GROUP 2

ENVIRONMENTAL LAW IN KENYA

OUTLINE OF PRESENTATION
Kenyan International Instruments on Environmental
Law
Constitutional and statutory Provisions
Institutional Framework
Judicial Decisions
Kenyan International Instrument on Environmental
Law
Kenya has adopted and ratified a number of treaties
regulating environmental matters of national and global
concern.
Some of the international instrument relevant to Kenya
are discussed as follows:
African Convention on the Conservation of Nature and Natural
Resources, 1968 (Revised edition) 2003.
Adopted by African States in Addis Ababa on Jan 17th 1969.
Kenya ratified it on may 12th 1969. it entered into force on
March 15th 1972.
Objectives:
Enhance environmental protection
Foster conservation and sustainable use of natural resources
harmonize and coordinate policies in these fields with a view of
achieving ecologically rational, economically sound and socially
acceptable development policies and programmes.
 Parties are required to adopt and implement all measures
necessary to achieve its objectives through preventive
measures and the application of the precautionary principle
with due regard to ethical and traditional values as well as
scientific knowledge in the interest of present and future
generations.
 Bamako Convention on the Ban of the Import into Africa and
the Control of transBoundary Movement and Management
of hazardous Wastes within Africa, 1991
Adopted on Jan 30 1991 in Bamako, Mali and entered into
force on April 22nd 1998. Kenya acceded to it on Dec 17th 2003.
Key pillars of the convention:
a. Hazardous waste Import Ban
b. Ban on dumping hazardous waste at sea and internal waters
c. Waste generation in Africa
d. Adoption of precautionary measures
 Convention for the Establishment of Lake Victoria Fisheries
Organization, 1994
Adopted on June 30th 1994 and ratified by Kenya on May 24th
1996
The convention establishes the lake Victoria fisheries
organization whose main objectives are:
Foster cooperation among contracting parties
Harmonize national measures for the sustainable utilization of
the living resources of the lake
Develop and adopt conservation and management measures
The organization has the functions and responsibilities to:
 promote the proper management and optimum utilization of the fisheries
and other resources of the Lake;
enhance capacity building of existing institutions and develop additional
institutions dedicated to, or likely to contribute to, the purposes of the
Convention in cooperation with existing institutions established in or by the
Contracting Parties and with such international, regional or non-governmental
organizations as may be appropriate;
provide a forum for discussion of the impacts of initiatives dealing with the
environment and water quality in the Lake basin and maintain a strong liaison
with the existing bodies and programs;
provide for the conduct of research concerning the waters of Lake Victoria,
including without limitation the quality of such waters, in particular with
respect to supporting the living resources of the Lake and the nature, extent
and pathways of its pollution and other forms of environmental degradation;
encourage, recommend, co-ordinate and, as appropriate, undertake training
and extension activities in all aspects of fisheries;
consider and advise on the effects of the direct or indirect introduction of
any non- indigenous aquatic animals or plants into the waters of Lake
Victoria or its tributaries and to adopt measures regarding the introduction,
monitoring, control or elimination of any such animals or plants;
serve as a clearing-house and data bank for information on Lake Victoria
fisheries and promote the dissemination of information, without prejudice to
industrial property rights, by any appropriate form of publication.
Convention for the Protection of New Plant varieties
There have been 3 versions of the convention; 1961, 1978 and
1991.
Kenya acceded to the UPOV 1978 convention on April 13th
1999.
Member states are required to adopt measures that ensure
protection of plant varieties is extended to the largest possible
number of botanical genera and species.
Article 4(3)- each member state is required to protect a
minimum of five species on accession to the convention
Kenya has endeavored to incorporate the provisions of this
convention into its domestic legislation- kenya Seeds and plant
Varieties Act.
Convention on Trade in Endangered Species of Wild Fauna and
Flora (CITES)
Signed in Washington USA on 3rd March 1973 and entered into
force on 1st July 1975. ratified by Kenya on 13th Dec 1978.
There was a subsequent amendment to the convention and
Kenya ratified it on 25th Nov 1983.
CITES aims to prevent international trade from threatening the
survival of wild Fauna and Flora.
It prohibits trade among its parties and non-parties on
endangered species listed under it. It requires parties to
establish national managements and scientific committees to
administer the protection and regulatory system
 Convention for the protection, Management and
development of the marine and coastal Environment of the
eastern African Region, 1985(Nairobi Convention)
Adopted at Nairobi on 21st June 1985 to apply to the east
African Region.
Article 4(1)- imposes obligations on the contracting parties to
take all appropriate measures in conformity with International
Law and in accordance with the convention and those of its
Protocols in force to which they are party, to prevent, reduce
and combat pollution of the convention area and to ensure
sound environmental management of natural resources using
the best practicable means at their disposal in accordance
with their capabilities
 It also obligates state parties to take the appropriate measures
to prevent pollution caused by discharges by ships; pollution
by dumping of waste and other material at sea.
Vienna Convention for the Protection of the Ozone
Layer
 Adopted on March 22nd 1985 in Vienna, Austria and
entered into force in the same year. Kenya ratified it on
November 9th 1988. It was the first convention to achieve
universal ratification which can be largely attributed to the
role the ozone layer plays in preservation of life on earth.
Objectives:
Promote cooperation by means of systematic observation
Research and information exchange on the effects of human
activities on the ozone layer
Adopt legislative or administrative measures against activities
likely to have effect on the ozone layer and elimination of
such activities.
 The Montreal Protocol on the Substances that Deplete the
Ozone Layer was adopted to advance the goals of the
convention.
According to the preamble of the protocol, parties are called
to be mindful of their obligations under the convention and to
take appropriate measures to protect human health and the
environment against activities which modify or are likely to
modify the ozone layer.
To emphasize on its objectives, no reservations are allowed to
any of the provisions contained in the protocol
Kenya ratified both instrument s in 1988
The Basel Convention on the Control of Transboundary
Movements of Hazardous waste and their Disposal- 1989
Main objective is to effectively protect human life and the
environment by reducing the generation of these waste to a
minimum in terms of quantity or/and potential . Management
of this waste and their disposal should be consistent with the
protection of human health and the environment.
Kenya ratified this in 2000.
Obligations of member states:
To ensure the generator carries out duties with regard to the
transport and disposal of the waste in a manner consistent with
the protection of the environment. (Polluter pays Principle).
States are to dispose of waste in their own jurisdiction. This is an
incentive for states to reduce the rate of generating hazardous
waste or do away with the production altogether.
 Duty to disseminate information about the proposed
transboundary movement to the concerned parties in order
to protect the parties from giving consent based on an
informed point of view.
UN Convention on Biological Diversity
 Biological diversity is a common concern for human kind
and seen that it was being reduced by human activities,
there was need for legislation to prohibit these activities.
Adopted in 1992 and came into force in 1993.
Kenya ratified it in 1994.
The instrument is conscious on the importance of
biological diversity for evolution and for maintaining life
sustaining systems of the biosphere.
Even though states have sovereign right over their
biological resources, they are called to conserve and exploit
them in a sustainable manner. This in accordance with the
charter of the United nations and the principle of
International Law.
 Member states are obligated to ensure that activities within
their jurisdiction or control do not cause damage to the
environment of other states.
Objectives:
Conservation of biological diversity
Sustainable use of its components
Equitable sharing of the benefits arising out of utilization of genetic
resources.
NB// substantial provisions in Kenya EMCA have been borrowed
from the convention. It can thus be considered that Kenya has
sought to implement the provisions of the convention through
the statute.
 The Cartagena protocol on Biosafety to the Convention on
Biological Diversity was adopted due to the rapid expansion of
modern bio-technology and the growing public concern over
its potential adverse effects on biological diversity and human
health.
It was adopted in 2000 and Kenya ratified in 2002
The Protocol focused on trans-boundary movement of any
living modified organism resulting from modern biotechnology
that may have adverse effects on the conservation and
sustainable use of biological diversity.
Main objective of the Protocol- to ensure safe transfer,
handling and use of living modified organisms resulting from
modern biotechnology. Informed by the precautionary
approach in the Rio Declaration on Environment.
 Parties are obligated to exchange accurate information on this
living modified organisms and give notice to the party of
import before exporting organisms.
Article 15- the party of export is mandated to carry out risk
assessment in order to evaluate the possible effects to the use
and conservation of the biological diversity

Reservations are not allowed.

