Environmental Law Notes

This section covers environmental law in Kenya under the Kenya Environment Management and Co-ordination Act.

Topics covered under environmental law-

• The right of every Kenyan to a clean environment
• Functions of NEMA
• Law on waste management
• Management of hazardous chemicals and substances
• Water management
• Regulation of pest control
• Control of radioactive substances
• A brief introduction to Kenya environmental law

The Kenya Environmental law describes the legal rules in Kenya relating to the environment, and more broadly the social, economic, philosophical and jurisprudential issues raised by attempts to protect, conserve and reduce the impacts of human activity on the Kenyan environment.

The topic may be divided into two major subjects: pollution control and remediation, and resource conservation, individual exhaustion. The limitations and expenses that such laws may impose on commerce, and the often unquantifiable (non-monetized) benefit of environmental protection, have generated and continue to generate significant controversy.

Given the broad scope of the environmental law, no fully definitive list of environmental laws is possible. The following discussion and resources give an indication of the breadth of law that falls within the "environmental" metric.

Sources of Kenya Environmental law
There are a number of diverse sources of Kenya environmental law:

• International law – Both international customary law and international conventions function as sources of Kenya environmental law.
• Common law – A variety of common-law rules, derived from neighbor law, for example, and the law of nuisance, are of significance as sources of environmental law. The dictum sic utere tuo ut alienum laedas ("use your own so as to cause no harm") furnishes one instance.
• Constitution of Kenya – The Constitution now informs and underlies the entire legal system in Kenya. Of prime importance is the Bill of Rights, with its explicit provision for environmental rights.The Constitution provides a framework for the administration of environmental laws.
• Statute law – Environmental law is also derived, fairly obviously, from national and provincial legislation, and from local by-laws.
• Customary law – Custom functions to some degree as a source of environmental law.

Historical development of Kenya environmental law



Environmental law in Kenya generally comprises the rules and doctrines arising from common law, provisions of constitutions, statutes, general principles and treaties that deal with protection, management and utilization of natural resources and the environment. The aims of environmental law are:-
a) To facilitate environmental management by providing rules and regulations for environmental conservation and preservation. In facilitating environmental management we get to know how institutions for environmental management are created, how rules are created to resolve environmental conflicts, and what are the acceptable standards of conduct and behavior when interacting with the environment.

b) To facilitate sustainable development.
The sources of environmental law in Kenya include the constitution, framework law, sectoral statutes, regulations, judicial decisions, customary law, treaties, general opinions of international law and qualified writings among other sources.
The environmental law originally arose out of English Common law and such law sought to uphold individual property rights as well as protect common property such as rivers, air, and sea. Remedies for injuries sustained as a result of the environmental breach were pursued privately whereas in other areas, public authorities were held to account for the same. Criminal law was also used by the state to punish individuals for breaches, for example, the law of public nuisance, trespass and arson.
The industrial revolution led to regulations to protect public health and control water pollution. These regulations were however localized at that time. It is this industrial development that gave impetus to the growth of national laws when in the 1960s countries saw the need to enact specific laws to regulate the environment starting with Brazil which enacted the laws on the environment in 1967.
Environmental law, therefore, developed from case law to what it is today.

RIGHT TO A CLEAN ENVIRONMENT
Every person in Kenya is under Kenya laws entitled to a clean and healthy environment and has the duty to safeguard and enhance the environment. The entitlement to a clean and healthy environment under the Kenya laws includes the access by any person in Kenya to the various public elements or segments of the environment for recreational, educational, health, spiritual and cultural purposes. If a person alleges that the entitlement has been, is being or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply
to the High Court for redress and the High Court may make such orders, issue such writs or give such directions as it may deem appropriate to—
(a) prevent, stop or discontinue any act or omission deleterious to the environment;
(b) compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment;
(c) require that any on-going activity be subjected to an environmental audit
(d) compel the persons responsible for the environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage; and
(e) provide compensation for any victim of pollution and the cost of beneficial uses lost as a result of an act of pollution and other losses that are connected with or incidental to the foregoing.
The High Court shall be guided by the following principles of sustainable development;
(a) the principle of public participation in the development of policies plans and processes for the management of the environment;
(b) the cultural and social principles traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality or inconsistent with any written law;
(c) the principle of international co-operation in the management of environmental resources shared by two or more states;
(d) the principles of intergenerational and intragenerational equity;
(e) the polluter-pays principle; and
(f) the precautionary principle.

