticate international treaties relating to the
protection of the environment, to which Kenya is a signatory.

Article 130 The Government shall encourage preparation of participatory environmental

action plans by communities living near environmentally sensitive areas to preserve
cultural and social-economic aspects.

Environmental impact Assessment

Definition from EMCA "environmental impact assessment" means a systematic examination
conducted to determine whether or not a program, activity or project will have any adverse impacts
on the environment.
Environmental Impact Assessment (EIA) is a tool that assists in the anticipation and minimization
of the adverse effects of development.
Undertaken in the early stages of project planning and design, EIA seeks to help shape development
in a manner that best suits the local environment and is most responsive to human needs.
The concept of EIA arose from the pollution and degradation of natural resources caused by rapid
population growth, industrialization, agricultural development and technical progress. EIA
recognizes that natural resources are finite and incapable of absorbing the unchecked demands of
modern society.
There is a growing concern in Kenya and at global level that many forms of development activities
cause damage to the environment. This has been aggravated by lack of awareness and inadequate
information amongst the public on the consequences of their interaction with the environment.
Recognizing the importance of natural resources and the environment in general, the Kenyan
Government has put in place wide range of policy, institutional and legislative framework to
address the major causes of environmental degradation and negative impacts on ecosystems
emanating from industrial and economic development programs.

As far as protection and conservation of the environment is concerned, EMCA makes provision for
various instruments. First, it prohibits the carrying out of a number of listed activities without the
approval of the Director-General of NEMA.
It is now accepted that development projects must be economically viable, socially acceptable and
environmentally sound. It is a condition of the Kenya Government to conduct Environmental
Impact Assessment on development Projects.
In the case of development activities which require the approval of the Director-
General, such approval will not be granted in the absence of an environmental impact assessment
(EIA). Upon receiving an EIA study, NEMA is mandated to:-
• publish a notice describing the project
• state where the EIA study is,
• an evaluation or review report may be inspected and a time limit for the submission of
public comments on the study,
• Interested persons must be afforded a reasonable opportunity to submit comments on the
EIA.
EIA provides for public participation in the decision making process in respect of a given proposed
project.
EIA serves the following purposes:-
i) Integration of environmental issues into planning and decision making
Processes;
ii) Anticipation, minimization and mitigation of environmental damage and
Recommendation of alternatives;
iii) Public participation in decision making and environmental conservation.

The steps included in EIA are contained in the Environmental

Management and Coordination Act No. 8 of 1999 (EMCA) at Sections 58 and 138 and the
Environmental (Impact Assessment and Audit) Regulations 2003 (Legal No. 101 of 2003). All
undertakings enumerated in the Second Schedule of EMCA require an Environmental Impact
Assessment project/study report prepared and submitted to the National Environment
Management Authority (NEMA) for review and eventual licensing before the development
commences.
The need for environmental impact assessment (EIA) should be seen in the context of the
precautionary principle. The purpose of such an assessment is to assess the impact of proposed
development activities and ensure that any likely adverse impacts on the environment can be dealt
with.

(The precautionary principle requires that all reasonable measures must be taken to
prevent the possible deleterious environmental consequences of development activities.
Further, it demands that scientific uncertainty should not be used as a reason for not taking
cost-effective measures to prevent environmental harm.)

Environmental Audits
"Environmental audit" means the systematic, documented, periodic and objective evaluation of how
well environmental organization, management and equipment are performing in conserving or
preserving the environment.
EMCA empowers NEMA to carry out environmental audits of all
Activities that is likely to have significant effects on the environment. To facilitate such audits,
EMCA empowers “environmental inspectors” to enter any land or premises with a view to
establishing how far the activities carried out thereon conform to the EIA studies issued in respect
of such land or premises.

Environmental Restoration Orders

EMCA empowers NEMA to issue environmental restoration orders.91
For example, such an order will require the person, to whom it is issued to restore the land
degraded by his or her development activity, including replanting trees. Environmental restoration
orders may also be issued by a court of competent jurisdiction “against a person who has harmed, is
harming or is reasonably likely to harm the environment.”