United nations Framework Convention on Climate Change
Adopted in 1992 and came into force in 1994. Kenya ratified it
a few months down the line.
The convention was necessitated by the growing increase of
the levels of greenhouse gases which consequently affected
natural eco-system and humankind
The global nature of climate change called for the widest
possible cooperation of all states and their participation in an
effective and appropriate international response in accordance
with their common but differentiated responsibilities,
respective capabilities and their socioeconomic conditions.
 The instrument was informed by other international
instruments: Charter of the UN 1945, Declaration of The
UN Conference on the Human Environment 1972, Vienna
Convention on the protection of the Ozone Layer and the
Montreal Protocol on Substances that deplete the Ozone
Layer 1987 indicating that the framework was well founded
from a legal perspective.
The convention is also backed by various environmental
principles: sustainable development, precautionary
principle and the principle of common but differentiated
responsibilities.
 Convention on Conservation of Migratory Species of Wild
Animals
adopted in 1979 and came into force in 19983. Kenya ratified it
in 1999.
The adoption was influenced by the desire to have states
protect all the migratory species of wild animals within their
jurisdiction. This called for cooperation among states in which
these animals would spend any part of their life cycle.
Main objective- to ensure that party states who are range
states acknowledge the importance of migratory species and
restore their conservation status where deemed unfavorable
or maintain the conservation status .
General reservations are not allowed but specific reservations
may be allowed.
Stockholm Convention on Persistent Organic Pollutants
Adopted in May 22nd 2001 and entered into force in May 2005.
Convened due to the growing accumulation of organic
pollutants that posses toxic properties and resist degradation
into the terrestrial and aquatic ecosystems.
Objectives:
Protection of human health and environment from POPs
Provision of financial resources by developed countries to help
curb production and intentional use of POPs.
Disposal of POPs in environmentally sound manner.
 Rotterdam Convention on the Prior Informed Consent for
Certain Hazardous Chemicals and Pesticides in international
Trade
An initiative of the UN adopted in Sep 1998 and entered in to
force on Feb 2004. Kenya ratified it in Feb 2005.
Objectives:
Promoting exchange of information among member nations on
hazardous chemicals in their jurisdictions
Dissemination of decisions between member states on the use of
hazardous chemicals
Promote shared responsibility and cooperative effort among
parties to ensure protection of human health and environment.
 Ramsar Convention on Wetlands (Ramsar Convention on
Wetlands of International importance)
Regarded as the oldest global intergovernmental
environmental agreement.
Adopted in Feb 1971 as a result of a growing concern to
protect wetlands that are a great source of fresh water which
is vital for survival of flora and fauna. Entered into force in Dec
1975.
Party states were required to present all wetlands within their
jurisdiction and they were to be called the Ramsar sites which
were to be conserved and their sustainable use promoted
through local and national action and international
cooperation.
 3 main pillars of Ramsar Convention:
Parties to work towards the wise use of wetlands
State parties to designate suitable wetlands for list of
Wetlands of International Importance (Ramsar Sites).
To cooperate internationally on trans-boundary wetlands.
Shared wetland systems and species.
International Plant Protection convention
adopted on Dec 1951 Rome Italy. It is a multilateral treaty for
international cooperation on plant protection from pests
convened by FAO.
The main objective of the treaty is to prevent trans-boundary
movement of pests to areas where they are not present
through provision of measures that governments should use
to protect their plant resources from harmful pests.
The Commission on Phytosanitary Measures was created to
oversee the implementation of the convention.
 Responsibilities of the commission:
Protect sustainable agriculture and enhance global food
security through the prevention of pest spread.
Protect the environment, forests and biodiversity from
plant pests.
Facilitate economic and trade development through the
promotion of harmonized scientifically based phytosanitary
measures.
Develop phytosanitary capacity for members to accomplish
the above.
Agreement on the Conservation of African Eurasian
Migratory water Birds (AEWA)
 Its an intergovernmental treaty dedicated to the
conservation of migratory water birds and their habitats
across Africa, Europe, Middle East, Central Asia, Greenland
and Canadian Archipelago.
Adopted on June 1995 and entered into force Nov 1999.
It brings together countries with the aim of establishing a
collective conservation and management of migratory
water birds. It takes into account the need for a good
habitat when breeding and need for suitable sites during
their annual migration.
 The AEWA action plan outlines measures that ought to be
taken by the contracting party:
Management of human activities to prohibit interference
with water birds migration
Public education and awareness on protection of water
birds
Extensive research and monitoring of mater birds
 Agreement on the establishment of Indian Ocean Tuna
Commission
Conceived in Nov 1993 by FAO and entered into force March
1996.
Purpose of the commission- coordinate the regulation and
management of Tuna and Tuna like species in the Indian
Ocean.
Objectives of the commission:
Promote cooperation among members in order to ensure
appropriate management .
Conservation and optimum utilization of stocks
Encouraging sustainable development of fisheries based on such
stocks
Langkawi Declaration on the Environment
Issued by the heads of state of the commonwealth nation on
Oct 1989 at Langkawi Malaysia.
Was the first time the commonwealth leaders were taking a
stand on environmental issues.
Declarations issued due to the realization that the continued
deterioration of the environment posed a threat to the
present and future generation
Main environmental problems listed in the declaration :
Depletion of the ozone layer
Marine pollution
Greenhouse effect
Land degradation
species extinction
Convention Concerning Protection of world
Cultural and Natural Heritage
Adopted by general conference of its 17th session in Paris on
16th Nov 1972. Kenya ratified on 5th May 1991.
In its preamble, the state parties noted that cultural heritage
are increasingly threatened with destruction, not only by
traditional causes of decay, but also by changing social and
economic conditions which aggravate the situation with even
more formidable phenomena of damage or destruction.
Considered deterioration or disappearance of any item of the
cultural or natural heritage constitutes a harmful
impoverishment of heritage of all nations in the world
 Article 1- Cultural heritage includes monuments, sculptures,
paintings and structures of archeological nature . Fort Jesus.
Article 2- Natural heritage include natural features consisting
of physical and biological formations or group of such
formations of outstanding universal value from aesthetic of
scientific point of view.
Geological and physiographical formations and precisely
delineated areas which constitute the habitat of threatened
species of animals or plants of outstanding universal value from
the point of view of science or conservation
Natural sites or precisely delineated natural areas of outstanding
universal value from the point of view of science, conservation or
natural beauty.
Natural heritage include Mt. Kenya, Lake Bogorai etc.
 Article 3- it is the duty of each state party to this convention to
identify and delineate them, different properties situated on
its territory mentioned in articles 1 and 2.
Examples of cultural and natural heritage destroyed:
2000 years old Syrian Iconic Arch of Triumph destroyed by
ISIS militants as they claimed its sacrilegious. UNESCO and
UN Heritage Agency called the destruction an intolerable
crime against civilization.
In Kenya- farming on and encroachment of Mt Kenya.
Arch of Triumph
 Convention on Protection of Marine Pollution and Dumping of
Wastes and other Matter- London Convention
In force since 1975. Kenya ratified on 7th January 1976.
Objective- to promote the effective control of all sources of
marine pollution and to take all practicable steps to prevent
pollution of the sea by dumping of wastes and other matter .
In the preamble, parties recognize that marine environment
and living organisms which it supports are of vital importance
to humanity and all people have an interest in assuming that it
is so managed that its quality and resources are not impaired.
 Article 1- contracting parties shall individually and collectively
promote effective control of all sources of pollution of the
marine environment and pledge themselves especially to take
all practicable steps to prevent the pollution of the sea by
dumping waste and other matter that is liable to create hazard
to human health, to harm living resources and marine life, to
damage amenities or to interfere with other legitimate uses of
the sea.
Article 3 dumping means deliberate disposal at sea of waste
or other matter from vessels, aircrafts or other man-made
structures at sea. Also includes any deliberate disposal at sea
of vessels, aircrafts or other man-made structures .
International Convention for the Prevention of Pollution From
ships (MARPOL 73/78)
MARPOL was adopted on the 2nd Nov 1973 at IMO and
covered pollution by oil, chemicals, harmful substances in
packaged form, sewage and garbage.
Protocol of 1978 was adopted at a conference on tanker safety
and pollution prevention in Feb 1978 in response to a spate of
tankers accidents from 1966-1977.
The convention includes regulations aimed at preventing and
minimizing pollution from ships both accidental and that from
routine operations . It also includes 6 Annexes:
i. Regulation for Prevention of Pollution by Oil.
ii. Regulation for Control of Pollution by Noxious Liquid
Substances in bulk.
iii. Prevention of Pollution by Harmful Substances Carried by
Sea in Packaged Form.
iv. Prevention of Pollution By Sewage from Ships.
v. Prevention of Pollution by Garbage from Ships.
vi. Prevention of Air Pollution from Ships.

NB/ Kenya ratified the convention on 15th Dec 1992.

