Environmental Inspector means any environmental inspector appointed or designated under section 117;
environmental management includes the protection, conservation and sustainable use of the various elements or components of the environment;
environmental monitoring means the continuous or periodic determination of actual and potential effects of any activity or phenomenon on the environment whether short-term or long-term;
environmental planning means both long-term and short-term planning that takes into account environmental exigencies;
environmental resources includes the resources of the air, land, flora, fauna and water together with their aesthetical qualities;
environmental restoration order means an order issued under section 108; environmentally friendly includes any phenomenon or activity that does not cause harm or degradation to the environment;
“ex-situ conservation means conservation outside the natural ecosystem and habitat of the biological organism;
exclusive economic zone means the exclusive economic zone established and delimited under section 4 of the Maritime Zones Act;
financial year means the period of twelve months ending on the thirtieth June in every year;
General Fund means the General Fund established under section 20; genetic resources means genetic material of actual or potential value;
good environmental practice means practice that is in accordance with the provisions of this Act or any other relevant law;
hazardous substance means any chemical, waste, gas, medicine, drug, plant, animal or micro-organism which is likely to be injurious to human health or the environment;
hazardous waste means any waste which has been determined by the Authority to be hazardous waste or to belong to any other category of waste provided for in section 91;
“in-situ conservation means conservation within the natural ecosystem and habitat of the biological organism;
intergenerational equity means that the present generation should ensure that in exercising its right to beneficial use of the environment, the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
4
intragenerational equity means that all people within the present generation have the right to benefit equally from the exploitation of the environment, and that they have an equal entitlement to a clean and healthy environment;
lead agency means any Government ministry, department, parastatal, state corporation or local authority, in which any law vests functions of control or management of any element of the environment or natural resource;
local authority has the meaning assigned to it in section 2 of the Local Government Act;
Minister means the Minster for the time being responsible for matters relating to the environment;
mixture containing oil means a mixture of substances or liquids with such oil content as may be specified under this Act or, if such oil content is not specified, a mixture with an oil content of one hundred parts or more in one million parts of the mixture;
National Council of Non-Governmental Organisations means the Council established by section 23 of the Non-Governmental Organizations Co-ordination Act, 1990;
National Environment Action Plan means the plan referred to in section 37; natural resources includes resources of the air, land, water, animals and plants including their aesthetic qualities;
noise means any undesirable sound that is intrinsically objectionable or that may cause adverse effect on human health or the environment;
occupational air quality means the concentration prescribed under or pursuant to this Act of a substance or energy in the atmosphere within a structure or under-ground space in which human activities take place;
occupier means a person in occupation or control of premises, and in relation to premises different parts of which are occupied by different persons, means the respective persons in occupation or control of each part; oil includes
crude oil, refined oil, diesel oil, fuel oil and lubricating oil; and
any other description of oil which may be prescribed; owner in relation to any premises means
the registered proprietor of the premises;
the lessee, including a sub-lessee of the premises;
the agent or trustee of any other owners described in paragraphs (a) and (b) of this interpretation section or where such owner as described in paragraphs
(a) and (b) cannot be traced or has died, his legal personal representative;
the person for the time being receiving the rent of the premises whether on his own account or as agent or trustee for any other person or as receiver or who would receive the rent if such premises were let to a tenant; and
in relation to any ship means the person registered as the owner of the ship or in the absence of registration, the person owning the ship; except that in the case of a ship owned by any country and operated by a company which in that country is registered as the ships operator, owner shall include such country and the master of the ship;
ozone layer means the layer of the atmospheric zone above the planetary boundary layer as defined in the Vienna Convention for the Protection of the Ozone Layer, 1985;
pollutant includes any substance whether liquid, solid or gaseous which
may directly or indirectly alter the quality of any element of the receiving environment;
is hazardous or potentially hazardous to human health or the environment; and includes objectionable odours, radio-activity, noise, temperature change or physical, chemical or biological change to any segment or element of the environment;
polluter-pays principle means that the cost of cleaning up any element of the environment damaged by pollution, compensating victims of pollution, cost of beneficial uses lost as a result of an act of pollution and other costs that are connected with or incidental to the foregoing, is to be paid or borne by the person convicted of pollution under this Act or any other applicable law;
pollution means any direct or indirect alteration of the physical, thermal, chemical, biological, or radio-active properties of any part of the environment by discharging, emitting, or depositing wastes so as to affect any beneficial use adversely, to cause a condition which is hazardous or potentially hazardous to public health, safety or welfare, or to animals, birds, wildlife, fish or aquatic life, or to plants or to cause contravention of any condition, limitation, or restriction which is subject to a licence under this Act;
practicable means reasonably practicable having regard, among other things, to local conditions and knowledge and the term practicable means include the provision and the efficient maintenance of plants and the proper use thereof, and the supervision by or on behalf of the occupier of any process or operation;
5
precautionary principle is the principle that where there are threats of damage to the environment, whether serious or irreversible, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation;
premises include measures, buildings, lands, and hereditaments in every tenure and machinery, plant or vehicle used in connection with any trade carried on at any premises;
project includes any project, programme or policy that leads to projects which may have an impact on the environment;
project report means a summary statement of the likely environmental effect of a
proposed development referred to in section 58; proponent means a person proposing or executing a project, programme or an undertaking specified in the Second Schedule;
proprietary information means information relating to any manufacturing process, trade secret, trade mark, copyright, patent or formula protected by law in Kenya or by any international treaty to which Kenya is a party;
Provincial Director of Environment means the Provincial Director of Environment appointed under section 16;
Provincial Environment Committee means the Provincial Environment Committee established under section 29;
Public Complaints Committee means the Public Complaints Committee established under section 31;
radiation includes ionising radiation and any other radiation likely to have adverse effects on human health and the environment;
Regional development authority means a regional development authority established by an Act of Parliament;
regulations mean regulations made under this Act;
Restoration Fund means the National Environment Restoration Fund established under section 25;
segment in relation to the environment means any portion or portions of the environment expressed in terms of volume, space, area, quantity, quality or time or any combination thereof;
ship includes every description of vessel or craft or floating structure;
soil includes earth, sand, rock, shales, minerals, vegetation, and the flora and fauna in the soil and derivatives thereof such as dust;
standard means the limits of discharge or emissions established under this Act or under regulations made pursuant to this Act or any other written law;
sustainable development means development that meets the needs of the present generation without compromising the ability of future generations to meet their needs by maintaining the carrying capacity of the supporting ecosystems;
sustainable use means present use of the environment or natural resources which does not compromise the ability to use the same by future generations or degrade the carrying capacity of supporting ecosystems;
territorial waters means territorial waters provided for under section 3 of the Maritime Zones Act;
trade means any trade, business or undertaking whether originally carried on a fixed premises or at varying places which may result in discharge of substances and energy and includes any activity prescribed to be a trade, business or undertaking for the purpose of this Act;
Tribunal means the National Environment Tribunal established under section 125; Trust Fund means the National Environment Trust Fund established under section 24;
waste includes any matter prescribed to be waste and any matter, whether liquid, solid, gaseous, or radioactive, which is discharged, emitted, or deposited in the environment in such volume composition or manner likely to cause an alteration of the environment;
water includes drinking water, river, stream, water-course, reservoir, well, dam, canal, channel, lake, swamp, open drain, or underground water;
wetland means areas permanently or seasonally flooded by water where plants and animals have become adapted;
PART II GENERAL PRINCIPLES
(1) Every person in Kenya is entitled to a clean and healthy environment and had the duty to safeguard and enhance the environment.
