All questions
Environmental protection
i Air quality
According to the Kenya National Bureau of Statistics Economic Survey2020, respiratory system disease was 25 percent of all diseases in Kenya in 2020. A further 21.9 million people were also affected by air pollution. This highlights the urgent need to take immediate steps to reduce air pollution in Kenya.
The cabinet secretary is empowered by section 78 of EMCA to, in accordance to NEMA’s recommendations, establish criteria and procedures to measure air quality and set standards for air quality. He can also take other measures to reduce air pollution such as issuing guidelines to reduce GHG emissions and the use of appropriate technology. The cabinet secretary is also empowered by section 79 to announce controlled areas and set air emission standards for such areas. Section 101, on the other hand, sets standards for noise and recommends NEMA minimum standards in noise emission and vibration polluting.
The 2014 Environmental Management and Co-ordination Regulations (Air Quality) regulate the prevention, control, and abatement air pollution to ensure clean, healthy, and safe air. They prohibit certain forms and levels of pollution. They also provide guidelines and allow for the issuance of emission licences.
All internal combustion engines, as well as all places, processes, works, and other appliances, are subject to the Regulations. The Regulations specify areas that must be controlled and include important provisions about limiting emissions from open burning, waste incinerators, cross-border polluting and demolition.
ii Water quality
The Environmental Management and Co-ordination Water Quality Regulations 2006 apply to water used domestically, industrially, agriculturally, and for any other purpose. The purpose of the regulations is to regulate effluent discharge and provide guidelines and standards for disposing other pollutants.
In Maraba Lwatingu Residents Association, 505 other v. National Environment Management Authority and 3 othersThe Environment and Land Court upheld a decision by the National Environment Tribunal to cancel an EIA license for the construction of sewage-ponds by Lake Victoria North Water Services Board and ordered restoration on the grounds that the appellants failed to conduct adequate public participation and did not comply with the Water Regulations.23
iii Chemicals
NEMA is empowered by the EMCA to make regulations for the labelling, classification and handling of hazardous chemicals.24It also prohibits and punishes the discharging of chemicals into the atmosphere that are not in accordance with the regulations.25The draft Environment Management and Coordination 2018 (Toxic and Hazardous Industrial Chemicals and Materials Management Regulations) Regulations has been created. These regulations will see Kenya joining the Globally Harmonised System for classifying and labelling chemical, which will be mandatory.
Companies must obtain permits to import or export hazardous and toxic chemical substances according to the draft regulations. A permit is required for companies to manufacture toxic or hazardous chemicals. NEMA must be notified if any person is in possession of hazardous chemicals that are required to be disposed off by any law. The draft regulations require that all importers, exporters, or manufacturers of toxic chemicals keep records and reports.
iv Solid and Hazardous Waste
Section 87 (EMCA) prohibits the discharge or transport of waste in a way that pollutes the environment or causes ill-health. NEMA also requires that anyone transporting or operating waste must have a valid license. The same section requires that anyone operating a waste disposal facility must take appropriate measures to minimize pollution.
Persons who are likely to produce hazardous waste under the Environmental Management and Co-ordination Regulations (Waste Management Regulations) 2006 must have a valid Environmental Impact Assessment License from NEMA. Producers of hazardous materials are required to dispose of their waste in a waste facility. They must also ensure that all containers and packages used for storage are secure and clearly labeled in English or Kiswahili.
If a party plans to export hazardous materials, they must have a valid permit issued in accordance with NEMA and a valid prior consent document issued by the designated country authority. NEMA requires that all applicants for permits to deal with hazardous waste have an insurance policy that covers the risks likely to arise from the activity for which they are applying.
In the case of Martin Osano Rafara & another v. Municipal Council of Nakuru, & 2 other [2019]eKLR, Environment and Land Court declared the first respondent and NEMA second respondent to have violated the petitioner’s rights to a healthy and cleaner environment in relation to how they operated a dump site. The third respondent was also required to apply under Sections 87-88 and 89 of EMCA for a waste disposal license.
The 2020 Draft Environmental Management and Co-ordination Regulations (Extended Producer Responsibilities) imposes additional obligations on producers26In order to improve environmental sustainability, they will establish mandatory extended producer responsibility programs for all products and all packaging throughout their life cycles. Regulation 3 states that the scheme will play a critical role in reducing waste at the source, promoting environmentally friendly products’ designs, packaging, and cleaner manufacturing processes, among other things.
v Contaminated land
Section 93 (EMCA) prohibits the release of hazardous materials into the atmosphere and makes such disposal an offense. In addition to any other sentence, a person who is convicted of this offense must pay the cost to remove the hazardous material as well as the costs of third parties such compensation, restoration, restitution or restitution. The owner of the discharge must inform authorities and begin immediate clean-up operations.
Section 11 of the Land Act 2012 imposes a duty on the National Land Commission to identify ecologically fragile areas that lie within public lands. It must also demarcate these areas or take other justified actions to prevent climate change and environmental degradation.
The Integrated National Land Use Guidelines27Provide for methods of preventing contamination of land through enforcement of licensing conditions and compliance. They also provide for the maintenance and accessibility of a Contaminated Land Register. NEMA and other relevant agencies are empowered by the Integrated National Land Use Guidelines to conduct site investigations on contaminated land, and to evaluate remedial reports submitted by proponents. NEMA is also authorized to approve site management plans for guidance in managing environmental and health risks.
The National Land Use Policy governs.28It is recognized that land-use management is vital to the efficient and sustainable utilisation of land and land-based resource. The policy requires the government of Kenya to take measures to prevent land degradation through inappropriate land-use practices and abuse of inputs. The policy proposes land conservation measures in urban settings. These include rehabilitation of dumping sites, and land that has been subject to environmental degradation.
A landmark case in the history of KM & 9 Others v. Attorney General &7 Others [2020]eKLR (the Environmental and Land Court) ordered the state and two private investors pay US$12,000,000 for Mombasa residents who had been affected by lead poisoning from a nearby factory. The environment agencies of the state were also directed to clean up any lead deposits within four months, or face further sanctions.