FUNCTIONS OF NEMA
The National Environment Management Authority(NEMA) is an authority in established under Kenya laws in Kenya whose object and purpose are to exercise general supervision and coordination over all matters relating to the environment and to be the principal instrument of Government in the implementation of all policies relating to the environment.
The functions of NEMA under Kenya laws are to —
(a) co-ordinate the various environmental management activities being undertaken by the lead agencies and promote the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable yield basis for the improvement of the quality of human life in Kenya;
(b) take stock of the natural resources in Kenya and their utilization and conservation;
(c) establish and review in consultation with the relevant lead agencies, land use guidelines;
(d) examine land use patterns to determine their impact on the quality and quantity of natural resources;
(e) carry out surveys which will assist in the proper management and conservation of the environment;
(f) advise the Government on legislative and other measures for the management of the environment or the implementation of relevant international conventions, treaties, and agreements in the field of environment, as the case may be;
(g) advise the Government on regional and international environmental conventions, treaties and agreements to which Kenya should be a party and follow up the implementation of such agreements where Kenya is a party;
(h) undertake and coordinate research, investigation, and surveys in the field of environment and collect, collate and disseminate information about the findings of such research, investigation or survey;
(i) mobilize and monitor the use of financial and human resources for environmental management;
(j) identify projects and programmes or types of projects and programmes, plans and policies for which environmental audit or environmental monitoring must be conducted;
(k) initiate and evolve procedures and safeguards for the prevention of accidents which may cause environmental degradation and evolve remedial measures where accidents occur; 1999 Environmental Management and Co-ordination No. 8
(l) monitor and assess activities, including activities being carried out by relevant lead agencies, in order to ensure that the environment is not degraded by such activities, the environment is not degraded by such activities, environmental management objectives are adhered to an adequate early warning on impending environmental emergencies is given;
(m) undertake, in co-operation with relevant lead agencies, programmes intended to enhance environmental education and public awareness about the need for sound environmental management as well as for enlisting public support and encouraging the effort made by other entities in that regard;
(n) publish and disseminate manuals, codes or guidelines relating to environmental management and prevention or abatement of environmental degradation;
(o) render advice and technical support, where possible, to entities engaged in natural resources management and environmental protection so as to enable them to carry out their responsibilities satisfactorily;
(p) prepare and issue an annual report on the state of the environment in Kenya and in this regard may direct any lead agency to prepare and submit to it a report on the state of the sector of the environment under the administration of that lead agency;
(q) perform such other functions as the Government may assign to the Authority or as are incidental or conducive to the exercise by the Authority of any or all of the functions
provided under the Environmental Management and Coordination Act.


LAW OF WASTE MANAGEMENT
The management of waste always requires an understanding of the concept of waste.
Definition of Waste: waste under Kenya laws is an item or substance which has no utility value to the holder of the item. By the same token waste may well have some value to somebody else or to the same person in a different context. Therefore whether or not an item is considered to be or not to be waste must be determined from the point of view of the person who has control or is in possession of that particular item. An item which is waster is not the same thing as an item that does not have value. Waste items always have value and it is only that its value to the holder is less than the cost to the holder of retaining possession of it. Therefore the holder always faces an inherent temptation to dispose of the item at least cost to himself or to herself.
The first choice of disposal of a waste item is into the environment i.e. a cigarette smoker will puff away until they get to the butt end of the cigarette and then they have the Pavlov’s instinct of letting it drop from their hands and will drop it anywhere and for this reason waste presents an environmental problem because the holder does not see the need to invest resources in disposing the item. Where the holder is not able to dispose of it in the environment, the holder will hand over that item to the person who is willing to take the item. Such a person may well be prepared to pay for the item for the reason that the intending possessor of the item may well see utility value in the item. But the key thing is that the holder is disposing of the item rather than the person acquiring it is paying for it so the price that the holder imposes for the item will typically not represent the true economic value of the item. In an auction, for instance, one sets a reserve price which represents what one perceives as an item’s economic value. At times the holder is even prepared to pay for somebody to take away this item.
So waste presents an environmental management problem, the theory of managing waste is captured in an approach to management known as cradle to grave management or ‘lifecycle management’. Cradle to Grave Management presents an approach that looks at an item from its inception to its disposal, the approach looks at the entire lifecycle of the item.
Lifecycle Management introduces management principles at each stage of the life of the item. At production, the management approach is to reduce or minimize waste. After production in use the approach is to reuse waster and on disposal, the approach is to recycle. Reduction of waste is basically the principle that the production process should result
1. In an item which potentially will generate little waste
2. The production process itself should give rise to as little waste as possible.