The entitlement to a clean and healthy environment under subsection (1) 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 conferred under subsection (1) 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 take such orders, issue such writs or give such directions as it may deem appropriate to
6
prevent, stop or discontinue any act or omission deleterious to the environment;
compel any public officer
to take measures to prevent or discontinue any act or omission deleterious to the environment;
require that any on-going activity be subjected to an environment audit in accordance with the provisions of this Act;
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
provide compensation for any victims 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.
A person proceeding under subsection (3) of this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendants act or omission has caused or is likely to cause him any personal loss or injury provided that such action
is not frivolous or vexations; or
is not an abuse of the court process.
In exercising the jurisdiction conferred upon it under subsection (3), the High Court shall be guided by the following principles of sustainable development;
the principle of public participation in the development of policies, plans and processes for the management of the environment;
the cultural and social principle 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;
the principle of international co-operation in the management of environmental resources shared by two or more states;
the principles of intergenerational and intragenerational equity;
the polluter-pays principle; and
the pre-cautionary principle.
PART III ADMINISTRATION
The National Environment Council
(1) There is established a council to be known as the National Environment Council (hereinafter referred to as the Council) which shall consist of-
the Minister who shall be the chairman;
the Permanent Secretaries in the Ministries for the time being responsible for the matters specified in the First Schedule;
two representatives of public universities in Kenya to be appointed by the Minister;
two representatives of specified research institutions in Kenya to be appointed by the Minister;
three representatives of the business community, to be appointed by the Minister, one of whom shall be a representative of oil marketing companies;
two representatives of Non-Governmental Organisations active in the environmental field to be appointed by the Minister;
the Director-General who shall be the secretary; and
such number of other members as may, from time, be co-opted by the Minister to be members of the Council.
Every appointment under paragraph (f) of subsection (1) shall be made from a list of nominees submitted by the Non-Governmental Organizations Council.
Every appointment under paragraph (c), (d), (e), (f) and (h) of subsection (1) shall be by name and by notice in the Gazette and shall be for a renewable period of three years, but shall cease if the appointee
serves the Minister with a written notice of resignation; or
is absent from three consecutive meetings of the Council without the permission of the Minister; or
is convicted of an offence and sentenced to imprisonment for a term exceeding six months or to a fine exceeding ten thousand shillings; or
is incapacitated by prolonged physical or mental illness from performing his duties as a member of the Council; or
conducts himself in a manner deemed by the Minister, in consultation with the Council, to be inconsistent with membership of the Council; or
7
(f) is adjudged bankrupt or has entered into a scheme or arrangement with
8. The Headquarters of the Authority shall be in Nairobi.
his creditors.
The Council shall
be responsible for policy formulation and directions for purposes of this 9. (1) The object and purpose for which the Authority is established is to exercise
Act;
general supervision and co-ordination over all matters relating to the environment
(b) set national goals and objectives and determine policies and priorities for
and to be the principal instrument of Government in the implementation of all
the protection of the environment;
policies relating to the environment.
(c) promote co-operation among public departments, local authorities, private
(2) Without prejudice to the generality of the foregoing, the Authority shall
sector, Non-Governmental Organisations and such other organisations
engaged in environmental protection programmes; and
(a)
co-ordinate the various environmental management activities being
(d) perform such other functions as are assigned under this Act.
6. (1) The Council shall meet at least three times in every financial year, at such place
undertaken by the lead agencies and promote the integration of
as it may deem appropriate for the transaction of its business.
environmental considerations into development policies, plans,
(2)
The Minister shall preside at all meetings of the Council but in his absence a
programmes and projects with a view to ensuring the proper management
person appointed by him shall preside on his behalf at such a meeting.
and rational utilization of environmental resources on a sustainable yield
(3)
The secretary to the Council shall prepare and keep all the records of the
basis for the improvement of the quality of human life in Kenya;
business conducted at the meetings of the Council.
(b)
take stock of the natural resources in Kenya and their utilisation and
(4)
The powers of the Council shall not be affected by any vacancy in the
membership thereof nor by any defect in the appointment of a person
conservation;
purporting to be a member of the Council.
(c) establish and review in consultation with the relevant lead agencies, land
(5) Subject to this section, the Council shall regulate its own procedure.
