The Environment and Climate Change Law Review: Kenya
The Kenyan environmental and climate change regimes are enshrined in the Constitution of Kenya, and supported by several sector-specific statutes and policies. Further, pursuant to Article 2(5) of the Constitution, the general rules of international law, which include principles of international environmental law, form part of Kenyan law relating to the environment and climate. The international environmental legal regime has contributed greatly to the development of Kenyan policies and legislation on the protection of the environment. Treaty law has also been imported into Kenya's legal regime pursuant to Article 2(6) of the Constitution and the Treaty Making and Ratification Act 2012.
International environmental principles such as the 'polluter pays' principle, public participation in environmental conservation and management, sustainability, and inter- and intra-generational equity, among others, find expression to varying extents in Kenyan legal texts on the environment and climate change.
As a starting point, the preamble to the Constitution states that 'the people of Kenya are respectful of the environment, which is Kenya's heritage, and are determined to sustain it for the benefit of future generations'. Several provisions of the Constitution reflect this elevation of broad environmental principles. Article 10 entrenches the principle of sustainability as one of the national values and principles of governance, while Article 42 guarantees the right to a clean and healthy environment, including the right to have the environment protected for the benefit of present and future generations.
Although a number of legislative and policy options have been set in motion by the Kenyan government2 to mainstream environmental and climate change obligations into the country's economic blueprint, the Climate Change Act 2016 and the regulations contemplated under it qualify as the most notable recent direct legislation in this area.
In terms of policy initiatives, the Climate Change Act 2016 requires the cabinet secretary to formulate a National Climate Change Action Plan (NCCAP), which shall be reviewed every five years.3 The resultant NCCAP 2018–2022 (the Plan) aims to 'further Kenya's development goals by providing mechanisms and measures to achieve low-carbon climate-resilient development'.4 The Plan provides a framework for Kenya to deliver on its nationally determined contributions (NDCs) under the Paris Agreement.5 The Plan focuses on seven priority climate action areas where government efforts should be directed to achieve low-carbon-resilient development. These priority action areas are disaster (drought and floods) risk management, food and nutrition security, water and the blue economy, forestry, wildlife and tourism, health, sanitation and human settlements, manufacturing, and energy and transport.6
The NCCAP is aligned with the Kenyan government's developmental policy roadmap comprising Vision 20307 and sustainable development goals (SDGs), all which reflect the commitment by the Kenyan government to achieve low-carbon and climate-resilient development.
Vision 2030 was launched in 2008 as Kenya's development blueprint covering the period 2008 to 2030. It was aimed at making Kenya a newly industrialising 'middle income country providing high-quality life for all its citizens by the year 2030'. Under the Social Pillar of Vision 2030, it is explicitly stated that Kenya's journey towards widespread prosperity involves the building of a just and cohesive society that enjoys equitable social development in a clean and secure environment. The vision of a clean and sustainable environment by 2030 is to be attained with improved pollution and waste management, improved capacity to adapt to global climate change and the harmonisation of environmental laws for better environmental governance and planning.
As an example of its commitment to this vision, the Kenyan government has at times taken radical conservation measures such as involuntary relocation of rural communities from ecologically sensitive areas such as the Mau Forest, a major water catchment area. This is part of the broader plan to rehabilitate the degraded environment and achieve 10 per cent forest cover nationally.8 The forest is the largest remaining indigenous forest in Kenya and contains the largest of the country's five water towers, as well as the largest closed-canopy forest ecosystem. Despite political resistance and legal challenges on the mode of carrying out the relocations, the action demonstrates renewed commitment by the Kenyan government to sustainability and environmental restoration.
In a similar vein, the Kenyan government banned the introduction of all plastic containers, straws and other related products to any national park, national reserves or conservation areas effective June 2020.9 There has been some corresponding fiscal incentive for corporates investing in recycling, including a 15 per cent corporate tax incentive for the first five years of operation and VAT exemption for the supply of machinery and equipment used in constructing plastic recycling plants and services to those plants.10
The Constitution of Kenya 2010
Article 10 of the Constitution lays out national values and principles of governance, such as sustainable development, that guide government action in implementing laws or policy. Article 42 guarantees the right to a clean and healthy environment and requires the environment to be protected for present and future generations.