If in the process of producing an item the maker of the item is also generating a lot of waste. The idea is to minimize waster, there are people who argue that minimization of waster cuts costs.
Having generated the item, the idea is that the item itself should be an item that is capable of reuse which basically means putting the item back to use in the same form. A good example is a beverage bottle. These are items that can be used again in the same form. In order to encourage reuse, the management uses a deposit and return the system to encourage reuse. Replacement of this particular item like cans for bottles leads to a waste management problem.


MANAGEMENT OF HAZARDOUS CHEMICALS AND SUBSTANCES
There are two kinds of sources of pollution of the environment under Kenya law:

1. Point sources of Pollution

2. Non-Point sources – referred to as diffuse sources of pollution

POINT SOURCES OF POLLUTION
Point sources of pollution under Kenya laws are sources which are fixed and the pollution from which is predictable and known in advance. The epitome of point sources of pollution is the waste drain. The ways in which point sources of pollution are managed is through firstly the establishment of standards to be met by the pollutants which are to be discharged from those point sources. In order to regulate that point source, the permit or license is issued for that particular activity. For example, if one wishes to run a factory that will discharge pollutants through a pipe, then you apply for a permit and the permit will indicate what the factory must meet. Discharge of affluence is a normal part of economic activity and it is handled by issuing permits and handling it so it falls to manageable standards.

NON POINT SOURCES OF POLLUTION
Non-point sources of pollution under Kenya laws refer to sources of pollution whose origin is unpredictable and diffuse, they arise from unpredictable events or circumstances one does not know until the pollution occurs at which particular point the pollution will occur. The example of a non-point source of pollution is an accident involving a petrol tanker. Until the accident occurs one doesn’t know where it occurs. Use of pesticides on crops is another example when it rains the rains wash pesticides into the river and no one knows when it will happen.

The method of dealing with the non-point source of pollution is through prescribing preventive measures. These are measures designed to ensure that the activity is undertaken in such a way as to minimize or prevent altogether the occurrence of pollution or the extent of environmental damage arising from the pollution.

Hazardous chemicals and substances are chemicals and substances which contain characteristics which contain a danger to humans and the environment. We have listed the characteristics under Section 91 of the Environmental Management and Coordination Act contains a list of characteristics that make substances hazardous, these are that the substances are corrosive, carcinogenic, flammable, toxic, persistent, explosive or radioactive. Until that characteristic or the substance leads to environmental damage, the danger remains latent, latent means that it exists but has not yet manifested itself. It is for these reasons that these substances represent diffuse sources of pollution that is because you can live with them but something may occur that makes environmental damage become a reality.

In Kenya a diverse range of laws deals with the management of hazardous chemicals and substances. They include the Pest Control Products Act Cap 346 of the Laws of Kenya, the Pharmacy and Poisons Act which is Cap 244, Radiation Protection Act Cap 243 of the Laws of Kenya, act the Petroleum Act Cap 116 Laws of Kenya, Fertilisers and Animals foods Act Cap 145, the Foods, Drugs and Chemicals Act Cap 254, the Environmental Management and Coordination Act of 1999 has introduced a parallel system for managing hazardous chemicals and substances. All of these laws are product specific which means that each of them focuses on a certain category of products but the principles on which they are based are similar in every case. The objective is preventive and it is an international principle that provides for Classification, Packaging and Labelling Products. Classification, Packaging Labelling is a principle of management of hazardous chemicals and substances applied internationally which means that whether in Europe or Africa the principles are the same. The extent to which they respected however is different depending on where one is.