EMCA also empowers courts to grant environmental easements or environmental conservation

orders

INSTITUTIONAL FRAMEWORK FOR THE MANAGEMENT OF ENVIRONMENTAL MATTERS

Introduction

There is growing concern in Kenya and at global level that many forms of development activities
may cause damage to the environment. This is because of the lack of awareness and inadequate
information among the public on the consequences of their interaction with the environment. It is
also because of the limited local communities’ involvement and participatory planning and
management of the environment and natural resources. The Kenyan government has put in place
wide range of policy, institutional and legislative framework to address the major causes of
environmental degradation and negative impacts of industrial and economic development.

• National Environmental Tribunal (NET)

It is established under Section 125 of EMCA, it exercises jurisdiction under EMCA.

MISSION. To provide accessibility to environmental justice that is expeditious and inexpensive.
VISION Increased compliance with the law for sustainable environmental management
Its purpose is to :- 1) hear appeals from administrative decisions by organs which are responsible
for enforcement of environmental standards. These appeals are mostly from NEMA.2) NEMA may
also refer any matter that involves a point of law or is of unusual importance or complexity to NET
for direction.
An appeal may be lodged by a project proponent upon denial, suspension, limitation or revocation
of an Environmental Impact Assessment license or by a local community upon the grant of an
Environmental Impact Assessment license to a project proponent, such matters should be brought
before the Tribunal within six days after date on which disputed decision was given. This is
according to sec 4 of the National Environment Tribunal Procedure Rules 2003.
Parties have a right to appeal to the High Court; such appeal must be lodged within 30 days after
the Tribunal’s award, order or decision
Composed of A Chairman nominated by the Judicial Service Commission; Two lawyers, one
nominated by the Law Society of Kenya and the other appointed by the Minister; and Two persons
with exemplary academic competence in environmental management appointed by the Minister.
The Tribunal is a quasi-judicial body which makes its own decisions in accordance with the law and
free from any interference. It operates independently of all other institutions established under
EMCA including NEMA and its committees and NEC

• National Environment Action Plan Committee (NEAP)

This is the statutory framework for environmental planning. Environmental Planning is a system of
Planning which runs parallel to the system of physical planning established under the Land Control
Act and the Physical Planning Act.

Established under Section 37 of EMCA, this committee is responsible inter alia, for the development
of a five year national environment action plan. The National Environmental Plan is further
required to analyze the national resources of the country and set out actions required to be taken to
implement environmental measures across the country.

The national environment action plan shall contain among other aspects analysis of the natural
resources of Kenya and their distribution, quantity and various uses. It shall also recommend legal
and fiscal incentives for business that incorporate environmental requirements into their planning
and operational processes as well set out guidelines for the planning and management of the
environment and natural resources.

The NEAP identifies strategies, mitigation measures and activities geared towards improvement of
the affected environment. It highlights priority themes and activities for the country towards
achieving sustainable development. It also identifies responsible agencies or individuals to take
action.

The national environment action plan shall upon adoption by Parliament be binding on all organs of
government as provided under EMCA part IV section 38, subsection (l) . Provincial and district
environmental committees are also required to develop their own five year environmental action
plans which are incorporated in the national environment action plan and submit to the Committee.

The very first National Action Plan was prepared in 1994 prior to the enactment of the
Environmental Management and Coordination Act and one of the actions that were proposed in
that plan was the enactment of an environmental law.