Article 69 provides for the sustainable use, management and conservation of natural resources to ensure equitable sharing of accruing benefits. Article 70 reinforces the right to a clean and healthy environment and provides a means for enforcement action and compensation for those deprived of this right.
Of notable significance is the creation of the Environmental and Land Court under Article 162. This specialised court has the status of a High Court in Kenya and deals with environmental protection matters. The court has powers to make preventive, cessation and compensatory orders.
The Environment and Management Co-ordination Act (EMCA) 1999
This Act is the operative law on matters concerning the environment. It is Kenya's first framework environmental law. It sets out general principles, creates administrative bodies, lays out environmental quality standards and provides for the inspection, enforcement and punishment of environmental offences. It complements other sectoral laws on water, land, forest, mining and wildlife, among others. EMCA was enacted against a backdrop of 78 sectoral laws dealing with various components of the environment, the deteriorating state of Kenya's environment, and increasing social and economic inequalities, the combined effect of which negatively impacted on the environment. The supreme objective underlying the enactment of EMCA 1999 was to bring harmony in the management of the country's environment.
The Climate Change Act 2016
The goal of the Climate Change Act 2016 is to provide a regulatory framework for an enhanced response to climate change, and to provide mechanisms and measures to improve resilience to climate change and promote low carbon development. The Act adopts a mainstreaming approach, provides a legal basis for climate change activities through the National Climate Change Action Plan, and establishes the National Climate Change Council and the Climate Fund.
With this enactment, Kenya joins the league of nations that have taken concrete steps to domesticate the Paris Accord on Climate Change. The main object of the Act is to be applied in the development, management, implementation and regulation of mechanisms to enhance climate change resilience and low-carbon development for the sustainable development of Kenya.11
The Energy Act, 2016
The Act has a very broad scope, covering all forms of energy, from fossil fuels to renewables. The Act mandates the government to promote the development and use of renewable energy, including biodiesel, bioethanol, biomass, solar, wind and hydropower, among others. The Act provides a useful supporting framework for the transition to a green economy with likely gains in environmental protection and climate change.
The United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement
Kenya has ratified both the UNFCCC and the Paris Agreement, under whose auspices it has assumed obligations to plan, take action and report on measures taken to mitigate global warming.12
The National Environmental Management Authority (NEMA)
The NEMA is established under the Environment Management and Co-ordination Act 1999 (EMCA).13 Its main purpose is to exercise general supervision on all matters related to the environment and to implement policies related to the environment.14 It is the principal instrument of the government for the implementation of all policies relating to the environment.
The NEMA is a Semi-Autonomous Government Agency in the Ministry of Environment and Forestry.
The Environment and Land Court
This court is established pursuant to Article 162(2) of the Constitution and Section 4 of the Environment and Land Court Act. The court is a superior court and has jurisdiction throughout Kenya with original and appellate jurisdiction to hear and determine disputes relating to environment planning, climate change issues and any other disputes related to land and the environment as per Section 13 of the Act.
The National Environment Tribunal
The Tribunal is established under section 125 of EMCA with jurisdiction to entertain appeals from parties aggrieved by decisions made by NEMA such as:
- the grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit, under the Act or its regulations;
- the imposition of any condition, limitation or restriction on a person's licence under the Act or its regulations;
- the revocation, suspension or variation of a person's licence under the Act or its regulations;
- the amount of money required to be paid as a fee under the Act or its regulations; and
- the imposition against a person of an environmental restoration order or environmental improvement order by the NEMA under the Act or its regulations.
The National Climate Change Council
The council is established by the Climate Change Act, 2016 to, among other functions, ensure mainstreaming of climate change functions by the national and county governments and oversee the implementation of the NCCAP. The Council also ensures that climate change functions are mainstreamed into national and county budgets, plans and programmes. The importance of the council is illustrated by the fact that it is chaired by the President.
The Climate Change Directorate
This body is established under Section 9 the Climate Change Act. It is the lead agency on climate change action plans and delivers operational plans to the cabinet secretary. It serves as the secretariat for the Climate Change Council.15
National and county governments
The national government, through the cabinet secretary responsible for environmental matters, retains the broad responsibility for setting policy at a national level for promoting environmental sustainability and mitigating the effects of climate change. The county governments have adopted a similar arrangement where one of the county executive committee members has designated functions relating to the environment and ancillary matters.