The Authority
use guidelines;
7. (1) There is established an Authority to be known as the National Environment
(d)
examine land use patterns to determine their impact on the quality and
Management Authority.
quantity of natural resources;
(e)
carry out surveys which will assist in the proper management and
(2)
The Authority shall be a body corporate with perpetual succession and a
conservation of the environment;
common seal and shall, in its corporate name, be capable of
(f)
advise the Government on legislative and other measures for the
management of the environment or the implementation of relevant
(a) suing and being sued;
international conventions, treaties and agreements in the field of
environment, as the case may be;
(b)
taking, purchasing, charging and disposing of movable and immovable
(g)
advise the Government on regional and international environmental
property;
conventions, treaties and agreements to which Kenya should be a party
and follow up the implementation of such agreements where Kenya is a
(c)
borrowing money;
party;
(h)
undertake and co-ordinate research, investigation and surveys in the field
(d) entering into contracts; and
of environment and collect, collate and disseminate information about the
findings of such research, investigation or survey;
(e) doing or performing all such other things or acts for the proper
(i)
mobilise and monitor the use of financial and human resources for
administration of this Act, which may lawfully be performed by a body
environmental management;
corporate.
8
identify projects and programmes or types of projects and programme, plans and policies for which environmental audit or environmental monitoring must be conducted under this Act;
initiate and evolve procedures and safeguard for the prevention of accidents which may cause environmental degradation and evolve remedial measures where accidents occur;
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, environmental management objectives are adhered to and adequate early warning on impending environmental emergencies is given;
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;
publish and disseminate manuals, codes or guidelines relating to environmental management and prevention or abatement of environmental degradation;
render advice and technical support, where possible, to entities engaged in natural resources management and environmental protection so as to enable them to carry out their responsibilities satisfactorily;
prepare and issue an annual report on the state of 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;
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 this Act.
The Minister shall lay every annual report on the state of the environment prepared under subsection (2) (p) before the National Assembly as soon as reasonably practicable after its publication.
(1) The Authority shall be managed by a Board which shall consist of
a chairman appointed by the President; and
the Permanent Secretary of the Ministry for the time being responsible for matters relating to the authourity or an officer of that Ministry designated in writing by the Permanent Secretary.
a Director-General appointed by the President:
three Directors who shall be officers of the Authority;
seven members, not being public officers appointed by the Minister in consultation with the Council; and
the Secretary of the Board, who shall be appointed by the Authority.
No person shall be appointed under subsections (1) (a), (b), (c), (d) or (e) unless such person holds at least a post-graduate degree from a recognised university in the field of environmental law, environmental science or natural resource management or a relevant social science and in the case of the Director-General, has at least fifteen years working experience in the relevant field.
The members referred to under section (1) (a) and (e) should be appointed at different times so that the respective expiry dates of their terms of office shall fall at different times.
The members appointed under paragraphs (a), (c) and (e) of subsection (1) shall hold office for a term of four years and shall be eligible for reappointment for one further term of four years.
The Board shall elect a vice-chairman from among the members appointed under paragraph (e) of subsection (1).
The Board shall meet at least four time in every financial year.
The Chairman shall preside at every meeting of the Board at which he is present, but in his absence the vice-chairman shall preside, and in his absence, the members present shall elect one of their member who shall, with respect to that meeting and the business transacted thereat have all the powers of the Chairman.
Unless a unanimous decision is reached, a decision on any matter before the Board shall be by a majority of votes of the members present and in the case of an equality of votes, the Chairman or person presiding shall have a casting vote.
The quorum for the transaction of the business of the Board shall be seven members including the person presiding; and all acts, matters or things
9
authorized or required to be done by the Board, shall be effected by a
(a) determine the provisions to be made for capital and recurrent expenditure
resolution passed by a majority of the members present and voting.
and for reserves of the Authority;
(10)
The Secretary to the Board shall not be entitled to vote on any matter before
(b) receive any grants, gifts, donations or endowments and make legitimate
the Board.
disbursements there from;
(11) Appointment of a member of the Board may be terminated by the appointing
(c) enter into association with other bodies or organisations within or outside
authority where the member -
Kenya as the Authority may consider desirable or appropriate and in
(a) is adjudged
bankrupt or enters
into a
composition or
scheme
of
furtherance of the purpose for which the Authority is established;
arrangement with his creditors;
(d) open a banking account or banking accounts for the funds of the Authority;
(b) is convicted of an offence and sentenced to imprisonment for a term of six
and
months or more without the option of a fine;
(e) invest any funds of the Authority not immediately required for its purposes
(c) is incapacitated by prolonged physical or mental illness from performing
in the manner provided in section 26.
his duties as a member of the Board; or
12.
The Authority may, after giving reasonable notice of its intention so to do, direct
(d) becomes, for any reason, incapable or incompetent of properly performing
any lead agency to perform, within such time and in such manner as it shall
the functions of his office.
specify, any of the duties imposed upon the lead agency by or under this Act or
(12)
Where a member of the Board dies or resigns or otherwise vacates office
any other written law, in the field of environment and if the lead agency fails to
before the expiry of his term of office, the appointing authority shall appoint
comply with such directions, the Authority may itself perform or cause to be
another person in the place of such member.
performed the duties in question, and the expense incurred by it in so doing
(13) Where the Director-General is unable to perform the functions of his office due
shall be a civil debt recoverable by the Authority from the lead agency.
to any temporary incapacity which is likely to be prolonged, the President may
13.(1)
Subject to this Act, the Authority shall regulate its own procedure.
appoint a substitute therefore to act with the full powers of the Director-General
14.
The Authority shall pay the Director-General and the Directors such salaries
until such time as the President determines that the incapacity has ceased.
and allowances as may, from time, be determined by the President, but those
(14) (a) The Director-General shall be the chief executive of the Authority and shall,
salaries and allowances shall not be altered to their detriment during their term
subject to this Act, be responsible for the day to day management of the affairs
of office.
of the Authority.
15.
Subject to this Act, the Authority may, by resolution either generally or in any
particular case, delegate to any committee of the Authority or to any member,
(b) A Director shall perform such functions as are conferred by this Act and
officer, employee or agent of the Authority, the exercise of any of the powers or
such additional duties as may be assigned by the Director-General.
the performance of any of the functions or duties of the Authority under this
Act.
(c ) The Director-General and the Directors of the Authority shall be paid such
16.