THE NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY (NEMA)

The National Environmental Management Authority (NEMA) is established under Section 7 of
EMCA. NEMA is the principal Government institution charged with the overall supervision and co-
ordination of all matters relating to the environment as well as implementation of all policies
relating to the environment.
NEMA is tasked with the following functions;
• Coordinating the various environmental management activities being undertaken by the
lead agencies e.g. the Standard and Enforcement Review Committee
• Promote the integration of environmental considerations into development policies, plans,
programs and projects, with a view to ensuring the proper management and rational
utilization of environmental resources, on sustainable yield basis, for the improvement of
the quality of human life in Kenya.
• To take stock of the natural resources in Kenya and their utilization and conservation.
• To establish and review land use guidelines.
• Examine land use patterns to determine their impact on the quality and quantity of natural
resources.
• Carry out surveys, which will assist in the proper management and conservation of the
environment.
• Advise the Government on legislative and other measures for the management of the
environment or the implementation of relevant international conventions, treaties and
agreements.
• Advise the Government on regional and international conventions, treaties and agreements
to which Kenya should be a party and follow up the implementation of such agreements.
• Undertake and coordinate research, investigation and surveys, collect, collate and
disseminate information on the findings of such research, investigations or surveys.
• Mobilize and monitor the use of financial and human resources for environmental
management.
• Identify projects and programs for which environmental audit or environmental monitoring
must be conducted under this Act.
• Initiate and evolve procedures and safeguards for the prevention of accidents, which may
cause environmental degradation and evolve remedial measures where accidents occur e.g.
floods, landslides and oil spills.
• Monitor and assess activities, including activities being carried out by relevant lead
agencies, in order to ensure that the environment is not degraded by such activities.
Management objectives must be adhered to and adequate early warning on impending
environmental emergencies is given.
• Undertake, in cooperation with relevant lead agencies, programs intended to enhance
environmental education and public awareness, about the need for sound environmental
management, as well as for enlisting public support and encouraging the effort made by
other entities in that regard.
• Publish and disseminate manual codes or guidelines relating to environmental management
and prevention or abatement of environmental degradation.
• Render advice and technical support, where possible, to entities engaged in natural
resources management and environmental protection, so as to enable them to carry out
their responsibilities satisfactorily.
• Prepare and issue an annual report on the State of Environment in Kenya and in this regard,
may direct any lead agency to prepare and submit to it a report on the state of the sector of
the environment under the administration of that lead agency
NEMA equally has two funds:
• The National Environmental Trust Fund whose object is to facilitate research intended to
further the requirements of the environmental management, capacity building,
environmental awards, publications scholarships and grants.
• The National Environment Restoration Fund; the fund is to be used for the purposes of
controlling and mitigating environmental degradation where the perpetrator cannot be
traced or where there is a special need for the Authority to intervene.
ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT OF 1999(EMCA)

• It was enacted to provide an appropriate legal and institutional framework for the
management of environmental matters.

• It seeks to co-ordinate the activities of the various institutions tasked to regulate the
various sectors.

• These institutions are referred to as Lead Agencies which are defined in section 2 as any
government ministry, department, parastatal and state corporation or local authority in
which any law vests functions of control or management of any element of the environment
or natural resource.

Institutions under EMCA include:

• NATIONAL ENVIRONMENTAL COUNCIL

It Established under sec. 4 of EMCA. It is chaired by the cabinet secretary in charge of the
environment. It is the highest policy making body of EMCA and is responsible for policy formulation
and directions for purposes of EMCA. It sets National goals and objectives

The membership is aimed is aimed at reflecting representation from all relevant ministries of
government, as well as a broad range of other interests. Statutory members include:

-up to 18 Permanent Secretaries

-2 representatives of public Universities,

-2 representatives of specialized research institutions

-3 representatives of the business community, including one oil marketing company representative

-2 representatives of non- governmental organizations in the environmental field

-Co-opted members whose number is to be determined by the Minister, and

-Director –General, who is also the secretary

Apart from the Permanent secretaries and the Director General, the entire members are appointed
by the minister by name for a renewable period of 3 years.

The objective of establishing the Council’s representation was to ensure the participation of all the
stakeholders on environmental management in decision-making at the highest level so as to
facilitate promotion of public awareness on the environment and compliance with statutes that
touch on environmental management and protection.

-In addition to policy formulation, other functions of the Council pertain to appointment of the
seven members to the Board of the National Environment Management Authority (NEMA) whereby
the minister is required to consult the Council for recommendations before such appointments...