WATER MANAGEMENT
This includes management of water resources and provision of water supplies. In the past the law relating to water management in Kenya was contained in the Water Act Cap 372 Laws of Kenya. In 2002 the Water Act was repealed and replaced by new law which is presently known as the Water Act 2002 and does not have a Chapter number. This came into effect in March 2003 by which Water Act Cap 372 was repealed. Kenya’s statutory law on management of water resources is based on the common law and under the common law the land owner is presumed to own everything on the land upto the sky and down to the centre of the earth and this is a principle found in the course of property interest in land. At the same time the common law considers running water air and light to be things the property of which belongs to no person but the use to all persons. This principle is articulated in the case of Liggins V Inge 131 E.R 263. Although the common law considers that the landowner owns everything on land a landowner has no property in running water air and light. What is land ownership gives him is a natural light to the use of running water air and light. The Natural light is considered to be incidental to the land ownership. The land owner whose land abuts on a water course is known as a riparian owner. A riparian owner is considered to have a natural right to water. With respect to riparian ownership the principle is articulated in Stockport Waterworks Corporation V. Potter 159 ER 545. A right to water is the ability to exercise as of right the right which is available to all members of the public to use running water. None riparian owners can only exercise the right to use running water under an agreement with a riparian owner. An agreement providing for access over riparian land is known as an easement. In the absence of an easement non-riparian owner will be committing a trespass if he attempted to exercise the right to use running water. Because the right to use riparian water is shared by all riparian owners, its use must be reasonable. No one owner may use the water in a way which prejudices the right of other riparian owners. The principle of reasonable use is articulated in the case of Embrey v Owen 155 ER 579. The extent of the riparian owners right to water and the scope of reasonable use can be reduced to 3 rights:
1.Right of Access and Navigation
2.Right to the Natural quantity of the water in the water course;
3.Right to the Natural quality of the water in the water course;
These 3 are known as the riparian rights. The right to navigate the tidal river belongs to all members of the public ( a tidal river is a river that is influenced by the movement of the waves so typically a tidal river is salty River Tana in Kenya is a tidal river). The reason for the rights belonging to all members of the public is because the ownership of the land beneath a tidal river is vested in the State whereas the ownership of the land beneath a non-tidal river is vested in the riparian owner. The tidal part of the river is therefore accessible to any member of the public whereas the other part of the river is only accessible to the riparian owner. Only a riparian owner has a right of access to his land which enables him to embark and disembark on the non-tidal part of the river. This principle was established in the case of Lyon v Fishmongers Co. [1876] 1 A.C. 662 this is a case that arises out of fishing in the North Sea and the Fishmongers Company wanted a place on which to land after fishing but the particular sport on which they had established their key turned out to be non-tidal so the owner was denying them to embark or disembark on it. The riparian owners right to quantity enables him to abstract, divert, obstruct or impound the water. The water abstracted may be used for ordinary domestic purposes such as drinking, cooking and washing or it may be used for purposes such as irrigation which the common law considers to be extraordinary purposes. Where the riparian owner uses the water for ordinary purposes, there is no restriction in the quantity that he/she may abstract even if the abstraction exhausts all the water in the river. This principle is articulated in the case of McCartney v Londondery & Lough Swilley Railway Co. [1904] A.C. 301 Where the riparian owner uses the water for extraordinary purposes, the use is restricted to the extent that it is subject to the right of other riparian owners. Any use which prejudices the use by a lower riparian owner is considered to be unreasonable. Basically is a riparian owner A is using the water for irrigation, if it prejudices the right of G to use water for ordinary purpose he is said to prejudice the use of water by G. This principle is articulated in the case of Swindon Waterworks Co. v Wilks & Berks Canal Navigation Co. [1875 7 LR 697.
Under the common law the riparian owner is not allowed to use riparian water for foreign purposes. Foreign purposes means use of water outside of the riparian land. Any such use is considered as unreasonable even if it does not prejudice the use of any other riparian owner. The riparian owners right to quality entitles the riparian owner to the flow of water past his land in its natural state of purity and deteriorated by noxious matter discharged into it by others. This principle is articulated in the case of Jones v Llanwrst Urban District Council [1911] 1 Ch. D 393 The principle of riparian ownership is the principle of water resources management which operated under the common law. under this the management of water resources was based on balancing the competing demands of neighbouring riparian owners. As per the common law the riparian owner owns the land upto the midian line of the river but our statute specifically the Agriculture Act prohibits the riparian owner from cultivating up to 2 meters of the river. Under the Physical Planning Act the Local Authority can prohibit cultivation of the river beds. The common law principles have however been incorporated into statute law even if with modifications and the current statute governing water resources management is the water Act Cap 2002 which was enacted in July 2002 and came into effect in March 2003. The Water Act 2002 provides for the management, conservation, use and control of water resources. Secondly it provides for the acquisition and regulation of rights to use water and for the regulation of water supply and sewerage services. The Water Act has divided the management of the resource and the provision of the suppl