United Nations Convention on the Law of the Sea
Resulted from 3rd United Nations Conference on Law of the
Sea 10th Dec 1982.
The treaty addresses a number of topics including navigation
rights, economic rights, pollution of the seas, conservation of
marine life, scientific exploration, piracy etc.
Environmental issues addressed in part XII named Protection
of Marine Environment.
Article 192- states have an obligation to protect and preserve
the marine environment
Article 193- states have the sovereign right to exploit their
natural resources pursuant to their environmental policies and
in accordance with their duty to protect the environment.
 Article 194- measures to prevent , reduce and control
pollution of the marine environment
Article 207- Land based pollution- nations are required to
adopt laws and regulations to prevent, reduce and control
pollution of the marine environment from land based sources.
This article specifically calls upon nations to regulate pollution
that comes into the ocean from rivers, estuaries, pipelines and
outfall structures which are the primary sources of land based
pollution in the marine environment.
Article 211- requires nations to pass laws and regulations
governing pollution from ships flying the nations flag.
Kenya Maritime authority act
Prevention and Control of marine Pollution bill 2014
Lusaka Agreement on Cooperative Enforcement Operations
Directed at Illegal Trade in Fauna and Flora
Article 2- the objective of this agreement is to reduce and
ultimately eliminate illegal trade in wild flora and fauna and to
establish a permanent task force for this purpose.
Article 4- obligations of parties include
Individually and/or jointly take appropriate measures in
accordance with the agreement to investigate and prosecute
cases of illegal trade
Each party shall cooperate with each other and the task force
and shall provide the task force on regular basis with relevant
information and scientific data relating to illegal trade
 Each party is also required to encourage public awareness
campaigns aimed at enlisting public support for the objective
of the agreement and the said campaign shall be so designed
to encourage public reporting of illegal trade.
Each party shall adopt and enforce legislative and
administrative measures for the purpose of giving effect to the
agreement
Kenya ratified this agreement on 17th Jan 1997 and in giving
effect to it, we have the Kenya Wildlife Act.
United Nations Convention to Combat Desertification in those
countries Experiencing Serious Drought and/or
Desertification Particularly in Africa- Paris 1994.
According to the preamble, parties affirm that human beings
in affected or threatened areas are at the center of concern to
combat desertification and mitigate the effects of drought
They also acknowledge that desertification and drought are
problems of global dimension in that they affect all regions of
the world and that joint action of international community is
needed to combat desertification and/or mitigate effects of
drought.
 Objective: combat desertification and mitigate the effects of
drought in countries experiencing serious drought and
desertification particularly in Africa through effective action at
all levels supported by international cooperation and
partnership arrangements in the framework of an integrated
approach which is consistent with agenda 21, with a view to
contributing to the achievement of sustainable development
in affected areas.
Achieving this objective will involve long term integrated
strategies that focus simultaneously in affected areas, an
improved productivity of land, and the rehabilitation,
conservation and sustainable management of land and water
resources, leading to improved living conditions particularly at
the community level
CONSTITUTIONAL AND STATUTORY PROVISIONS
Constitution.
Environmental Law was first fully codified in Chapter V of
the 2010 Kenyan Constitution.
The 1969 Kenyan Constitution was not conclusive enough
in providing for the required guidelines with regard to
Environmental conservation and management.
Chapter IX of the 1969 Constitution only defined and
provided for provisions dealing with Trust Lands but not
environment and natural resources as is in the 2010
Constitution.
In incorporating the provisions touching on the
environment and natural resources into the 2010
Constitution, the principles brought out in the Rio
Conference (UNCED) 1992 were the key reference points.
 The different provisions of this Constitution are in line with the
principles outlined in the different Environmental Conferences.
Article 42 states that every person has the right to a clean and
healthy environment which includes; a) to have the environment
protected for the benefit of present and future generations
through legislative and other measures.
Article 60(1) of the Constitution states that Land in Kenya shall
be held, used and managed in a manner that is equitable,
efficient, productive and sustainable and in accordance with the
principles stated herein.
These two provisions go in line with the principle of ensuring
sustainability and inter-generational equity.
The principle requires that the management and utilization of
the environment and natural resources must be done so as to
meet the development interests of present generations without
jeopardizing the interest of the future generation to enjoy the
same.
 The requirements of this principle are therefore enshrined
in these provisions of the constitution.
Part 2 of Chapter V mainly deals with environment and
natural resources which is the main focus with regards to
Environmental Law.
Article 69(1) lays certain obligations on the state in respect
of the environment.
The different obligations include; (a) ensure sustainable
exploitation, utilization, management and conservation of
the environment and natural resources and ensure the
equitable sharing of the accruing benefits. (b) work to
achieve and maintain a tree cover of at least ten per cent of
the land area in Kenya (d) encourage public participation
in the management, protection and conservation of the
environment.
 Sub-section 2 of the article lays an obligation on the people
to cooperate with state organs and other persons to protect
and conserve the environment and ensure ecologically
sustainable development and use of natural resources.
This article mainly brings out the principle of promotion of
public participation by placing obligation on the people to
cooperate with state organs in ensuring a sustainable
environment.
Article 70(1) provides for the enforcement of
Environmental Rights recognized and protected under
Article 42 of the Constitution.
If the rights and denied or violated, a person may seek
redress in court in addition to any other remedies that are
available in respect of the same matter.
 Sub section 2 of the article brings out the principle of
precautionary measures in that;(a) the court may prevent,
stop or discontinue any act or omission that is harmful to the
environment, (b) compel public officers to take measures to
prevent and discontinue any act or omission harmful to the
environment, (c) provide compensation for any victim of a
violation of the right to clean and healthy environment.
Precautionary measures principle requires that every
precaution must be taken to prevent or mitigate possible
deleterious environmental consequences of socio- economic
activities.
The Constitution has therefore tried to give guidelines for
mitigating these kind of activities in the above section.
 Physical Planning Act.
The statute is in line with the principle of integration of
environmental considerations and development , planning and
management.
This principle requires that a broadened role for the line department
in terms of expertise to carry out the primary responsibilities for the
precautionary measures.
The Act was mainly enacted to help plan for initiatives that would
help in the conservation of the environment.
Among the notable initiatives that are the main mandate of this act
are zoning and sub-division.
Zoning is an essential tool with regard to the existence of forest
lands. It plays a key role in ensuring that land with water catchment
in them are not devalued or degraded. It comes out as an important
instrument for managing and protecting fragile eco- systems.
 Sub- division on the other hand ensures the apportioning of
land in a manner that best suits its intended purpose e.g. it is
from sub- division of land that particular portion is used in an
intended manner without necessarily affecting neighboring
lands e.g. Industrial Area.
Sub division is provided for under section 41 of the Act which
requires that no private land within the area of authority shall
be divided except in accordance with the local physical
development plan approved in relation to that area.
 To ensure these are well carried out, the Act in the different
sections provide for the guidelines that are codified and
formalized to ensure the environment is well conserved.
Part III of the Act establishes the Physical Planning Liaison
Committees
The compositions of these committees are representatives
from the majority of the environmental sectors we have.
(a) the Permanent Secretary, who shall be the Chairman;
(b) the Director who shall be the secretary;
(c) the Permanent Secretary for the time being in charge of the
Provincial
Administration;
(d) the Commissioner of Lands;
(e) the Director of Medical Services;
(f) the Director of Surveys to it by any other committee.
 (g) the Director of National Environmental Secretariat;
(h) The Director of Urban Development;
(i) the Director of Housing;
(j) the Director of Agriculture;
(k) the Director of Industry;
(l) the Director of Education;
(m) the Director of Water Development;
(n) the Chief Engineer (Roads), Ministry of Public Works and Housing;
(na) the Director-General of the Kenya National Highways Authority;
(nb) the Director General of the Kenya Rural Roads Authority;
(nc) the Director-General of the Kenya Urban Roads Authority;
(o) the Chief Architect, Ministry of Public Works and Housing; and
(p) a Registered Physical Planner in private practice duly appointed
by the Minister on the advice of the Physical Planners Registration
Board.
 This representation help set up a good planning scheme that
would help conserve the environment without one activity
affecting the environment.
The composition of these committees are set out in section 8.
Section 10 of the Act sets out the functions of Liaison
Committees with the main one being to resolve Physical
Planning matters referred
Part IV of the Act touches on the physical development plans
which in section 16 provides for the purposes of the regional
physical development plans such as improving the land and
providing for the proper physical development of such land,
and securing suitable provision of transport , industrial,
commercial and recreational areas.
Part V of the Act provides for the powers of the local authority
section 29;
 (a) to prohibit or control the use and development of land and
buildings
in the interests of proper and orderly development of its area;
(b) to control or prohibit the subdivision of land or existing plots into
smaller areas;
(c) to consider and approve all development applications and grant
all
development permissions;
(d) to ensure the proper execution and implementation of approved
physical development plans;
(e) to formulate by-laws to regulate zoning in respect of use and
density
of development; and
(f) to reserve and maintain all the land planned for open spaces,
parks, urban forests and green belts in accordance with the
approved physical development plan.
 This section is in line with the principle of precautionary measures in
that the local authorities have the power to control the use of land
and provide a plan for the development in order to conserve the
environment.
Section 36 provides for the environmental impact assessment; If in
connection with a development application a local
authority is of the opinion that proposals for industrial
location, dumping sites, sewerage treatment, quarries or
any other development activity will have injurious impact
on the environment, the applicant shall be required to
submit together with the application an environmental
impact assessment report.
This authority given to the local authorities helps in the
maintenance and conservation of the environment in that the
power to plan and put in order the various development plans rests
with the local authorities.
 Petroleum( Exploration and Production) Act.
This Act provides for regulations in section 6. it provides that;
(1) Subject to this Act, the Minister may make regulations for
or with respect to
(a) the opening of areas for petroleum operations;
(c) the manner in which applications may be made for
petroleum agreements;
(d) the periods of time for exploration and production;
 (k) the conduct of petroleum operations, conservation of
petroleum resources and measures relating to safety,
environmental protection and the avoidance of waste,
pollution and accidents;
The Act majorly mandates the minister in charge to protect
the environment by avoiding waste, pollution and accidents
related to petroleum products.
ENVIRONMENTAL MANAGEMENT AND COORDINATION
ACT
Enacted in 1999 as the supreme law in
environmental management
Provides for the harmonization of about 77 statutes
that address aspects of the environment
Provides an institutional framework and procedures
for management of the environment
EMCA
Aimed at ensuring that our activities do not compromise
the capacity of the resource base to meet the needs of
the present generation as well as future generations
Section 3- every person in Kenya is entitled to a clean and
healthy environment and has a duty to safeguard the
environment.
Establishes NEMA to exercise general supervision and
coordination over all matters relating to the environment;
section 9 (3) details the statutory functions of NEMA
Provisions of EMCA
Part IV provides for environmental planning which is
defined as long term and short term planning that
takes into account environmental exigencies under
Section 2
This mandate is undertaken by the National
Environmental Plan Committee through
environmental action plans.
Provisions of EMCA
Part V provides for the protection of the environment
including wetlands, hilly & mountainous areas, forests,
biological resources, energy, the coastal zone and the
ozone layer
 ENVIRONMENTAL IMPACT
ASSESSMENT
Procedure for evaluating the likely impact of a proposed
activity on the environment.
Discussed in Part VI of the act from section 58- 67.
Provides decision makers with information about the
possible effects of a project to the environment before
authorizing it to proceed
Need for EIAs was expressed in Principle 17 of the 1992 Rio
Declaration on Environment and Development which
states: EIA as a national instrument shall be undertaken
for proposed activities that are likely to have a significant
impact on the environment and are subject to a decision by
a competent authority.
EIA Process.
1.
Screening
8
Implementation 2 Scoping
and follow-up