Enforcement action by regulators
In terms of enforcement, the Environmental and Land Court (ELC) has jurisdiction to hear disputes relating to the environment and land. Further, any person aggrieved by the decision of the National Environmental Tribunal may appeal to the ELC. Additional rights of appeal exist against decisions of the ELC to the Court of Appeal, and ultimately the Supreme Court.
The robust environmental rights-based system contemplated under the Constitution and other laws enables persons to institute actions to enforce environmental rights generally.
For instance, Section 23 of the Climate Change Act allows any person to apply to the ELC, 'alleging that a person has acted in a manner that has or is likely to adversely affect efforts towards mitigation and adaptation to the effects of climate change' and the court may 'order a discontinuance or prevention of these actions' or 'provide compensation to a victim of a violation relating to climate change duties'.
Civil liability in environmental matters is contemplated by legislation when it comes to compensation for damages. The Constitution of Kenya empowers persons to seek redress when their right to a healthy and clean environment has been violated or infringed.16 The courts are empowered to issue orders that prevent, stop or discontinue acts harmful to the environment and provide compensation to a wronged party.17
A party is not required to prove denial, threat or violation of the right; the court can on its own motion step in and issue orders to safeguard the environment and protect the rights of citizens.18
However, apart from the institutional framework, one of the interesting features of the Climate Change Act is that it creates an avenue for citizens to hold governments and corporations accountable for reducing greenhouse gas (GHG) emissions. The Act has provisions for citizens to sue private and public entities that frustrate efforts to reduce the impact of climate change. A salient feature of this law is the fairly low bar that is set for the purposes of establishing culpability. The plaintiff merely has to demonstrate that a corporation is not undertaking sufficient measures to address climate change. There is no need to further prove actual harm, loss or injury to any person. This departs significantly from the well-established position in public interest environmental litigation – that although one does not have to demonstrate direct harm, nonetheless the plaintiff must, at a minimum, establish that a section of society will suffer harm.
The EMCA also provides for criminal liability and allows environmental inspectors to institute criminal proceedings against any person who commits an offence under Section 118. Part XIII of the EMCA provides for the offences with defined penalties for each.
Section 66 of the EMCA affords the government a latitude of release from criminal and civil liability under certain circumstances. The defence is, however, not available to private parties. The section is worded in the following terms:
No civil or criminal liability in respect of a project or consequences resulting from a project shall be incurred by the Government, the Authority or any impact assessment study, evaluation or review report or grant of an environmental impact assessment licence or by reason of any condition attached to such licence.
Reporting and disclosure
The EMCA grants the director-general powers to prescribe activities for which records should be kept for the purposes of inspection, monitoring or any other purpose under the Act.19 Public departments and national entities are also required to report annually to the Climate Change Council on performance and progress on climate change assigned duties.20 The Council may also require a private entity to make a report on its status in regards to performance of its climate change obligations.21
Section 16 of the Access to Information Act protects individuals who make disclosures in the public interest from reprisals or punishment. Disclosure of information to NEMA regarding environmental harm falls under this category. The Witness Protection Act provides for the witness protection programme that protects witnesses in any criminal or civil proceeding.
i Air quality
According to the Kenya National Bureau of Statistics Economic Survey 2020, respiratory system disease was the leading cause of morbidity at 25 per cent of all disease incidences in Kenya in 2020. Additionally, approximately 21.9 million people contracted respiratory diseases as a result of air pollution. This highlights the critical need for urgent measures to limit air pollution in Kenya.
Section 78 of EMCA empowers the cabinet secretary, in accordance with recommendations from NEMA, to establish criteria and procedures for the measurement of air quality, set air quality standards and take other measures to control air pollution, such as issuing guidelines to minimise GHG emissions and the application of suitable technology. Section 79 of EMCA further empowers the cabinet secretary to announce controlled areas and prescribe the air emission standards in respect of such areas. Section 101 in turn sets out standards of noise and recommends to NEMA minimum standards for noise emission and vibration pollution.