The council also considers for recommendations to the Minister of finance now the Cabinet
secretary for finance who or which persons or bodies deserve government tax and other fiscal
incentives or fees that can be used to induce or promote the proper management of the
environment and natural resources ,or the prevention of environmental degradation.
EMCA requires NEMA to act, under the direction and control of the Council, in initiating Legislative
proposals for consideration by the AG to implement such multilateral environmental agreements. It
has not been possible to ascertain whether the Council has provided any form of direction or
guidance to NEMA for purposes of implementing, through legislative proposals, several of the
environmental agreements Kenya is party to.

PROVINCIAL AND DISTRICT ENVIRONMENT COMMITTEES

Sec. 29 (1) of EMCA, the minister of Environment and Natural Resources now cabinet secretary
shall by notice in the gazette appoint Provincial and District Environmental Committees of NEMA In
respect of every Province and District.

These committees assist NEMA in carrying out its functions of management of the environment.

Members of this committee include representatives of farmers or pastoralists, business community,

women and youth.

STANDARD AND ENFORCEMENT REVIEW COMMITTEE (SERC)

This is a committee of NEMA established under sec. 70 of EMCA It is a Technical committee

responsible for formulation of environmental standards, methods of analysis, inspection,
monitoring and technical advice on necessary mitigation measures.

The Permanent secretary is the chairman. Members consist of representatives of various relevant
government ministries and parastatals that are lead agencies as well as those responsible for
matters such as economic planning and national development, finance, labor, public works, law and
law enforcement etc. Other members are from public universities and other government
institutions.

Functions

-Advising NEMA on how to establish criteria and procedures for the measurement of water
quality

-Recommending to NEMA the minimum water quality standards for all waters of Kenya

-Analyzing and submitting to the director General conditions for discharge of effluents into
the environment.

Other Statutory functions include:

Sec 78- Advising NEMA on how to establish criteria and procedures for the measurement of
air quality, the issue of regulations and guidelines and the prescription and submission to
NEMA of draft standards on pesticides and toxic substances (sec 94), recommending to the
authority standards for emission of noise and vibration pollution into the environment (sec.
101), the establishment of standards for ionizing and other radiations (sec 104). The act
therefore confers on the Standards and Enforcement Committee rule making powers.
-standards provide consistency and certainty in decision-making and provide protection of
health and the environment.

-In practice, the draft regulations and standards are adopted by the board of management
for ownership and then forwarded to the Minister for promulgation and gazettement.
Therefore, the committee acts as the technical arm of NEMA in setting these standards.

The following regulations have been promulgated by the minister of Environment and
Natural Resources and in the exercise of the committee to date:

• The Environmental ( Impact Assessment and Audit) Regulations

• Environmental Management and Co-ordination (water quality) standards and

regulations

• Environmental Management and Co-ordination (Waste Management ) Regulations

• Environmental Management and Co-ordination (Conservation of Biological Diversity

and Resources , Access to Genetic Resources and Benefit Sharing) Regulations and

• Environmental Management and co-ordination (Controlled Substances) Regulations, LN

33 OF 2007.

-NEMA is still in the process of developing regulations and Standards on Environmental

Air Quality Standards, Noise Standards Regulations, and Wetlands, River Banks and
Lake Shores Management Regulations.

ENVIROMENTAL COURT

There is established the Environment and Land Court. It is established under Article 162 (2) (b) of
the Constitution of Kenya 2010 which states that Parliament shall establish courts with the status of
the High Court to hear and determine disputes relating to the environment and the use and
occupation of, and title to, land and also the Environmental and Land Court Act.

The Court shall be a superior court of record with the status of the High Court. The Court shall have
and exercise jurisdiction throughout Kenya. The new court would, pursuant to article 162(2)(b),
exclusively deal with original, supervisory, and appellate jurisdiction, since the High Court has now
been expressly denied jurisdiction on those matters by the Constitution. Article 165(5) on the other
hand specifically stated that the High Court shall not have jurisdiction over disputes contemplated
under article 162((2) and these are labor disputed and land and environmental disputes.