3 Impact
7 Decision making analysis

4
Mitigation
6 Review of EIA
and impact
quality 5 Reporting
managemen
to catalogue
t
and track
the results
of EIA
Principles of an effective EIA
Provides for an opportunity for scrutiny and
participation in decision making
Introduces elements of independence and impartiality
Facilitates better formed judgments when balancing
environmental and developmental needs
At the international level, may alert governments and
international organizations of the likelihood of trans
boundary harm
Contributes to implementation of national policies on
sustainable development and precautionary action.
ENVIRONMENTAL AUDIT
Section 2- defines EA as the systematic, documented,
periodic and objective evaluation of how well an
environmental organization, management and equipment
are performing in conserving or preserving the
environment.
NEMA has responsibility of carrying out environmental
audits
Carried out on ongoing projects commenced prior to
coming into force of the regulations or new projects
undertaken after the completion of an EIA. (Regulation
31(1) Environmental (Impact Assessment and Audit)
Regulations, 2009)
 Principles of an Environmental Audit
Applied as a tool to achieve sustainable development
applied as a tool for implementation of environmental
management
Should be integrated in the project life cycle to ensure that
environmental information is provided at the appropriate
stages
Applied to all proposed actions likely to have a significant
adverse effect on the environment
Should include an analysis for feasible alternatives to the
proposed action
Should include meaningful opportunities for public
participation
Should integrate information on social, economic and
biophysical aspects.
Environmental Monitoring
Definition - Continuous, periodic determination of
actual and potential effects of any activity or
phenomenon on the environment whether short term
or long term (Section 2)
Is carried out by NEMA in consultation with various
lead agencies by an environmental inspector who has a
right to enter upon any land or premises for the
purpose of carrying out activities related to the
environmental monitoring ( section 69)
Regulations pursuant to EMCA
Environmental (Impact Assessment and Audit)
Regulations, 2009
Environmental Management and Coordination
(Wetlands, River Banks, Lake Shore and Sea Shore
Management) Regulations, 2009
Environmental Management and Coordination (Noise
& Excessive Vibration Pollution) (Control)
Regulations, 2009
Environmental Management and Coordination
(Water Quality) Regulations.
Environmental Impact Assessment
Regulations
Contains rules relative to content and procedure of an
EIA ,Environmental Audit & Environmental
Monitoring, and strategic environmental assessment .
Prohibits a licensing authority in Kenya to issue
trading, commercial or development permit or license
for any project likely to have cumulative or significant
negative impact on the environment before it ensures
that a strategic environmental plan encompassing
mitigation measures and approved by the authority are
in place. (Regulation 4(3))
Noise Regulations
Created in exercise of powers conferred by Section 147 of
EMCA.
Prohibit the production of any loud, unreasonable,
unnecessary, or unusual noise which annoys, disturbs,
injures or endangers the comfort, repose, health or safety of
others and the environment.
The regulations do not apply to noise alerting people of an
emergency or in performance of an emergency response or
to noise produced in connection with protection of health,
safety of residents or their property, or to warning devices
such as fire & ambulance sirens, train horns, parades and
national celebrations.
Water Quality Regulations
Protection of sources of water for domestic usage;
Regulation of water for agricultural use, industrial use and
effluent discharge
This is by ;-
Regulating standards for sources of domestic water
Quality monitoring of sources of water
Regulating standards for effluent discharge to the
environment
Setting up a monitoring guide for discharge into the
environment.
Regulating standards for effluent discharge to public
sewers.
Radiation Protection Act No 20 of
1982
Kenya joined a movement allowing it to use nuclear energy
for peaceful purposes in the year 1982
This movement was led by the International Atomic
Energy Agency
Section 4 of the Act establishes the Radiation Protection
Board
Functions of this board include;
Advising the minister on matters relating to radiation
protection and radioactive waste disposal
keeping a register of individuals owning irradiating
devices, radioactive materials imported into or
manufactured in Kenya and of premises licensed to dispose
of radioactive waste
 Section 8- Individuals involved in any activities
relating to the use of irradiating devices or radioactive
materials can only do so in accordance with a license
issued under the Act
Section 12(2)- owners of radiation facilities are to
ensure that radioactive wastes are only disposed in
accordance with the licenses issued for disposal
purposes
Section 16-It is an offence to contravene Provisions of
the Act with regard to use or disposal of irradiating
devices, radioactive materials or being in possession of
such radioactive materials without a license
Penalty: Imprisonment term not exceeding 2 years
Section 18-Consultation between the Minister and the
board on proper method of disposing radioactive
waste products from any source.
 Improper disposal of radioactive wastes has both
environmental risks and health risks
Environmental- Radioactive particles such as
Chernobyl Digsters result to the drying up of the
leaves of trees and the trees hence reducing forest
cover.
Health-Exposure to dangerous radioactive wastes may
lead to somatic effects hence leading to cancer.
Biosafety Act No 2 of 2009
Biosafety- The avoidance of risk to human health and
safety and conservation of the environment as a result of
the use of genetically modified organisms.
One Key object of the Act; to ensure adequate levels of
protection for the safe transfer, handling and use of
genetically modified organisms that may have adverse
effects on the health of people and the environment-
Section 4
Section 5- establishes the National Biosafety Authority in
which the Director General of NEMA is a member of its
board
Major function of the Authority- To exercise general
supervision and control over the transfer, handling and use
of genetically modified organisms with the view of
ensuring safety to human and animal health as well as
providing adequate levels of protection of the
environment-section 7
 Section 19- Introduction of GMOs with the approval of
the board.
Section 40-Environmental Restoration Order
Purposes of such an order;
Restoration of the environment to the condition it
initially was before the introducing GMOs
Levying charges on any person to whom this order is
served.
Section 42-Cessation orders- Issued by the authority
after consultation with the relevant regulatory agency
in relation to an activity which poses eminent danger
to the conservation and sustainable use of biological
diversity
 It is an offence for any individual to make use of,
release to the environment, places on market, to
export or import a genetically modified organism
without the approval of the authority- Section 52
Penalty: Fine not exceeding Twenty Million Shillings
or An imprisonment term not exceeding 10 years.
Section 54- Authority to promote public awareness
and education on biosafety matters. This is to make
people more involved in biosafety matters.
Forest Act 2005
Section 4- Establishes the Kenya Forest Service whose
Functions are set out in Section 5 of the Act.
Functions of KFS;
Formulating for approval of the board policies and
guidelines regarding the management, conservation and
utilization of all types of forest areas in the country
Collaborating with other organisations and communities in
the management and conservation of forests and
utilization of biodiversity
Promoting the empowerment of associations and
communities in the control and management of forests and
management of water catchment areas primarily for
purposes of water and soil conservation, carbon
sequestration and other environmental services
 Section 6- The Forest Service is managed by a board in
which the Director General of NEMA is a member.
Section 13-The board establishes forest conservancy
areas for efficient and proper management of forests.
Section 18- The board is also to establish the Forest
Management & Conservation fund for the
maintenance and conservation of forests
Section 32- forest area or woodland which has a
particular environmental, cultural, scientific or other
special significance may be declared a nature reserve
by the minister for the purposes of preserving
biodiversity and natural amenities on the
recommendation of the forest service and on
consultation with the minister of local authorities.
 Section 40- Granting of licenses subject to an Environmental impact
Assessment in accordance with EMCA 1999 where the board satisfied
that utilization of forests can be done through the granting of