The Environmental Management and Co-ordination (Air Quality) Regulations 2014 provide for the prevention, control and abatement of air pollution for clean, healthy and ambient air. They prohibit certain forms of pollution, and provide guidelines on levels of pollution that are permissible as well as issuing emission licences.
The Regulations apply to all internal combustion engines, all premises, places, processes, operations or works, and any other appliances or activities the cabinet secretary so designates. The Regulations prescribe areas deemed to be controlled and contain important provisions on limiting emissions from demolition, waste incinerators, open burning and cross-border pollution.
ii Water quality
The Environmental Management and Co-ordination (Water Quality) Regulations 2006 apply to water used for domestic, industrial, agricultural and any other purposes. The objective is to regulate the discharge of effluent and provide guidelines and standards for disposing of other pollutants.
In National Environment Management Authority & 3 others v. Maraba Lwatingu Residents Association & 505 others, the Environment and Land Court upheld the decision of the National Environment Tribunal cancelling an EIA licence for the construction of sewage ponds by Lake Victoria North Water Services Board and ordering restoration on the basis that the appellants did not conduct adequate public participation and the mitigation measures under the Water Regulations were not adhered to.22
The EMCA empowers NEMA to make regulations that provide for the labelling, classifying and handling of hazardous chemicals.23 It also prohibits and creates the offence of discharging chemicals into the environment contrary to the regulations enacted.24 The draft Environment Management and Coordination (Toxic and Hazardous Industrial Chemicals and Materials Management) Regulations 2018 have subsequently been developed. The regulations will see Kenya aligning itself with the seventh edition of the Globally Harmonised System of classifying and labelling chemicals, which will be mandatory.
The draft regulations require companies to acquire permits when they want to import or export toxic and hazardous chemical substances. Companies are also required to have a permit in order to manufacture hazardous and toxic chemicals. Any person in possession of hazardous chemicals declared by any law to be disposed of is required to notify NEMA. The draft regulations also require importers, exporters and manufacturers of toxic chemicals to maintain records and reports.
iv Solid and hazardous waste
Section 87 of the EMCA prohibits the discharge of waste in a manner that causes pollution to the environment or ill health. It also requires any person operating or transporting waste to have a valid licence from NEMA. Any person operating a waste disposal site is required take adequate measures to minimise pollution under the same section.
Under the Environmental Management and Co-ordination (Waste Management) Regulations 2006, persons who engage in activities likely to generate any hazardous waste need to have a valid Environmental Impact Assessment licence from NEMA. Producers of hazardous waste are required to treat the waste in a waste facility before disposal. They are also required to ensure that every container or package for storing the waste is secure and labelled in easily legible characters written in English or Kiswahili.
Where a party intends to export hazardous waste, they must do so with a valid permit issued by NEMA and a valid prior informed consent document issued by the designated national authority of the receiving country. Finally, an applicant for a permit in dealing with hazardous waste must satisfy NEMA that he or she has taken out an insurance policy covering risks likely to arise out of the activity for which the licence is required.
In the case of Martin Osano Rabera & another v. Municipal Council of Nakuru & 2 others  eKLR, the Environment and Land Court declared that the first respondent and NEMA (second respondent) had violated the petitioner's right to a healthy and clean environment with regard to the manner in which they had operated a dump site. Moreover, the third respondent was required to apply for a waste disposal licence under Sections 87, 88 and 89 of the EMCA.
The Draft Environmental Management and Co-ordination (Extended Producer Responsibility) Regulations 2020 set out additional obligations for producers25 and provide for mandatory extended producer responsibility schemes for all products and packaging in all phases of their life cycle to enhance environmental sustainability. Regulation 3 contemplates the scheme will be critical in, among others, the reduction of waste at source, the promotion of environmentally friendly products' designs and packaging, and cleaner production processes.
v Contaminated land
Section 93 of the EMCA prohibits the disposal of hazardous materials into the environment and makes such disposal an offence. A person convicted of this offence in addition to any other sentence is bound to pay the cost of removal of the hazardous material and the costs of third parties in the form of restoration, restitution and compensation. The owner of the source of the discharge is required to mitigate the impact of the discharge by informing the authorities, commencing immediate clean-up operations, and complying with other rules issued by NEMA.