Despite the clarity of this provision in the Constitution on the jurisdiction of the High Court we have
had incidences in the recent past where the High Court has ruled that it has jurisdiction to hear
environment and land cases pending the establishment and operationalization of the courts
contemplated under Article 162(2). One of such decision is SAMUEL KAMAU MUHINDI v BLUE
SHIELD INSURANCE CO. LTD [2011] eKLR.
The jurisdiction of the Environment and Land Court is provided under section 13 of the Act.
The Court has original and appellate jurisdiction to hear and determine all disputes in accordance
with Article 162(2) (b) of the Constitution.
PUBLIC COMPLAINTS COMMITTEE
The ideology behind the establishment of the Committee was to have a body that would receive
complaints relating to environmental damage and degradation generally directly from members of
the public, much like an ombudsman. The PCC has powers to investigate complaints against any
person or even against NEMA in relation to the condition of the environment in Kenya or on its own
motion investigate any suspected case of environmental degradation. The PCC is required by law to
submit periodic reports of its activities and reports of its findings and recommendations to the NEC.

In its investigations, the PCC has addressed complaints raised against factories, farmers,
construction sites, churches, bars and restaurants, hotels, night clubs, hospitals, schools and
colleges, local authorities, local and foreign developers, and transport companies.

THE LANDS TRIBUNAL

The Lands Tribunal is established under the Land Disputes Tribunal Act.

All cases of a civil nature involving a dispute as to—

(a) The division of or the determination of boundaries to land, including land held in common;

(b) A claim to occupy or work land; or

(c) Trespass to land, shall be heard and determined by the Tribunal.

It is established under sec 4 which provides that there shall be a tribunal, to be called the Land
Disputes Tribunal, for every registration district, which is now a county.

(2) Each Tribunal shall consist of—

(a) a chairman who shall be appointed from time to time by the District Commissioner from the
panel of elders appointed under section 5; and

(b) Either two or four elders selected by the District Commissioner from a panel of elders appointed
under section 5.

Any party to a dispute under who is aggrieved by the decision of the Tribunal may, within thirty
days of the decision, appeal to the Appeals Committee constituted for the County in which the land
which is the subject matter of the dispute is situated. Either party to the appeal may appeal from
the decision of the Appeals Committee to the High Court on a point of law within sixty days

KENYA WILDLIFE SERVICE

The Kenya Wildlife Service is a Kenyan state corporation that was established in 1990 to conserve
and manage Kenya’s wildlife. It is established under The Wildlife Conservation and Management
Act, 2013 with the mandate to conserve and manage wildlife in Kenya, and to enforce related laws
and regulations. It manages the biodiversity of the country, protecting and conserving the flora and
fauna.
KWS manages most of the National Parks and Reserves in Kenya, the most popular exception being
the Maasai Mara National Reserve, which is managed by local authorities. The money collected as
entrance fees in the parks is used to help the conservation of the plants and animals within the
parks.

Conservation programs
KWS runs specific programs to assist Kenyan species and habitats that are in particular danger.
They have forest and Wetland conservation programs, as well as specific elephant and rhino
projects to help them recover from poaching. The Hirola, which is in danger of extinction, is also
being monitored.
The KWS has gone ahead to organize some functions that aim at raising funds for the conservation
of the environment. One of such functions is the 'Cycle with Rhino' which is held annually. This
year's edition was held on 27th September, 2014 at Lake Nakuru National Park.