The Authority may appoint such officers or other staff of the Authority as are
salaries and allowances as may, from time to time, be determined by the
necessary for the proper discharge of its functions under this Act or any other
President.
written law, upon such terms and conditions of service as the Authority may
determine.
(15)
Subject to subsections (6), (7), (8) and (9) the Board shall regulate its own
17.
The common seal of the Authority shall be kept in such custody as the
Procedure.
Authority may direct and shall not be used except on the order of the Authority.
18.
No matter or thing done by a member of the Authority or any officer, employee
11. The Authority shall have all powers necessary for the proper performance of its
or agent of the Authority shall, if the matter or thing is done bona fide for
functions under this Act and in particular, but without prejudice to the generality of
executing the functions, powers or duties of the Authority, render the member,
the
foregoing,
the
Authority
shall
have
power
to
–
officer, employee or agent or any person acting on his directions personally
control, supervise and administer the assets of the Authority in such manner as
liable to any action, claim or demand whatsoever.
best promotes the purpose for which the Authority is established;
19.
The Provisions of section 18 shall not relieve the Authority of the liability to pay
compensation or damages to any person for any injury to him, his property or
10
any of his interests caused by the exercise of the powers conferred on the
equipment, or in respect of such other matter as the Authority may deem
Authority by this Act or by any other written law or by the failure, whether
appropriate.
wholly or partially, or any works.
(3)
The annual estimates shall be approved by the Authority before the
20.(1)
There shall be a general fund of the Authority which shall vest in the Authority.
commencement of the financial year to which they relate and shall be
(2)
There shall be paid into the general fund
submitted to the Minister for approval and after the Ministers approval, the
(a)
such monies or assets as may accrue to or vest in the Authority in the
Authority shall not increase the annual estimates without the consent of the
course of the exercise of its powers or the performance of its functions
Minister.
under this Act;
23.(1)
The Authority shall cause to be kept all proper books and records of
(b)
such sums as may be granted to the Authority by the Minister pursuant to
accounts of the income, expenditure and assets of the Authority.
subsection (3); and
(2)
Within a period of four months from the end of each financial year, the
(c)
all monies from other source provided for or donated or lent to the
Authority shall submit to the Auditor-General (Corporations) or to an
Authority.
auditor appointed under this section, the accounts of the Authority together
(3) There shall be made to the Authority out of monies provided by Parliament for that
with
purpose, grants towards the expenditure incurred by the Authority in the exercise of
(a)
a statement of the income and expenditure of the Authority during that
its powers or the performance of its functions under this Act.
year; and
(b) a statement of the assets and liabilities of the Authority on the last day of
(4)
There
shall be paid out of the general fund all sums required to defray the
that year.
expenditure incurred by the Authority in the exercise, discharge and performance of
(5) The accounts of the Authority shall be audited and reported upon in accordance
its objectives, functions and duties.
with section 29 and 30A of the Exchequer and Audit Act, by the Auditor-General
(Corporations), or by an auditor appointed by the Authority with the approval of the
21.
The financial year of the Authority shall be the period of twelve months ending on
Auditor-General (Corporations) given in accordance with section 29(2) (b) of the
the thirtieth June in each year.
Exchequer and Audit Act.
24.(1)
There is hereby established a fund to be known as the National Environment
22.(1)
At least three months before the commencement of each financial year, the
Trust Fund, (hereinafter referred to as the Trust Fund).
Authority shall cause to be prepared estimates of the revenue and expenditure
(2)
The Trust Fund shall consist of
of the Authority for that year.
(a) such sums of money as may be received by the Trust Fund in the form of
donations, endowments, grants and gifts from whatever source and
(2)
The annual estimates shall make provisions for the estimated expenditure of
specifically designated for the Trust Fund;
the Authority for the financial year and in particular, the estimates shall provide
(b) such sums of money or other assets as may be specifically designated to
for
the Trust Fund by the Authority out of its General Fund.
(3)
The Trust Fund shall be vested in the Authority and subject to this Act, shall be
(a) the payment of the salaries, allowances and other charges in respect of
administered by a Board of five Trustees to be appointed by the Minister by a
the staff of the Authority;
notice in the Gazette on such terms and conditions as he deems fit. The
(b)
the payment of pensions, gratuities and other charges in respect of the
trustees shall be persons holding at least post-graduate degree from a
staff of the Authority;
recognised university in the field of environmental law, economics,
(c) the proper maintenance of the buildings and grounds of the Authority;
environmental science or natural resource management at the time of their
(d)
the maintenance, repair and replacement of the equipment and other
appointment.
property of the Authority; and
The object of the Trust Fund shall be to facilitate research intended to further
(e) the creation of such reserve funds to meet future contingent liabilities in
the requirements of the environmental management, capacity building,
respect of retirement benefits, insurance or replacement of buildings or
environmental awards, environmental publications, scholarships and grants.
11
The Board of Trustees may, on the recommendation of the Council, determine that certain donations to the Trust Fund shall be applied specifically and reserved only for prizes and awards for exemplary services to the environment. Such prizes and awards shall be applied by the recipient exclusively to the management of the environment.
25.(1) There is hereby established a fund to be known as the National Environment Restoration Fund, (hereinafter referred to as The Restoration Fund).
The Restoration Fund shall consist of:-
such proportion of fees or deposit bonds as may be determined by the Authority from time to time;
such sums as may be donated or levied from industries and other projects proponents as a contribution towards the Restoration Fund.
The Restoration Fund shall be vested in the Authority and, subject to this Act,
shall be administered by the Director-General. The object of the Restoration Fund shall be as supplementary insurance for the mitigation of environmental degradation where the perpetrator is not identifiable or where exceptional circumstances require the Authority to intervene towards the control or mitigation of environmental degradation.
The Minster may, by notice in the Gazette, issue orders for the levying of funds from project proponents towards the Restoration Fund.
26.(1) Subject to this Act, the Authority may, invest any of its funds in securities in which trustees may, for the time being, invest trust funds or in any other securities which the Treasury may, from time to time, approve for that purpose.