Under Section 11 of the Land Act 2012, an obligation is imposed on the National Land Commission to identify ecologically sensitive areas that are within public lands and demarcate or take any other justified action on those areas and act to prevent environmental degradation and climate change.
The Integrated National Land Use Guidelines26 provide for methods of preventing the contamination of land through ensuring compliance and enforcing licensing conditions. They provide for the maintenance of a Contaminated Land Register, which will be made accessible to the public. Further, the Guidelines empower NEMA and other relevant authorities to undertake site investigations of the contaminated land and evaluate the remedial reports filed by proponents. NEMA is further empowered to develop and approve site management plans to guide in the management of health and environmental harm.
Under the National Land Use Policy,27 it is recognised that land-use planning is essential to the efficient and sustainable utilisation and management of land and land-based resources. The government of Kenya is required, pursuant to the policy, to establish measures to control the degradation of land through the abuse of inputs and inappropriate land-use practices. In urban settings, proposed land conservation measures under the policy include the rehabilitation of dumping sites and land that has been subjected to environmental degradation.
In a landmark case of KM & 9 Others v. Attorney General & 7 Others  eKLR, the Environmental and Land Court ordered the state and two private investors to pay US$12 million to residents of an informal settlement in Mombasa who were affected by lead poisoning that emanated from a factory within the area. The state agencies responsible for the environment were also ordered to clean up any remaining lead deposits within four months or face further sanctions, and to develop and implement regulations adopted from best practices with regard to lead and lead alloys manufacturing plants.
The Climate Change Act 2016 mandates the National Climate Change Council to set targets for the regulation of GHG emissions (Section 6). Section 13 of the Act further requires the National Climate Change Action Plan to prescribe measures and mechanisms to review levels and trends of GHG emissions. Section 15 further imposes an obligation on all state departments and national government public entities to report on sectoral GHG emissions for the national inventory.
The National Environmental Management Authority is empowered, pursuant to Section 17, to regulate, enforce and monitor compliance on levels of GHG emissions on behalf of the National Climate Change Council. Failure to comply may incur a fine of up to 1 million Kenyan shillings and five years' imprisonment for officers of an entity.
The Act also provides for incentives to those who encourage and put in place measures for the elimination of climate change, including the reduction of GHG emissions and the use of renewable energy.
The NCCAP 2018–2022 provides detailed guidelines for GHG emissions. According to the NCCAP, actions in the six mitigation sectors set out in the UNFCCC – agriculture, energy, forestry, industry, transport and waste – are expected to lead to lower emissions than in the projected baseline and help to meet Kenya's mitigation NDC to abate GHG emissions by 30 per cent by 2030 relative to the business-as-usual scenario.
As part of the priority enabling actions, the NCCAP requires the National Treasury and Planning department, among other lead agencies, to identify policy and fiscal incentives (such as tax incentives, reduced energy tariffs, low-interest loans and public-private partnerships) that promote the uptake of climate-friendly technology by 30 December 2020. The National Treasury is responsible for developing climate finance strategy and regulations, and the National Climate Change Fund is also vested in the department.
The NCCAP expects the public sector to play a role in the planning, implementation and monitoring of climate change interventions, with an emphasis on enhancing adaptive capacity and improving the ability to withstand climate shocks. The private sector is also expected to take measures towards reducing GHG emissions from business operations.
It remains too early to assess whether the Kenyan government has delivered on its current targets on climate action. Most of the timelines contemplated under the NCCAP were set to lapse at the end of 2020 or in 2023.
Section 91 of the Energy Act establishes a renewable energy Feed-in-Tariff (FiT) system with the objectives of, among others, catalysing the generation of electricity through renewable energy sources and reducing GHG emissions by lessening reliance on non-renewable energy resources. The FiT policy was developed by the Ministry of Energy in 2008 as a guideline on the government's commitment to incentivise the generation and use of renewable energy through preferential tariffs.