concessions.
All indigenous forests and woodlands are to be managed on a
sustainable basis for the below purposes;
Conservation of water, soil and biodiversity
Riverline & Shoreline Protection
Carbon sequestration and other environmental services
Habitats for wildlife in terrestrial forests and fisheries in mangrove
forests
Mining or quarrying activities in forest areas can only be done by
getting consent and by being issued a license.
Such an area however should have no endangered species, An EIA must
have been carried out and such an area should not be an important
catchment area-Section 42
Re-vegetation is to take place where mining or quarrying has taken
place due to its effects such as forest depletion- section 43
 Community participation has been provided for under
section 46. Such participation is usually done through
Community forest Associations which are required to
be registered under the Societies Act
Some of the functions of the Association include-
protecting, conserving and managing forests approved
pursuant to a management agreement and protecting
sacred groves and protected trees- Section 47
National Forest Policy 2014
Overall goal-Sustainable development, management,
utilization and conservation of forest resources and
equitable sharing of acquired benefits for present and
future generations- Para 3.1
Para 3.2-Some of its Objectives include;
Increasing and maintaining tree cover of at least 10%
of land area in Kenya.
Promoting public, private and community
participation and partnership in the forest sector
development
Enhancing management of forest resources for
conservation of soil, water, biodiversity and
environmental stability.
 Para 3.3-Some of the Principles guiding the
implementation of the Policy include;
Sustainable Forest management
Public participation
International and Regional cooperation
Polluter and User Pays
For sustainable management of forests to be achieved,
the government is to manage all indigenous forests
and to encourage forest plantation, urban forestry and
roadside tree planting as well as farm forestry.
Some of the problems facing forestry development
include; decreasing and low quality of water flows,
high levels of erosion, siltation and degradation and
climate change
 WILDLIFE CONSERVATION AND MANAGEMENT ACT
CHAPTER 376, LAWS OF KENYA.
This is the statute that deals with the law relating to the
protection, conservation and management of wildlife in
Kenya so as to yield to the Nation in general and to
individual areas in particular, optimum returns in terms of
cultural, aesthetic and scientific gains as well as such
economic gains. Full account should be taken of the
varied forms of land use and the inter-relationship
between wildlife conservation and management and
other forms of land use in ensuring that this objective is
met.
 Section 3 provides for the establishment of a
uniformed and disciplined service to be known as the
Kenya Wildlife Service which shall be a body
corporate with perpetual succession and a common
seal and shall have power to sue and be sued in its
corporate name and to acquire, hold and dispose of
immovable property for the purposes of the Service
and the Act.
The headquarters of the Service shall be in Nairobi.
The Service shall be the successor to the Wildlife
Fund Trustees established under section 58 (now
repealed).
 The functions of the Service are to
(a) formulate policies regarding the conservation,
management and utilization of all types of fauna (not being
domestic animals) and flora;
(b) advise the Government on establishment of National
Parks, National Reserves and other protected wildlife
sanctuaries;
(c) manage National Parks and National Reserves;
(d) prepare and implement management plans for National
Parks and National Reserves and the display of fauna and flora
in their natural state for the promotion of tourism and for the
benefit and education of the inhabitants of Kenya;
(e) provide wildlife conservation education and extension
services to create public awareness and support for wildlife
policies;
(f) sustain wildlife to meet conservation and management
goals;
 (g) conduct and co-ordinate research activities in the field
of wildlife conservation and management;
(h) identify manpower requirements and recruit
manpower at all levels for the Service for wildlife
conservation and management;
(i) provide advise to the Government and local authorities
and landowners on the best methods of wildlife
conservation and management and be the principle
instrument of the Government in pursuit of such
ecological appraisals or controls outside urban areas as
are necessary for human survival;
 (j) administer and co-ordinate international protocols,
conventions and treaties regarding wildlife in all its
aspects in consultation with the Minister;
(k) solicit by public appeal or otherwise, and accept and
receive subscriptions, donations, devises and bequests
(whether movable or immovable property and whether
absolute or conditional) for the general or special
purposes of the Service or subject to any trust;
(l) render services to the farming and ranching
communities in Kenya necessary for the protection of
agriculture and animal husbandry against destruction by
wildlife.
 The Act provides that the Service shall be managed by a
Board of Trustees of the Service as provided for under
Section 3B whose terms and conditions of appointment,
enlistment, secondment, ranks, direction, disciplinary
code and regulations, prohibition against members of the
Service joining trade unions, insurbodinate behavior and
desertion by members.
The Act provides for the regulations to be followed when
declaring a National Park, National Reserve or local
sanctuary as provided for under Section 5B, 6 and Section
7. Section 8 provides for amendment of the boundaries of
such parks or reserves through amalgamation, division or
transfer and how they are to be managed.
 Commercial film making in the National Parks and Reserves is
restricted as well as flying at a height of less than one
thousand five hundred feet over a National Park unless there
is a written authorization of the Minister, which may be given
subject to such conditions as the Minister may think fit to
impose obtained previously as provided for under Section 12.
Part IV provides for the control of hunting, powers of
honorary wardens, prohibition of unlicensed hunting, general
provisions as to game licences, game registers and when one
may acquire special authorization to hunt. Section 29 further
provides for hunting on private land whilst ensuring protection
of human life and property. Section 34 prohibits any unlawful
methods of hunting and use certain weapons.
 Part V provides for trophies which are described in Section 2 as any
protected animal, game animal, or game bird alive or dead, and any
bone, claw, egg, feather, hair, hoof, skin, tooth, tusk or other durable
portion whatsoever of that animal or bird or fish or other aquatic
life whether processed, added to or changed by the work of man or
not, which is recognizable as such a durable portion.
Section 41 (1) provides where any person kills or captures any
animal under the authorization of a game licence, he shall, within
thirty days after the killing or capture, produce the animal or, as the
case may be, any trophy of the animal which he wishes to retain, to
a warden who shall issue a certificate of ownership in respect
thereof: Provided that, if the person wishes to have any process
applied in Kenya to the trophy, a warden may, upon application
made to him in that behalf, extend the period of thirty days for such
further period as he may consider necessary to enable the
processing to be carried out before the issue of a certificate of
ownership in respect of the completed trophy.
 Section 42 (1) provides that except as otherwise provided
by this Act, any person who is in possession of any trophy,
or of any ivory or rhinoceros horn of any description,
without also being in possession of a certificate of
ownership in respect thereof shall be guilty of a forfeiture
offence be it as dealers, during transfer or exportation of
the trophies.
The Act provides for disposal of persons arrested and
things seized, the effect of conviction and powers of
court, what happens in case one is inneligibile to hold
licences, compensation for personal injury or death, Land
use, application of Act to non-game animals, appeal to
Tribunal, duplicate licences, power to make regulations
and repeals and transitional provisions.
 MINING ACT
CHAPTER 306 [Date of commencement: 1st October,
1940.] An Act of Parliament to consolidate the law
relating to mining.
Section 3 provides that mineral oil is excluded from the
Act and that the Act shall not confer any right to prospect
for or to win any mineral oil.
Section 4 provides that the minerals vested in
Government include all unextracted minerals (other than
common minerals) under or upon any land, subject to any
rights in respect thereof which, by or under this Act or
any other written law, have been or are granted, or
recognized as being vested, in any other person.