Subject to this Act, the Authority may place on deposit with such bank or banks as it may determine, any moneys not immediately required for its purposes.
The assets of the Authority may be disposed of:-
if they are current assets, in the normal course of business carried on by the Authority;
where the disposal and utilization of the proceeds have been taken into account in an annual estimate prepared and approved in accordance with section 22;
by way of sale or otherwise with the approval of the Minister and the Treasury where such disposal has not been taken into account in the estimates.
27.(1) As soon as practicable and not later than three months after the expiry of the financial year, the Director-General shall submit to the Council a financial report concerning the activities of the Authority during such financial year.
The Report of the Director-General under subsection (1) shall include information on the financial affairs of the Authority and shall be appended to the Report:-
an audited statement of income and expenditure of the previous financial year;
estimates of income and expenditure of the Authority for the next ensuing financial year.
The Minister shall not later than fourteen days after the sitting of the National Assembly next after receipt of the Report referred to in subsection (1) lay it before the National Assembly.
28.(1) The Authority shall create a register of those activities and industrial plants and undertakings which have or are most likely to have significant adverse effects on the environment when operated in a manner that is not in conformity with good environmental practices.
The Minister responsible for finance may, on the recommendations of the Council, prescribe that persons engaged in activities or operating industrial plants and other undertakings identified under subsection (1) pay such deposit bonds as may constitute appropriate security for good environmental practice.
The deposit bond determined in accordance with subsection (2) shall be refunded to the operator of the activity, industrial plant or any other undertaking by the Authority after such duration not exceeding twenty-four months without interest where the operator has observed good environmental practices to the satisfaction of the Authority.
The Authority may, after giving the operator an opportunity to be heard, confiscate a deposit bond where the operator is responsible for environmental practice that is in breach if the provisions of this Act, and the Authority may in addition cancel any licence issued to the operator under this Act if the Authority is satisfied that the operator has become an habitual offender.
Where an operator is dissatisfied with the confiscation of his deposit bond under this Act, he may refer the matter to a competent court of law.
The proceeds of every refundable deposit bond levied under this section shall be paid into the Restoration Fund and shall be treated as part of the Restoration Fund until refunded to the depositor subject to subsection (3) or confiscated by the Authority.
Any interest accruing from monies deposited into the Restoration Fund under this section shall be for the benefit of the Authority.
Provincial and District Environment Committees
12
29.(1) The Minister shall by notice in the Gazette, appoint Provincial and District Environment Committees of the Authority in respect of every province and district respectively.
Every Provincial Environment Committee shall consist of
the Provincial Commissioner of the Province who shall be the chairman;
the Provincial Director of Environment of the Province who shall be the Secretary;
one representative each of the Ministries responsible for the matters specified in the First Schedule at the provincial level;
a representative of every local authority whose area of jurisdiction falls wholly or partly within the province;
two representatives of farmers or pastoralists within the province to be appointed by the Minister;
two representatives of the business community operating within the concerned province appointed by the Minister;
two representatives of the non-governmental organisations engaged in environmental management programmes within the province appointed by the Minister in consultation with the National Council of Non-Governmental Organisations; and
a representative of every regional development authority whose area of
jurisdiction falls wholly or partially within the province.
Every District Environment Committee shall consist of
the District Commissioner of the district who shall be the chairman;
the District Environment Officer of the district who shall be the secretary;
one representative each of the Ministries for the time being responsible for the matters specified in the First Schedule at the district level;
a representative of every local authority whose area of jurisdiction falls wholly or partially within the district;
two representatives of farmers or pastoralists within the district to be appointed by the Minister;
two representatives of the business community in the district to be appointed by the Minister;
two representatives of the non-governmental organisations engaged in environmental management programmes, operating in the district, to be
appointed by the Minister in consultation with the National Council of Non-Governmental Organisation; and
two representatives of the community-based organizations engaged in environmental programmes operating in the district, to be appointed by the Minister.
The Provincial and District Environment Committee shall
be responsible for the proper management of the environment within the province or district in respect of which they are appointed.
perform such additional functions as are prescribed by this Act or as may, from time to time, be assigned by the Minister by notice in the Gazette.
31.
(1)
There is hereby established a committee of the Authority to be known
as
the
Public Complaints Committee (hereinafter referred to as
the
Complaints Committee) which shall consist of
a Chairman appointed by the Minister and who shall be a person qualified for appointment as a Judge of the High Court of Kenya;
a representative of the Attorney-General;
a representative of the Law Society of Kenya;
a representative of non-governmental organisations appointed by the National Council of Non-Governmental Organisations and who shall be the secretary of the Complaints Committee;
a representative of the business community appointed by the Minister;
two members appointed by the Minister for their active role in environmental management.
The members of the Complaints Committee, other than the chairman, shall hold office for a period of three years but shall be eligible for reappointment: Provided that no member shall hold office for more than two terms.
A member of the Complaints Committee other than the member appointed under subsection (1) (b) may
at anytime resign from office by notice in writing to the Minister through the chairman;
be removed from office by the Minister if the member
has been absent from three consecutive meetings of the Committee without permission from the chairman;
is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months or to a fine exceeding ten thousand shillings;
is incapacitated by prolonged physical or mental illness; or
is otherwise unable or unfit to discharge his functions.
If a member of the Complaints Committee vacates office before the expiry of his term, the appointing authority shall appoint a suitable replacement thereof. Where a member of the Complaints Committee is unable to perform the
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functions of his office due to any temporary incapacity which may be prolonged, the appointing authority may appoint a substitute for the member until such time as the Minister determines the incapacity has ceased.
Subject to this Act, the Complaints Committee shall regulate its own procedure.
The functions of the Complaints Committee shall be
to investigate
any allegations or complaints against any person or against the Authority in relation to the condition of the environment in Kenya;
on its own motion, any suspected case of environmental degradation, and to make a report of its findings together with its recommendation thereon to the Council;
to prepare and submit to the Council, periodic reports of its activities which report shall form part of the annual report on the state of the environment under section 9 (3); and
to perform such other functions and exercise such powers as may be
assigned to it by the Council.