REGULATION OF PEST CONTROL PRODUCTS
PEST CONTROL PRODUCTS ACT Cap 346
This Act regulates the import/export manufacture distribution and use of products which are used for the control of pests and of the organic function of plants and animals. These are products used to control pest (pesticides) this is an Act that regulates the import/export and use of pesticides. The Act establishes the Pest Control Products Board and makes it the function of the Board to register pest control products. It requires that every person who desires to register a pest control product shall make an application to the Board. The Board may refuse to register the product if its use would lead to unacceptable risk or harm to
1. Things on or in relation to which the pest control product is intended to be used; or
2. To public health, plants, animals or the environment.
CLASSIFICATION
The Act establishes 3 classes of pest control products
1. A restricted class – a class of products which present significant environmental risks and these are products which are intended for use in aquatic and forestry situations; a good example was the Cyprus Trees being destroyed by aphid, spraying all the Cyprus trees would pose a problem to the environment since it was so widespread.
2. Commercial Class – class with environmental effects which are limited to a specific region.
3. Domestic Class – this is a class of products for which


(i) No special precautions are required in use
(ii) No equipment are required for inhalation hazard
(iii) No irreversible effects from repeated exposure.
(iv) Disposal of Containers can be safely done by placing it in the garbage bin; and
(v) The package sizes are limited to amounts that can be safely used and stored by consumers.


The best examples are insecticides i.e. doom.
PACKAGING
The law requires that the package shall be sufficiently durable and be designed and manufactured to contain the product safely under practical conditions of storage, display and distribution.
LABELLING
The act of labelling requires that every pest control product which is sold or made available must have a label and the label must show the following 14 things.
1. Name of the product;
2. Information on the nature and degree of hazard inherent in it;
3. Statement directing the user to read the label;
4. The common name of the active ingredients;
5. Contents of the active ingredient; active ingredient has both a common and scientific name so that the buyer may know;
6. Registration number of the product;
7. Net content;
8. Name and postal address of the registrant;
9. Directions for use of the product;
10. Information on the hazardous of handling storage display, distribution and disposal of the product including instructions on procedures to alleviate the hazard, the contamination and disposal of the product and the empty package;
11. Information identifying any significant hazard to things on or in relation to which the product is intended to be used or to public health, plants, animals or the environment;
12. First aid instructions;
13. The toxicological information essential to the treatment of a person who is poisoned for example antidotes, symptoms of poisoning and the ingredient that may affect the treatment;
14. A notice that it is an offence to use or store the product under unsafe conditions.
15. Package should bear a cautionary symbol, the cautionary symbols are also standard there is a symbol for poison or danger, there is a symbol for corrosivity which is a test tube with a hand sticking inside and crossed out, symbol for in-flammability which is fire, a symbol for explosivity.
The Act also requires that the premises for manufacturing formulating, packaging selling or storing the product must be licensed. The premises shall be of suitable design layout and construction to ensure the health of workers and to avoid contamination of the environment. The person who owns, operates or is in charge of the premises shall have adequate knowledge of the chemistry, toxicology, efficacy and general use of the product being dealt with and of the handling precautions of the products within the premises.


CONTROL OF RADIO ACTIVE SUBSTANCES


THE RADIATION PROTECTION ACT
This Act controls the import/export possession and use of radio active substances and irradiating apparatus (equipment which emit radio activity). Basically radiation occurs because of the impact of ultra violet light.
The Act provides that
(i) no one shall knowingly without a licence manufacture or otherwise produce
(ii) sell or otherwise deal with,
(iii) have in his possession for use,
(iv) import or cause to be imported,
(v) export or cause to be exported any radio active substance or irradiating apparatus.


Application for a licence shall be made to the Radiation Protection Board which is established under the Act. The Minister is required to prescribe precautions to be taken to prevent injury being caused by ionising radiation to the health of persons employed in places where radio active substances are manufactured, produced, treated, stored or used or where irradiating apparatus is used or where other persons are likely to be exposed to harmful radiation. He is also required to prescribe methods of disposal for radio active waste products and the transport, storage and use of radio active material. Finally to prescribe maximum working hours of persons working with radio active material.

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