 Section 6 provides that a penalty for prospecting or

mining without authority to be administered of a fine of
two thousand shillings or to imprisonment for a term not
exceeding six months and to the forfeiture of all minerals
obtained in the course of such unauthorized prospecting
or mining, or, if such minerals cannot be forfeited, to the
payment to the Government of such sum as the Court
assesses as the value of such minerals. An offence under
this section is cognizable to the police.
 Section 7 provides the following classes of land as (save where
otherwise in the Act provided) excluded from prospecting and
mining
(a) land dedicated or set apart as a place of burial or for any public
purpose other than mining, except with the consent of the Minister
in the case of Government land or, in the case of other land, the
person or authority in whom the land is vested;
(b) any area situate within any municipality or township or trading
centre, except with the consent of the owner or holder of the
surface rights and of the municipal or other authority exercising
control thereof;
(c) land held under grant or lease giving the holder rights of working
the minerals, non-precious minerals, precious metals and precious
stones, save by the holder thereof: Provided that any prospecting
or mining operations carried on by such holder shall be subject to
the provisions of Part V in so far as they are applicable and to the
provisions of the Mining (Safety) Regulations;
 (d) any area over which exclusive prospecting or mining
rights have previously been granted by or on behalf of the
Government and are still subsisting and any area in
respect of which an application for such rights in the
prescribed form has been accepted for consideration and
has not been subsequently rejected or withdrawn;
(e) land reserved for the purpose of any railway or
situate within one hundred metres of any railway, except
with the consent of the Kenya Railways Corporation;
(f) any area which is the site of or is within one hundred
metres of any dam, canal, reservoir or building belonging
to the Government or a county council, except with the
consent of the Minister or of the county council, as the
case may be;
 (g) the site of any public street, road or highway and any land
which is gazetted as a road reserve or otherwise reserved for
the purposes of any public street, road or highway, except with
the consent of the Minister or of the local authority or other
public body having the control thereof;
(h) salt licks;
(i) Trust land, except with the consent in writing of the county
council within whose area of jurisdiction the land is situated;
(j) land which the Commissioner may by notice in the Gazette
declare to be excluded from prospecting and mining;
(k) any area which is the site of or is within five hundred
metres of the nearest boundary of any public aerodrome or
landing ground, except with the permission of the Minister;
any land in or within one hundred metres of any monument or
protected area declared or deemed to have been declared as
such by the Minister under the National Museums and
Heritage Act;
 (l) lands which are within the boundaries of an area over which an
exclusive prospecting licence has been granted, and
(i) which at the time when such exclusive prospecting licence was
granted were either areas over which exclusive prospecting or
mining rights had been previously granted and were still subsisting,
but which have since the grant of such exclusive prospecting licence
been abandoned, cancelled, forfeited or otherwise lapsed, or were
areas in respect of which an application in the prescribed form for
any such rights had been accepted for consideration and have since
the grant of such exclusive prospecting licence been abandoned,
cancelled, forfeited or otherwise lapsed; or
(ii) over which the holder of such exclusive prospecting licence has
during the existence of such licence obtained location, lease or
other mining rights and which rights have also during the existence
of such licence been abandoned, cancelled, forfeited or otherwise
allowed to lapse, save in each case by the holder of such exclusive
prospecting licence;
(m) private lands, except with the consent of the owner thereof
 Section 32 provides that the holder of a location may
subject to obtaining any consents required under section
7, on the lands included within the area of his location,
cut, take and use any tree when necessary in the course
of mining operations or when required for mining or
domestic purposes, but he shall be liable for any fees or
royalties which may be payable under any law relating to
forests and shall, before cutting, taking and using any
such tree, pay to the owner or occupier of the land on
which such tree is standing a reasonable sum therefore;
and if the owner or occupier is dissatisfied with the
compensation offered the dispute shall be dealt with
under section 26.
 Section 35 (2) provides that any person who abandons
his location or any part thereof, or his exclusive
prospecting licence area or any part thereof, and any
person whose location or any part thereof, or exclusive
prospecting licence area or any part thereof, has been
forfeited, shall, in such a manner as to prevent persons or
stock other than dogs or poultry inadvertently entering
them, forthwith fill up, or secure to the satisfaction of the
Commissioner, all shafts, pits, holes and excavations and
remove all notices, beacons and boundary posts thereon,
and in default of so doing shall be guilty of an offence and
liable to a fine of one thousand shillings or to
imprisonment for a term not exceeding three months,
and in addition shall be liable to pay such sum as the
Commissioner may certify the cost of doing so will be.
 Section 92 provides that the Cabinet Secretary may make
regulations in connexion with
the construction and erection of houses, pits, shafts,
machinery and other works to be used for prospecting or
mining purposes;
the fencing off or rendering secure of any shaft, well,
trench, tunnel, drive or other works constructed, erected or
made for prospecting or mining purposes;
the grazing of cattle or other animals, and the cutting
down and use of timber for the purpose of carrying on
prospecting and mining operations;
the safety and health of persons employed in mines, and
the carrying on of prospecting or mining operations in a
safe, proper, sanitary and effectual manner.
 MINING BILL, 2014 A Bill for AN ACT of Parliament to give
effect to Articles 60, 62 (1)(f), 66 (2), 69 and 71 of the
Constitution in so far as they apply to minerals; provide for
prospecting, mining, processing, refining, treatment, transport
and any dealings in minerals and for related purposes.
PART V of the Mining Bill provides for the establishment of The
National Mining Corporation whose function will be:
engage in mineral prospecting and mining; and any other related
activities;
invest on behalf of the national government;
acquire by agreement or hold interests in any undertaking,
enterprise or project associated with the exploration,
prospecting and mining;
acquire shares or interest in any firm, company or other body of
persons, whether corporate or unincorporated which is engaged
in the mining, prospecting, refining, grading, producing, cutting,
processing, buying, selling or marketing of minerals;
 WATER ACT
Functions of the Water Act No. 8 of 2002 are:
to provide for the management, conservation, use
and control of water resources and for the
acquisition and regulation of rights to use water
to provide for the regulation and management of
water supply and sewerage services
to repeal the Water Act (Cap, 372) and certain
provisions of the Local Government Act.
Section 3 provides that every water resource is
vested in the State subject to any rights of user
under the Act or any other written law.
 The Cabinet Secretary is required to promote the
investigation, conservation and proper use of water
resources throughout Kenya and to ensure the
effective exercise and performance by any authorities
or persons under the control of the Cabinet Secretary
of their powers and duties in relation to water.
Section 7 of the Act provides the establishment of
the Water Resources Management Authority.
 Section 8 provides the powers and functions of the Authority
to be:
(a) to develop principles, guidelines and procedures for the
allocation of water resources;
(b) to monitor. and from time to time reassess, the national
water resources management strategy~
(c) to receive and determine applications for permits its for
water use;
(d) to monitor and enforce conditions attached to permits for
water use:
(e) to regulate and protect water resources quality from
adverse impacts~
Powers and functions of the Authority.
(t) to manage and protect water catchments:
 (g) in accordance with guidelines in the national water
resources management strategy. to determine charges to
he imposed for the use of water from any water resource;
(h) to gather and maintain information 011 water
resources and from time to time to publish forecasts.
projections and information on water resources;
(i) to liaise with other bodies for the better regulation and
management of water resources
(j) to advise the Cabinet Secretary concerning all matter
in connection with water resources
 Section 17 of the Act provides that where the Authority is
satisfied that special measures are necessary for the
protection of a catchment area or part thereof, it may,
with the approval of the Minister, by order published the
Gazette declare such an area to be a protected area.
Community projects and state schemes are to be
implemented to help conserve water resources and
manage water usage. (Section 19)
A permit shall be required for the drainage of any swamp
or other land and for any discharge of a pollutant into
any water resource (Section 25)
 Section 44- Where the Authority is satisfied that, in any
area, special measures for the conservation of
groundwater are necessary in the public interest for the
protection of public water supplies or for the protection
of water supplies used for industry, agriculture or other
private purposes, it may, following public consultation, by
order published in the Gazette declare the area to be
ground water conservation area.
The Cabinet Secretary is mandated to prescribe a system
for classifying water resources for the purpose of
determining resource quality objectives for each class
water resource.
 No person shall, without authority
(a) willfully obstruct, interfere with, divert or obstruct
water from any watercourse or any water resource, or
negligently allow any such obstruction, interference,
diversion or abstraction; or
(b) throw or convey, or cause or permit to be thrown or
conveyed, any rubbish, dirt, refuse, effluent, trade waste
or other offensive or unwholesome matter or thing into
or near to any water resource in such manner as to cause,
or be likely to cause, pollution of the water resource.
A person who contravenes the above shall be guilty of an
offence. (Section 94)
 Sessional Paper on National Land Policy.