33.(1) The Complaints Committee may, by notice in writing, require any person to
give to the Complaints Committee all reasonable assistance in connection with the investigation of any complaint under section 32; or
appear before the Complaints Committee for examination concerning matters relevant to the investigation of any complaint under section 32.
A Person who
refuses or fails to comply with the requirement of the Complaints Committee which is applicable to him, to the extent to which he is able to comply with it; or
obstructs or hinders the Complaints Committee in the exercise of his powers under this Act; or
furnishes information or makes a statement to the Complaints Committee which he knows to be false or misleading in any material particular; or
when appearing before the Complaints Committee for examination, makes a statement which he knows to be false or misleading in any material
particular
commits an offence. A person convicted of an offence under subsection (2) shall be liable to a fine not exceeding fifty thousand shillings.
Where an offence under subsection (2) is a continuing offence, the person convicted shall, in addition to the penalty prescribed in subsection (3), be liable
to a fine of one thousand shillings for each day during which the offence continues.
No proceedings shall lie against the chairman or any member of the Complaints Committee in respect of anything done bona fide in the performance of the duties of the Complaints Committee under this Act.
(1)If a member of the Complaints Committee is directly or indirectly interested
in any matter before the Complaints Committee and is present at a meeting of the
Complaints Committee at which the matter is the subject of investigation, he shall, at the meeting and as soon as reasonably practicable after the commencement thereof, disclose the fact and shall not take part in the consideration or discussion of, or vote on, any questions in respect of the matter, or be counted in the quorum of the meeting during the consideration of the matter.
A disclosure of interest made under subsection (1) shall be recorded in the minutes of the meeting at which it is made.
36.(1) There shall be paid to the chairman and members of the Complaints Committee, such remuneration, fees or allowances for expenses as the Council may determine.
The remuneration fees or allowances referred to in subsection (1) together with any other expenses incurred by the Complaints Committee in the execution of its functions under this Act shall be paid out of monies provided by Parliament for that purpose.
PART IV ENVIRONMENTAL PLANNING
37.(1) There is established a committee of the Authority to be known as the National Environment Action Plan Committee and which shall consist of
the Permanent Secretary in the Ministry for the time being responsible for national economic planning and development who shall be the chairman;
the Permanent Secretaries in the Ministries responsible for the matters specified in the First Schedule or their duly nominated representatives;
four representatives of the business community to be appointed by the Minister;
representatives of each of the institutions specified in the Third Schedule;
five representatives of non-governmental organisations nominated by the National Council of Non-Governmental Organizations;
representatives of specialised research institutions that are engaged in environmental matters as may be determined by the Minister; and
a Director of the Authority who shall be the secretary.
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The National Environment Action Plan Committee shall, after every five years, prepare a national environment action plan for consideration and adoption by the National Assembly.
The national environment action plan shall
contain an analysis of the natural resources of Kenya with an indication as to any pattern of change in their distribution and quantity over time;
contain an analytical profile of the various uses and value of the natural resources incorporating considerations of intergenerational and intragenerational equity;
recommend appropriate legal and fiscal incentives that may be used to encourage the business community to incorporate environmental requirements into their planning and operational processes;
recommend methods for building national awareness through environmental education on the importance of sustainable use of the environment and natural resources for national development;
set out operational guidelines for the planning and management of the environment and natural resources;
identify actual or likely problems as may affect the natural resources and the broader environment context in which they exist;
identify and appraise trends in the development of urban and rural settlements, their impacts on the environment, and strategies for the amelioration of their negative impacts;
propose guidelines for the integration of standards of environmental protection into development planning and management;
identify and recommend policy and legislative approaches for preventing, controlling or mitigating specific as well as general adverse impacts on the environment;
prioritise areas of environmental research and outline methods of using such research findings;
without prejudice to the foregoing, be reviewed and modified from time to time to incorporate emerging knowledge and realities; and
be binding on all persons and all government departments, agencies, state corporations or other organs of Government upon adoption by the National Assembly.
Every Provincial Environment Committee shall every five years, prepare a provincial environment action plan in respect of the province for which it is appointed, incorporating the elements of the relevant district environment action plans prepared under section 40 and shall submit such plan to the chairman of the National Environment Action Plan Committee for incorporation into the national environment action plan.
Every District Environment Committee shall, every five years, prepare a district environment action plan in respect of the district environment for which it is appointed and shall submit such plan to the chairman of the Provincial
Environment Action Plan Committee for incorporation into the provincial
environment action plan proposed under section 39.
Every provincial environment action plan and every district environment action
plan prepared under section 39 and 40 respectively shall contain provisions dealing with matters contained in section 38 (a), (b), (c), (d), (e), (f), (g), (h), (i), and (j) in relation to their respective province or district.
PART V PROTECTION AND CONSERVATION OF THE ENVIRONMENT
42.(1) No person shall, without prior written approval of the Director-General given after an environmental impact assessment, in relation to a river, lake or wetland in Kenya, carry out any of the following activities
erect, reconstruct, place, alter, extend, remove or demolish any structure or part of any structure in, or under the river, lake or wetland;
excavate, drill, tunnel or disturb the river, lake or wetland;
introduce any animal whether alien or indigenous in a lake, river or wetland;
introduce or plant any part of a plant specimen, whether alien or indigenous, dead or alive, in any river, lake or wetland;
deposit any substance in a lake, river or wetland or in, on, or under its bed, if that substance would or is likely to have adverse environmental effects on the river, lake or wetland;
direct or block any river, lake or wetland from its natural and normal course; or
drain any lake, river or wetland.
The Minister may, by notice in the Gazette, declare a lake shore, wetland, coastal zone or river bank to be protected area and impose such restrictions as he considers necessary, to protect the lake shore, wetlands, coastal zone and river bank from environmental degradation. In declaring a lake shore, wetland, coastal zone or river bank a protected area, the Minister shall take into consideration the following factors
the geographical size of the lake shore, wetland, coastal zone or river bank; and
the interests of the communities resident around the lake shore, wetland, coastal zone or river bank concerned.