Within KWS there are several services, each responsible for a different area of work:
• Community Wildlife Service
• Security Services
• Veterinary Services
• Training

KENYA FOREST SERVICE

Kenya Forest Service is a State Corporation established in February 2007 under the Forest Act 2005
to conserve, develop and sustainably manage forest resources for Kenya's social-economic
development. This is a replacement for the old Forest Department. It is overseen by the Board of
the Kenya Forest Service. The former Forest Department was supported almost entirely from forest
revenues, and was, as a result, chronically underfunded.
Under the 2005 Forest Act this has changed somewhat, with the creation of special funds such as
the Water Towers Conservation Fund, a portion of which goes to forest rehabilitation, and the Mau
Rehabilitation Trust Fund, for the Mau Forest. As of 2003, Kenya had 1.57 million hectares of gazette
forest.
Its core functions include:
• Sustainably manage natural forests for social, economic and environmental benefits.
• Increase productivity of industrial forest plantations and enhance efficiency in wood
utilization.
• Promote farm forestry and commercial tree farming.
• Promote efficient utilization and marketing of forest products.
• Promote sustainable management of forests in the dry lands.
• Protect forestry resources and KFS properties.
• Develop and maintain essential infrastructure for effective forest management and
protection.

MINISTRY OF ENVIRONMENT, WATER AND NATURAL RESOURCES

This is the ministry that principally supervises the function of the environmental institutions in
Kenya. The vision of this ministry is that Kenya should have a clean, safe and sustainably managed
environment. It has the mandate to ensure good governance in line with Article of the Constitution
and also the sustainable use of natural resources in order to secure livelihood and economic
prosperity.
In Pursuit to ensure Kenya becomes a clean, safe, healthy and sustainably managed economy and
country, the Ministry will focus on the following objectives:
(I)Governance and Institutional Framework: Provide policy, legal and integrated planning
framework for sustainable management of the environment
(ii)Protection and Restoration of the environment: Protect and reclaim the environment in order to
establish a durable and sustainable system of development
(iii)Access to water and sanitation: Enhance access to water and sanitation in order to improve
health, and to spur Socio-economic growth and development
(iv)Partnerships and collaboration for resource mobilization and capacity building:
Create partnerships and collaboration to mobilize resources and for capacity building necessary for
sustainable management of the environment
(v)Research, development and technology: Promote research, development and the adoption of
appropriate technology for the management of the environment

NATIONAL BIOSAFETY AUTHORITY

It was established by the Biosafety Act to regulate research and commercial activities involving
Genetically Modified Organisms with a view of ensuring safety of human and animal health and
provision of an adequate level of protection of the environment. The government implemented this
Act because of the ratification of the Cartagena Protocol on Biosafety. This protocol was adopted in
January 2000 and entered into force in September 2003. It is an international agreement which is to
ensure the safe handling, transport and use of Living Modified Organisms resulting from
biotechnology that may have advance effects on biological diversity. This authority is under the
Ministry of Higher Education, Science and Technology.

NATIONAL MINERALS AND MINING POLICY

It was finally drafted in 2010. It deals with the managing of Kenya's resources with the aim of
creating a vibrant mining sector. It has established the following institutions:
• Kenya Geology Survey
• Kenya Minerals and Mining Authority
• Kenya Mining Corporation

VISION 2030
This is a government blueprint that seeks to propel the country's economy into that of a middle
income state. For this to be achieved there are three pillars that the blueprint will operate under.
One of the pillars is the Social pillar and through this strategy Kenya aims to build a just and
cohesive society with social equity in a clean and secure environment. One of its key sectors is the
environment. The vision for the environment sector is a nation living in a clean secure and
sustainable environment. The vision is inspired by the principle of sustainable development and the
need for equity in access to the benefits of a clean environment.
To realize this vision, the focus will be on four strategic thrusts:
• Conservation of natural and strategic resources which include forests, water towers,
wildlife sanctuaries and marine ecosystems. It is the aim of the government to attain the set
global percentage of 10% by year 2030.
• Pollution and waste management
• Arid and Semi- Arid lands and high risk disaster zones
• Environmental Planning and Governance