Outlines that the government shall establish institutional

mechanisms for conservation of quality of land for
environmental conservation purposes.
It obligates the government to ensure sustainable
management of natural resources.
Some of the duties imposed on the government by the
National Land Policy include but are not limited to, aids the
preparation of participatory environment action plans by
communities and individuals living near environmentally
sensitive areas.
It further encapsulates ecosystem protection and
management principles and urban environmental
management principles.
 Paragraph 141 establishes the principles the government
shall implement to promote environmental essessment and
audit as tools for Environmental Management:
ensure EIAS are carried out on all developments that have a
probability to pollute the environment and institute
remedial measures.
Annually monitor urban and rural dilapidation to ward off
current and future socio-economic negativities in
infrastructural development.
Spur on public participation in the supervision and protection
of the environment.
Introduce the polluter pay principle.
 Summary of Lead Agencies
PARENT MINISTRY LEGISLATION INSTITUTION TYPE OF PERMIT

Ministry of Forests & Wildlife Wildlife(Conservation and Kenya Wildlife Service Various permits and licenses
Management)
Amendment
act,1989,Cap.376

ForestAct,2005 Kenya Forest Service Various access permits

Ministry of Environment & Environmental & Coordination National Environment Access Permit
Mineral Resources Act,1999 Legal Notice160 Management Authority
Wetlands Act

Ministry of Higher Education, Science &Technology National Council for Science Research Permit
Science Act,1977,Cap.250 &Technology
&Technology

Ministry of Fisheries Fisheries Protection Fisheries Department Fishing Permit

Development Act,1977,Cap.379
Ministry of National Heritage National Museums & Heritage National Museums of Kenya Access Permit
Antiques and Monuments Act,2006

Ministry of Industrialization Industrial Property Act,2001 Industrial Property Institute Technology transfer licenses,
Kenya Patented Microbe Release
Permit

Ministry of Agriculture Seed & Plant Variety Kenya Plant Health Phytosanitary Permit
Act,Cap.326 Inspectorate Service
Institutions under the Environmental
Management and Coordination Act
(EMCA)
The Environment Management and Co-ordination Act
provides for the following institutions:
National Environmental Management Authority
National Environmental Council
Public Complaints Committee
Provincial and District Environment Committee
National Environmental Tribunal
National Environmental Action Plan (NEAP)
Committee.
 NATIONAL ENVIRONMENT
MANAGEMENT AUTHORITY
(NEMA)
This body is provided for under section 7 of the
Environment Management and Coordination Act
Its mandate is to play a supervisory role and co-
ordinate all matters relating to the environment.
Is the principal tool of Government in the
implementation of policies relating to the
environment.
These and other functions are provided for under
section 9 of EMCA
NATIONAL ENVIRONMENT COUNCIL (NEC)
This council is provided for under section 4 of the EMCA. It is
mandated with
policy formulation and directions for the purposes of the Act.
Sets national goals and objectives.
Determines policies and priorities for the protection of the
environment.
Promotes co-operation among public departments, local
authorities, private sector, Non-Governmental Organisations
and such other organisations engaged in environmental
protection programmes.
PROVINCIAL AND DISTRICT ENVIRONMENT
COMMITTEES
Provided under section 29 of EMCA.
The Minister by notice in the gazette appoints
Provincial and District Environment Committees in
respect of every province and district respectively.
Deals with decentralization of environmental
management and enables participation by the local
communities.
Decisions of these committees are legal and it is an
offence not to implement them.
PUBLIC COMPLAINTS COMMITTEE
(PCC)
Provided for under section 31 of EMCA.
It operates under the Ministry of Environment and
Mineral Resources (MEMR).
Investigates allegations or complaints regarding the
condition of the environment.
Makes reports of its findings and recommendations to
the National Environmental Council (NEC).
It plays a vital role of providing the administrative
mechanism for addressing environmental harm.
NATIONAL ENVIRONMENTAL TRIBUNAL (NET)

Established by the Central Government through the

National Environmental Tribunal Act of 1995.
Provides for Strict Liability for damage arising out of
accidents caused from the handling of hazardous
substances.
To hear and determine appeals from NEMAs decisions
and other issues relating to issuance, revocation or
denial of Environmental Impact Licences.
To give direction to NEMA on any matter of complex
nature referred to it by the Director General.
Powers of the Tribunal