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(3)
The Minister may, by notice in the Gazette, issue general and specific orders,
(a) it is prone to soil erosion;
regulations or standards for the management of river banks, lake shores,
wetlands or coastal zones and such orders, regulations or standards may
(b) landslides have occurred in such an area;
include management, protection, or conservation measures in respect of any
area at risk of environmental degradation and shall provide for
(c) vegetation cover has been removed or is likely to be removed from the
(a)
the development of an overall environmental management plan for a lake,
river, wetland or coastal area, taking into account the relevant sectoral
area at a rate faster than it is being replaced; or
interests;
(d)
any other land use activity in such an area is likely to lead to
(b)
measures for the prevention or control of coastal erosion;
(c)
the conservation of mangrove and coral reef ecosystems;
environmental
degradation.
(d)
plans for the harvesting of minerals within the coastal zone, including
Each District Environment Committee shall notify the Director-General of
strategies for the restoration of mineral sites;
the hilly and mountainous areas it has identified as being at risk from
(e)
contingency plans for the prevention and control of all deliberate and
environmental degradation under subsection (1).
accidental discharge of pollutants into the sea, lakes or rivers;
(3)
The Director-General shall maintain a register of hilly and mountainous areas
(f) plans for the protection of wetlands;
identified under subsection (1) to be at risk from environmental degradation.
(g)
the regulations of harvesting of aquatic living and non-living resources to
46.(1)
Every District Environment Committee shall specify which of the areas
ensure optimism sustainable yield;
identified in accordance with section 45 (1) are to be targeted for afforestation
(h)
special guidelines for access to and exploitation of living and non-living
or reforestation.
resources in the continental shelf, territorial sea and the Exclusive
(2)
Every District Environment Committee shall take measures, through
Economic Zone;
encouraging voluntary self-help activities in their respective local community, to
(i)
promotion of environmentally friendly tourism; and
plant trees or other vegetation in any areas specified under subsection (1)
(j)
the management of biological resources;
which are within the limits of its jurisdiction.
(4)
The
Authority shall, in consultation with the relevant lead agencies, issue
(3)
Where the areas specified under subsection (1) are subject to leasehold or any
guidelines for the management of the environment of lakes and rivers.
(5)
Any person who contravenes or fails to comply with any orders, regulations or
other interest in land including customary tenure, the holder of that interest
standards issued under this section shall be guilty of an offence.
shall implement measures required to be implemented by the District
43.
The Minister may, by notice in the Gazette, declare the traditional interests of
Environment Committee including measures to plant trees and other vegetation
indigenous communities customarily resident within or around a lake shore,
in those areas.
wetland, coastal zone or river bank to be protected interests.
47.(1)
The Authority shall, in consultant with the relevant lead agencies, issue
44.
The Authority shall, in consultation with the relevant lead agencies, develop
guidelines and prescribe measures for the sustainable use of hill tops, hill
issue and implement regulations, procedures, guidelines and measures for the
slides and mountainous areas.
sustainable use of hill sides, hill tops, mountain areas and forests and such
(2)
The guidelines issued and measures prescribed by the Authority under
regulations, guidelines, procedures and measures shall control the harvesting
subsection (1) shall be by way of Gazette Notice and shall include those
of forests and any natural resources located in or on a hill side, hill top or
relating to
mountain areas so as to protect water catchment areas, prevent soil erosion
(a)
appropriate farming methods;
and regulate human settlement.
(b)
carrying capacity of the areas described in subsection (1) in relation to
animal husbandry;
45.(1)
Every District Environment Committee shall identify the hilly and mountainous
(c) measures to curb soil erosion;
areas under their jurisdiction which are at risk from environmental degradation.
(d) disaster preparedness in areas prone to landslides;
(e) the protection of areas referred to in subsection (1)
from human
(2)
A hilly or mountainous area is at risk from environmental degradation if
settlements;
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(f) the protection of water catchment areas; and
(e)
specify national strategies, plans and government programmes for
(g) any other measures the Authority considers necessary.
conservation and sustainable use of biological diversity;
(3)
The District Environment Committees shall be responsible for ensuring that the
(f) protect indigenous property rights of local communities in
respect of
guidelines issued and measures prescribed under subsection (2) in respect of
their districts are implemented.
biological diversity; and
(4)
Any person who contravenes any measure prescribed by the Authority under
(g)
measure the value of unexploited natural resources in terms of watershed
this section or who fails to comply with a lawful direction issued by a District
Environment Committee under this section shall be guilty of an offence.
protection, influence on climate, cultural and aesthetic value, as well as
48.(1)
Subject to subsection (2) the Director-General may, with the approval of the
actual and potential genetic value thereof.
Director of Forestry, enter into any contractual arrangement with a private
51.
The Authority shall, in consultation with the relevant lead agencies, prescribe
owner of any land on such terms and conditions as may be mutually agreed for
the purposes of registering such land as forest land.
measures adequate to ensure the conservation of biological resources in-situ
(2)
The Director-General shall not take any action, in respect of any forest or
and in this regard shall issue guidelines for
mountain area, which is prejudicial to the traditional interests of the indigenous
(a)
land use methods that are compatible with conservation of biological
communities customarily resident within or around such forest or mountain
diversity;
area.
(b)
the selection and management of protected areas so as to promote the
49. The Authority shall, in consultation with the relevant lead agencies, promote the use
conservation of the various terrestrial and aquatic ecosystems under the
of renewable sources of energy by
jurisdiction of Kenya;
(a) promoting research in appropriate renewable sources of energy;
(c)
selection and management of buffer zones near protected areas;
(b) creating incentives for the promotion of renewable sources of energy;
(d)
special arrangement for the protection of species, ecosystems and
(c)
promoting measures for the conservation of
non-renewable sources
of
habitats threatened with extinction;
energy; and
(e)
prohibiting and controlling the introduction of alien species
into natural
(d)
taking measures to encourage the planning
of trees and woodlots
by
habitats; and
individual land users, institutions and by community groups.