There has been limited litigation in the area of climate action in Kenya. However, citizens are becoming more empowered to take up action to enforce their environmental rights. A recent notable case is Save Lamu & 5 others v. National Environmental Management Authority (NEMA) & another  eKLR, where a community-based organisation representing the interests and welfare of Lamu residents challenged the issuance of an EIA licence for a proposed 1,050MW coal-fired power plant in Lamu, a proclaimed World Heritage Site. One of the grounds of the challenge was that the project was likely to contribute to climate change and was inconsistent with Kenya's low-carbon development commitments. The tribunal, in applying the precautionary principle, noted that 'the omission to consider the provisions of the Climate Change Act 2016 was significant even though its eventual effect would be unknown'. The licence was consequently cancelled and a fresh EIA study ordered.
However, given recent developments where financiers have pulled out owing to concerted lobbying efforts against the project over environmental concerns, it is unclear as to whether the project will be developed.28
Outlook and conclusions
Transitioning to a low-carbon economy is a key component of Kenya's Vision 2030. The implemention of the National Climate Change Action Plan remains a priority for the Kenyan government. The regulations contemplated under the Climate Change Act 2016 will further provide greater certainty on the government's plans for achieving climate sustainability. It is expected that the regulations on climate change will fundamentally affect the private sector in terms of imposing additional reporting obligations on climate action.
1 Stephen Mallowah is a partner and Christopher Oyier is an associate at TripleOKLaw LLP.
2 For instance, the Kenyan government banned the use of plastic bags vide Gazette Notice dated 28 February 2017 (see subsequent challenge by interest groups in Kenya Association of Manufacturers & 2 others v. Cabinet Secretary, Ministry of Environment and Natural Resources & 3 others  eKLR; see also case challenging moratorium on logging in Nyeri Timber Manufacturers Association & 3 others v. Kenya Forest Service & 3 others  eKLR.
3 Climate Change Act 2016, s 13(8).
4 Ministry of Environment and Forestry, National Climate Change Action Plan (Kenya): 2018–2022 (2018).
9 See also Ministry of Environment and Forestry, 'Implementation Plan for the Ban of Single Use Plastics in Protected Areas' (February 2020) at www.environment.go.ke/wp-content/uploads/2020/03/action-plan.pdf.
10 See Tax Laws (Amendment) Act 2020.
11 Climate Change Act 2016, s 3(1).
12 Paris Agreement (adopted 12 December 2015, came into force 4 November 2016) 1771 UNTS 107, Article 4.
13 Environment Management and Co-ordination Act 1999, s 7(1).
14 ibid, s 9(1).
15 Climate Change Act 2016, s 9(9).
16 Constitution of Kenya 2010, Article 70.
17 Environment and Lands Court Act 2011, s 13(7).
18 Kariuki Muigua, 'Strengthening the Environmental Liability Regime in Kenya for Sustainable Development' (26 April 2019), http://kmco.co.ke/wp-content/uploads/2019/09/Strengthening-the-Environmental-Liability-Regime-in-Kenya-for-Sustainable-Development-Kariuki-Muigua-26th-April-2019.pdf (accessed 22 November 2020).
19 Environment Management and Co-ordination Act 1999, s 121.
20 Climate Change Act 2016, s 15(5)(f).
21 ibid, s 16(3).
22 National Environment Management Authority & 3 others v. Maraba Lwatingu Residents Association & 505 others  eKLR
23 Environment Management and Co-ordination Act 1999, s 92
24 ibid, s 93
25 'Producer' is broadly defined to include 'an entity that introduces goods, products and packaging into the market by authorised means including transformation of raw material and into finished goods or product for sale, or other use including intermediate processes that involve production, finishing or semi-manufactured goods, seller of already manufactured, or importers, manufacturers, fillers and converters, distributors of material, products and packaging, expected to assume extended producer responsibility obligations for products that they put to the market'.
26 National Environment Management Authority, 'Integrated National Land Use Guidelines' (2011) at www.nema.go.ke/images/Docs/Guidelines/national%20landuse%20guidelines-nema.pdf accessed on 21 November 2020.
28 Macharia Kamau M & Sunday F (2020) 'Coal dream up in flames as last backer of Lamu project pulls out', The Standard, 24 November 2020. Available at: www.standardmedia.co.ke/business/financial-standard/article/2001394935/coal-dream-up-in-flames-as-last-backer-of-lamu-project-pulls-out (accessed 14 December 2020).