GREEN BELT MOVEMENT

The Green Belt Movement (GBM) is an indigenous grassroots non-governmental organization based
in Nairobi, Kenya that takes a holistic approach to development by focusing on environmental
conservation, community development and capacity building. Professor Wangari Maathai
established the organisation in 1977, under the auspices of the National Council of Women of
Kenya.
The Green Belt Movement organizes women in rural Kenya to plant trees, combat deforestation,
restore their main source of fuel for cooking, generate income, and stop soil erosion. Maathai has
incorporated advocacy and empowerment for women, eco-tourism, and just economic
development into the Green Belt Movement.
Since Matthai started the movement in 1977, over 51 million trees have been planted. Over 30,000
women trained in forestry, food processing, bee-keeping, and other trades that help them earn
income while preserving their lands and resources. Communities in Kenya (both men and women)
have been motivated and organised to both prevent further environmental destruction and restore
that which has been damaged.
In 2004, Wangari Maathai received the Nobel Peace Prize – becoming the first African woman to
win the Nobel Peace Prize – for her work with the Green Belt Movement. Her book, The Green Belt
Movement is published by Lantern Books.

INTERNATIONAL INSTITUTIONS

Kenya being part of the international community is subject to international law. International
environment law governs the control of environment by individual nations.

UNEP (The United Nations Environment Programme) has a separate structure with a General
Council and a Secretariat. It aims to have an important role in developing international
environmental law and a number of treaties and guidelines have been concluded with its support. It
addresses issues such as climate change, eco system management, environmental governance,
harmful substances and hazardous waste and disasters and conflict.

ILO (International Labour Organisation) was set up to improve the working conditions and
general welfare of workers by improving the working environment.

FAO (The Food and Agriculture Organization) aims to tackle problems of poverty, malnutrition and
hunger. It looks at agricultural problems, desertification and deforestation and the conservation of
natural resources. The Food and Agriculture Organization of the United Nations is a specialized
agency whose goal is to build a world free of hunger, for present and future generations. Since its
establishment in 1945, FAO has been the lead agency for interventions in agriculture, livestock,
forestry, fisheries and rural development. FAO has 187 Member Nations as well as a member
organization, the European Community

CASE LAW

Wangari Maathai v The Kenya Times Media Trust (1989) KLR 267

Prof. Wangari Maathai went to court to stop the proposed construction of a multi-story building at
Uhuru Park.

Court dismissed the suit claiming that she had no legal right to be in court on the matter. Court’s
reasoning was that in cases of violations to the environment affecting the public generally, the
person who has an interest and right to sue is the Attorney General and not a private citizen. The
judge ruled that she had no locus standi as she had not alleged the defendant company was in
breach of any rights in relation to the plaintiff.

Lawrence Nginyo Kariuki v County Council of Kiambu, HC Misc No. 1446 of 1994
Court rejected the plaintiff’s argument that because he was a shareholder of a farming company
that he owned land adjacent to a forest which respondent proposed to alienate, he had sufficient
interest to maintain a suit for restraining orders.

The judge stated that the plaintiff’s interest in the suit was restricted due to statute law.

Prof. Anyang’ Nyong’o and 9 others v AG of Kenya and others (2007) EACJ

The decisions of the East Africa Court of Justice have precedence over decisions of the national
courts on environmental issues.

Rodgers Muema Nzioka and others v Tiomin Kenya Ltd. (Mombasa HCC Suit No. 97 of 2001)

Courts in Kenya have adopted a liberal approach on the issue of locus standi, rejecting the older
strict standards in the Wangari Maathai and Lawrence Nginyo case.

In this case, the court stated that in cases where a person seeks to vindicate his or her right to a
clean and healthy environment, he or she does not need to demonstrate a right or interest in the
land alleged to be invaded.

In 1991, a similar case was experienced in Thika with the Kel Chemicals.

Case on EIA

Tim Busienei and 2 others v Director General, NEMA and another (2007)

The 1st respondent approved the development of a light industry by the 2 nd respondent. The
plaintiffs brought an action claiming the approval was granted without consulting persons living in
the neighborhood and further that the development would interfere with the residents’ quiet
occupation of their residence.