On receiving an appeal or referral, the tribunal shall

enquire into the matter and
Make an award, order or decision, or give directions.
Confirm, set aside or vary the decision in question.
Compel attendance of any person.
Order investigation of any contravention of EMCA as it
deems necessary.
Appeal from the Tribunal
Parties have a right to appeal to the High Court
Such appeal must be lodged within 30 days after the
Tribunals award, order or decision.
Independence of the Tribunal
The tribunal is a quasi judicial body that makes its
own decisions free from any interference.
Operates independently of all other institutions
established under EMCA including NEMA and its
committees and NEC
Administratively, the Tribunal falls under the Ministry
responsible for the environment.
NATIONAL ENVIRONMENTAL
ACTION PLAN (NEAP) COMMITTEE
Is the basis for integrating environmental concerns in
formulation and implementation of development
plans and programmes.
It shall, after every 5 years, prepare a national
environment action plan for consideration and
adoption by the National Assembly.
Sector ministries and Local Government Authorities to
prepare their respective Environmental Action Plans in
conformity with the NEAP to ensure environmental
mainstreaming at respective levels.
LOCUS STANDI
Locus standi in environmental cases prior to 1999 was a
contentious issue. Questions arose as to whether person
could bring a case to the courts when no damage was
imminent to him/her but rather to the public at large.
Kenyan courts almost entirely relied on the rules
established in Gouriet v the National Union of Post
Office Workers to decide environmental cases. This
precedent was not accommodative as it barred private
persons from bringing to court actions for environmental
breaches. In essence, this precedent disenfranchised
private persons from instituting proceedings to enforce
their rights against real or perceived environmental
breaches, because such breaches were perceived as public,
as opposed to private affairs.
WANGARI MAATHAI V. KENYA
TIMES MEDIA TRUST LTD.
Wangari Maathai v Kenya
Times Media Trust HCCC5403
of 1989
The plaintiff sought a temporary injunction
restraining the defendant from constructing a
proposed complex in a recreational park in central
Nairobi. The plaintiff was coordinator of the Green
Belt Movement, an environmental NGO, but sued in
her own behalf. The defendant objected for lack of
locus standi.
The court upheld the defendants' contention that the
plaintiff had no locus standi.
Kenya Ports Authority v East African
Power & Lighting Co. Ltd. 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
appellants 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 harbour, which, as pleaded,
had been done to avoid the possible combustion of the oil.
The court held that 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 appellants property from the
pollution of the port waters.
 LOCUS STANDI
With the coming into force of the Environmental
Management and Control Act (EMCA) 1999 the courts
took a different turn as it provided for the right to a clean
environment.
The Constitution of Kenya 2010 protects environmental
rights with provisions such as article 70 which states that
If a person alleges that a right to a clean and healthy
environment recognised and protected under article 42
has been, is being or is likely to be, denied, violated,
infringed or threatened, the person may apply to a court
for redress in addition to any other legal remedies that are
available in respect to the same matter.
Rogers Muema Nzioka & 2 others v
Tiomin Kenya Ltd Civil Case No. 97
of 2001
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
licences 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 licences threatened the security of their environment
and health and that the environmental impact report was
misleading and inappropriate.
The petition was brought on behalf of mere ordinary rural
farming inhabitants.
Rogers Muema Nzioka & 2 others v
Tiomin Kenya Ltd Civil Case No. 97
of 2001
The court found that the defendant had not taken any
environmental factors into account in proposing the project.
Although at that stage not all the facts were known and final
decisions were still to be made, on the balance of probabilities
the applicants had made a case for injunction, which was
granted.
The court stated that, Environmental degradation is not
necessarily individual concern or loss but public loss so in a
matter of this kind the convenience not only of the parties to the
suit, but also of the public at large is to be considered so that if
the injunction is not issued it means that any form of feared
degradation, danger to health and pollution will be caused to the
detriment of the population.
The ruling opened a new frontier for the protection and
promotion of environmental rights in Kenya.
Friends of Lake Turkana Trust
versus the A.G and 2 others ELC
Suit No. 825 of 2012
Friends of Lake Turkana Trust alleged that the
government of Kenya and Kenya Power and Lighting
Company had deprived community members of their
constitutional rights to life and dignity by agreeing to
purchase 500MW of electricity from the government of
Ethiopia. The electricity would be sourced through a
series of dams on the Omo River (including the Gibe III
dam), which flows into Lake Turkana. Construction and
operation of the dams was anticipated to cause a sharp
reduction in water flows to Lake Turkana and adversely
impact community members who rely on the lake for
their economic and cultural livelihoods.
Friends of Lake Turkana Trust versus
the A.G and 2 others ELC Suit No. 825
of 2012
Court declared that the respondents violated the constitutional
rights of community members when they withheld the power
purchase agreement and other key documents from public
disclosure. The government of Kenya has an affirmative duty to
disclose all relevant information in relation to importation or
purchase and transmission of electric power from Ethiopia.
TheCourt addressed the government of Kenyas obligations
under Article 69 of the Kenyan Constitution, which requires the
State to protect and conserve the environment, and ensure
sustainable use of natural resources.
Pointing to the principles of sustainable development and the
precautionary principle, the Court stated that the respondents
have a duty to establish that no environmental harm arises
from the [electricity] agreements and projects
Peter K. Waweru v. Republic, Misc.
Civil Application 118 of 2004
The applicant was charged with discharging raw sewage into a public
water source and the environment contrary to section 118 (e) of the
Public Health Act.
They had connected pipes underground which released raw sewage
from their estate to the environmnet which flowed to the river.
The court found that Kiserian township was located at the water
table and the water from the river was used by the people in their
livelihood including watering their livestock. There was a serious
threat to the environmental rights of the people.
The learned Judge observed that a development that threatens life is not
sustainable and ought to be halted. The decision is premised on Principle
4 of the Rio Declaration. The principle states:
In order to achieve sustainable development, environmental protection shall
constitute an integral part of the development process and cannot be
considered in isolation from it.
Peter K. Waweru v. Republic, Misc.
Civil Application 118 of 2004
The following orders were granted by the court:
1. That the government through the Water Ministry and under the Local
Government Act is under a statutory obligation to establish the necessary
treatment works and since the development poses a threat to life an order of
mandamus was issued to compel them to establish and maintain the treatment
works.
2. The government through the relevant ministries is under an obligation to
approve sustainable development . To this end no further development in the
township should be undertaken without satisfying all the environmental and
health requirements. If septic tanks could provide an acceptable alternative in
the short-term the alternative of exhauster services should be considered and
enforced pending the establishment of the treatment works.
3. The relevant authorities to apply the polluter pays principle and cause the
applicants to pay for the damage including any viable alternatives.
4. Since the environmental damage which was likely to result was immense, the
relevant ministries and lead agencies to seriously reflect on the situation and
come up with both short term and long-term scientific solutions.
APPLICATION OF ENVIRONMENTAL
LAW PRINCIPLES AND CONCEPTS IN
KENYAN LAW JURISPRUDENCE
 Facts
A group of Baringo residents filed a
suit against the government seeking
the the eradication of a weed called
Prosopis Juliflora,(mathenge plant)
which is said to be invasive, from
Marigat and Mugutani
Administrative Divisions of Baringo
District of the Rift Valley Province.
A preliminary objection raised under the following
grounds
a) That no statutory notice of intention to sue was
served on the Attorney General under section 13 A of
the Government Proceedings Act, Cap. 40.
b) That the cause of action arose in 1983 and that the
suit, having been filed on 8th February, 2006 is barred
by statutory limitation.
c) That the plaintiffs have no specific interest in the
subject matter and, therefore, lack locus standi.
The plaintiffs argument;
The continued decimation of natural biodiversity in the affected areas
continues unabated contrary to Kenyas obligations as a party to the
international conventions particularly to the Convention on Biological
Diversity of 1992, to which Kenya is a party.
The 1st and 2nd defendants argument
In the alternative the Defendants further aver that though Prosopis
Juliflora existed in other parts of Kenya before it was recorded in Baringo
District its long term effects on the environment were not known or
foreseeable and could not have been known or foreseeable nor was it or
its planting proscribed under any legal statute.
The defendants also pleaded that the plaintiffs themselves have
admitted that Prosopis is of an intractable or uncontrollable nature
and further aver that proper measures have already been initiated to
protect the country from any further spread of Prosopis Juliflora.
Defendants averred that prior to the invasion by Prosopis Juliflora the
areas occupied by the plaintiffs were arid or semi-arid and were of quite
low wealth creation capacity than they are after the spread of Prosopis
Juliflora. The defendants further aver that a lot of problems associated
or originating with aridity in the area subject matter of this suit were,
and are still being solved, by reliance on Prosopis Juliflora despite the
fact that the species are invasive in nature
 The court dismissed
the case on this
preliminary objection
due to failure to
comply with
procedural matters.

The advantages of the prosopis juliflora (mathenge plant)

With proper management, the pods can be processed to;
1. provide commercial livestock feeds,
2. provide wood fuel, timber, construction posts as well as
wood for carving
Disadvantages
1. It causes goats gums to rot if fed on thus leading to loss of
teeth and ultimate death of goats
2. Makes soil loose and unable to sustain water
East Africa Wildlife Society &2
others versus NEMA &KeNHA
East Africa Wildlife Society, Africa Network for Animal Welfare
and Paula Kahumbu, challenged the intended construction by
Kenya National Highways Authority for the 5km section of the
Southern bypass intended to pass through the Nairobi National
Park without compliance to the condition of the EAI license
that the road must not encroach on gazetted National Parks -
Nairobi National Park.
Held
NEMA ought not to have licensed construction of the whole by-
pass if it deemed it likely to affect the park and the biodiversity
there in irreparably". It ought to have sought alternative road
designs
 Abdikadir Sheika Hassan & others v
Kenya Wildlife Service
1996, High Court Of Kenya At Nairobi
Facts
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
Customary 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.
Sea Star Malindi Ltd v Kenya Wildlife
Services No 982 of 1997, HC Nairobi.
The applicant sought orders of certiorari, mandamus and prohibition
against the decision and actions of the Kenya Wildlife Services (KWS) in
banning and restricting it from building a hotel in Malindi.
The KWS had ordered the applicant to stop its construction on the land
allegedly because there was a 100 feet space between the applicants land
And the high water mark, which space fell under the jurisdiction of KWS
under the Wildlife (Conservation and Management) Act (cap 376).
KWS stated that the area needed to be preserved in order to ensure the
protection of the fragile ecosystem of the area.
The applicant argued that the land had always remained freehold private
land and that there was no record showing that it had ever been acquired
by the Government for any public use. It stated that its documents of
title and the survey records showed that the land extended up the high
watermark and furthermore, the Malindi Municipality had given its
approval to the building plans.
 Sea Star Malindi Ltd v Kenya
Wildlife Services
Held
1. In situations where private land is required to be a protected area so as to
protect the ecosystem for the greater good of the environment the
procedure provided by section 6(1) of the Wildlife (Conservation and
management) Act has to be followed, namely;
(a) the Minister may in consultation with the competent authority declare any
area to be a National Park.
(b) In the absence of consent by a competent authority, the (i) approval of the
order by Parliament shall be required; and (ii) in case of trust land the area
must first be set apart in accordance with section 118 of the Constitution; or
(iii) in case of private land the area concerned must first be acquired under
the Land Acquisition Act.
2. The actions and decisions of the respondent were ultra vires and illegal and
remained so unless the legal requirements of the Wildlife Management Act
and Land Acquisition Act were complied with it was also against section 75
of the Constitution.
3. The decision by KWS restricting, banning and/or restraining the applicant
from constructing a hotel, was quashed.
The plaintiff sought an injunction to restrain the defendant
from directing storm and waste water into the plaintiffs
dam or into the neighbouring dam situated at Simotwet
Primary School. Earlier, the defendant had acceded to a
request by the members of the community to desilt the
dam at the primary school. The plaintiff submitted that the
defendant had failed to conduct an environmental impact
assessment before undertaking the rehabilitation of the
dam. Further she contended that she was entitled to live in
a clean environment without interference by any person.
 Endere v. Karen Roses ltd
Held
The defendant undertook the project before seeking the
authority of the National Environmental Management Authority
as provided by section 5868 of the Environmental Management
and Co-ordination Act and the Second Schedule paragraph four
of the said Act.

2. The defendant was required in law to consult all parties likely

to be affected by the said dam in co-ordination with the National
Environmental Management Authority before rehabilitating the
dam.
3. The Plaintiff was within her rights as provided under section 3
of the Environmental Management and Co-ordination Act to
seek enforcement of the provisions of the said Act, if she was of
the view that the defendant was likely to contravene its
provisions and cause harm to the environment.
 THE
.

END .

Thank you!!
For your undivided
attention