(f) integrating traditional knowledge for the conservation of biological diversity
50.
The Authority shall, in consultation with the relevant lead agencies, prescribe
with mainstream scientific knowledge.
measures necessary to ensure the conservation of biological diversity in Kenya
52.
The Authority shall, in consultation with the relevant lead agencies
and in this respect the Authority shall
(a)
prescribe measures for the conservation of biological resources ex-situ
especially for those species threatened with extinction;
(a) identify, prepare and maintain an inventory of biological diversity of Kenya;
(b) issue guidelines for the management of:-
(i) germplasm banks;
(b) determine which components of biological diversity are endangered, rare
(ii) botanical gardens;
or threatened with extinction;
(iii) zoos or aquaria;
(iv) animal orphanages; and
(c) identify potential threats to biological diversity and devise measures to
(v) any other facilities recommended to the Authority by any of its
remove or arrest their effects;
Committees or considered necessary by the Authority.
(c) ensure that species threatened with extinction which are conserved ex-situ
(d) undertake measures intended to integrate the conservation and
are re-introduced into their native habitats and ecosystems where:-
sustainable utilisation ethic in relation to biological diversity in existing
(i) the threat to the species has been terminated; or
government activities and activities by private persons;
(ii) a viable population of the threatened species has been achieved.
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53.(1) The Authority shall, in consultation with the relevant lead agencies, issue guidelines and prescribe measures for the sustainable management and utilisation of genetic resources of Kenya for the benefit of the people of Kenya.
Without prejudice to the general effect of subsection (1), the guidelines issued or measures prescribed under that subsection shall specify
appropriate arrangement for access to genetic resources of Kenya by non-citizens of Kenya including the issue of licences and fees to be paid for that access;
measures for regulating the import or export of germplasm;
the sharing of benefits derived from genetic resources of Kenya;
biosafety measures necessary to regulate biotechnology;
measures necessary to regulate the development, access to and transfer of biotechnology; and
any other matter that the Authority considers necessary for the better management of the genetic resources of Kenya.
54.(1) The Minister may, in consultation with the relevant lead agencies, by notice in the Gazette, declare any area of land, sea, lake or river to be a protected natural environment for the purpose of promoting and preserving specific ecological processes, natural environment systems, natural beauty or species of indigenous wildlife or the preservation of biological diversity in general.
Without prejudice to subsection (1), the Authority may, in consultation with the relevant lead agencies, issue guidelines and prescribe measures for the management and protection of any area of environmental significance declared to be a protected natural environment area under this section.
(1) The Minster may, by notice in the Gazette, declare an area to be a protected coastal zone.
As soon as practicable upon the commencement of this Act, the Authority shall, in consultation with the relevant lead agencies, prepare a survey of the coastal zone and prepare an integrated national coastal zone management plan based on the report of such survey.
The Authority shall, from time to time, not exceeding every two years, review the national coastal zone management plan prepared under subsection (2).
The report of the survey of the coastal zone shall contain:-
an inventory of all structures, roads, excavations, harbours, outfalls, dumping sites and other works located in the coastal zone;
an inventory of the state of the coral reefs, mangroves and marshes found within the coastal zone;
an inventory of all areas within the coastal zone of scenic value or of value for recreational and cultural purposes;
an inventory of areas within the coastal zone of special value for research in respect of fisheries, erosion, littorals movement and such other similar subjects;
an estimate of the quantities of sand, coral sea shells and other substances being removed from the coastal zone;
an estimate of the impacts of erosion on the coastal zone; and
an estimate of the extent, nature, cause and sources of coastal pollution and degradation;
an estimate of freshwater resources available in the coastal zone; and
any other relevant data or information that may be deemed appropriate.
Any person who releases or causes to be released into the coastal zone any polluting or hazardous substances contrary to the provisions of this Act shall be guilty of an offence and liable upon conviction to a fine of not less than one million shillings or to imprisonment for a period not exceeding two years or to both such fine and imprisonment.
The Minister shall, in consultation with the relevant lead agencies, issue appropriate regulations to prevent, reduce and control pollution or other form of environmental damage in the coastal zone.
Notwithstanding the generality of subsection (6) of this section, the regulations made thereunder shall provide for the control and prevention of pollution
of the marine environment from land based sources including rivers, estuaries, pipelines and outfall structures;
from vessels, aircrafts and other engines used in the coastal zone;
from installations and devices used in the exploration or exploitation of the natural resources of the seabed and subsoil of the exclusive economic zone; and
of the marine environment arising from or in connection with seabed activities and from artificial islands installations and other structures in the exclusive economic zone.
56.(1) The Authority shall, in consultation with the relevant lead agencies, undertake or commission other persons to undertake national studies and give due recognition to developments in scientific knowledge relating to substances,
18
activities and practices that deplete the ozone layer to the detriment of public health and the environment.
The Authority shall, in consultation with the relevant lead agencies, issue guidelines and institute programmes concerning the:-
elimination of substances that deplete the stratospheric ozone layer;
controlling of activities and practices likely to lead to the degradation of the ozone layer and the stratosphere;
reduction and minimisation of risks to human health created by the degradation of the ozone layer and the stratosphere; and
formulate strategies, prepare and evaluate programmes for phasing out
ozone depleting substances.
57.(1) Notwithstanding the provision of any relevant revenue Act, the Minister responsible for finance may, on the recommendation of the Council, propose to Government tax and other fiscal incentives, disincentives or fees to induce or promote the proper management of the environment and natural resources or the prevention or abatement of environmental degradation.
Without prejudice to the generality of subsection (1) the tax and fiscal incentives, disincentives or fees may include
customs and excise waiver in respect of imported capital goods which prevent or substantially reduce environmental degradation caused by an undertaking;
tax rebates to industries or other establishments that invest in plants, equipment and machinery for pollution control, re-cycling of wastes, water harvesting and conservation, prevention of floods and for using other energy resources as substitutes for hydrocarbons;
tax disincentives to deter bad environmental behavior that leads to depletion of environmental resources or that cause pollution; or
user fees to ensure that those who