However, there was no evidence to show that the 2 nd respondent’s development would adversely
impact on the environment in ways that could not be mitigated by the measures that had been
proposed by the 2nd respondent in the Environmental Impact Assessment Project Report. The case
was dismissed.

Case on wildlife conservation

Abdikadir Sheika Hassan & others v Kenya Wildlife Service

Civil Case No. 2059 of 1996, High Court of Kenya at Nairobi

Introduction

In this case, the Plaintiff on his own behalf and on behalf of the community sought an

Order from the High Court of Kenya restraining the defendant, a Kenya Government

Agency operating under an Act of Parliament, from removing or dislocating a rare and endangered
species named the "Hirola" from its natural habitat.

Legal Framework

Common Law.
Wildlife Conservation Act.

Held

The Court observed that according to the customary law of the people, those entitled to the use of
the land are also entitled to the fruits thereof including the fauna and flora. While this could be
changed by law, according to the Wildlife Conservation Act, the defendant is required to conserve
wild animals in their natural state. The Court held that the Respondent would be acting outside its
powers if it were to remove any animals/flora from their natural habitat.

Case on mining

Rogers Muema Nzioka & 2 others v Tiomin Kenya Ltd Civil

Case No. 97 of 2001, Kenya, Hayanga J

Tiomin Kenya Ltd, the Defendant was a local company and a fully owned subsidiary of the Canadian
Company Tiomin Resources Incorporated. The company had obtained licenses to prospect for
minerals. The plaintiffs were local inhabitants who sought orders to restrain the defendants from
mining in any part of land in the Kwale District of Mombasa, Kenya. They argued that the licenses
threatened the security of their environment and health and that the environmental impact report
was misleading and inappropriate.

Legal Framework

Land Control Act

The Mining Act

The Environmental Management And Co-ordination Act No. 8 of 1999.

Held

The court found that the defendant had not taken any environmental factors into account in
proposing the project.

Case on Marine pollution

Kenya Ports Authority v East African Power & Lighting Co. Ltd. Court of Appeal, Mombasa 9
March 1982, Civil Appeal No. 41 of 1981

The respondent had been licensed by the appellant to operate a power station inside the port of
Mombasa on the appellant’s land. Following a leakage from the pipes serving the power station, the
waters of the port were contaminated with oil. The appellant sued the respondent for damages in
cleaning up the harbor, which, as pleaded, had been done to avoid the possible combustion of the
oil.

Legal Framework

Kenya Ports Authority Act

Held

The port waters was res nullius (incapable of ownership) and was therefore not the
Property of the appellant. Moreover, no actual damage had been caused to any of the

Appellant’s property from the pollution of the port waters.

Incidences

Marine pollution;

It is majorly caused by pollution from ships especially oil tankers. In July 1993, a Liberian-
registered oil tanker Ms. Sonata went underground with a load of 80,000 metric tons of oil in the
high seas of Mombasa. This signaled a high degree of disaster preparedness which Kenya has not
taken appropriate measures to curb.

Hazardous wastes;

In 1991, chlorine compounds were dumped into Lake Victoria causing the death of aquatic life.

Recently, an incident near Port Reiz in Mombasa was described as “Minor Bhopal” by residents who
inhaled a yellowish gaseous emission from containers in an individual’s backyard. Upon adoption of
the Basel Convention in March 1989 and the Bamako Convention in January 1991, the Kenyan
Government has taken the decision to prohibit all forms of import of hazardous wastes into the
country.

Air pollution;

In Webuye, the paper and pulp factory has saturated the air with emissions of sulphur compounds
whose precipitates have turned all the trees yellow and are eroding the corrugated iron roofs
REFERENCES

Environmental Governance in Kenya

The Making of a Framework Environmental Law in Kenya, UNEP

Kenya Law Reports, kenyalaw.org

UNEP Compendium Summaries Judgments on Environment-related cases

Mining Act cap 306

Penal Code

Physical Planning Act Cap 242

Radiation Protection Act Cap 243

Maritime Zones Act cap 371