Environmental Management and Co-ordination Act

Section 1. Short title Section This Act may be cited as the Environmental Management and Co-ordination Act.

Section 2. Interpretation Section crude oil, refined oil, diesel oil, fuel oil and lubricating oil; and

Section 3. Entitlement to a clean and healthy environment Section 3(1) Every person in Kenya is entitled to a clean and healthy environment in accordance with the Constitution and relevant laws and has the duty to safeguard and enhance the environment. Section 3(2) 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. Section 3(2A) Every person shall cooperate with state organs to protect and conserve the environment and to ensure the ecological sustainable development and use of natural resources. Section 3(3)(a) prevent, stop or discontinue any act or omission deleterious to the environment; Section 3(3)(b) compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment; Section 3(3)(c) require that any on-going activity be subjected to an environment audit in accordance with the provisions of this Act; Section 3(3)(d) compel the persons responsible for the environmental degradation to restore the degraded environment as far as pract...

Section 3A. Access to information Section 3A(1) Subject to the law relating to access to information, every person has the right to access any information that relates to the implementation of this Act that is in the possession of the Authority, lead agencies or any other person. Section 3A(2) A person desiring the information referred to in subsection (1) shall apply to the Authority or a lead agency and may be granted access to such information on payment of the prescribed fee. [Act No. 5 of 2015 , s. 4.]

Section 4.[Repealed by ActNo. 5 of 2015, s. 5.]

Section 5. Functions of the Cabinet Secretary Section be responsible for policy formulation and directions for purposes of this Act;

Section 6.[Repealed by ActNo. 5 of 2015, s. 7.]

Section 7. Establishment of the National Environment Management Authority Section 7(1) There is established an Authority to be known as the National Environment Management Authority. Section 7(2)(a) suing and being sued; Section 7(2)(b) taking, purchasing, charging and disposing of movable and immovable property; Section 7(2)(c) borrowing money; Section 7(2)(d) entering into contracts; and Section 7(2)(e) doing or performing all such other things or acts for the proper administration of this Act, which may lawfully be performed by a body corporate.

Section 8. Headquarters Section The headquarters of the Authority shall be in Nairobi but the Authority shall ensure its services are accessible in all parts of the Republic. [Act No. 5 of 2015 , s. 8.]

Section 9. Objects and functions of the Authority Section 9(1) The object and purpose for which the Authority is established is to exercise general supervision and co-ordination over all matters relating to the environment and to be the principal instrument of Government in the implementation of all policies relating to the environment. Section 9(2)(a) co-ordinate the various environmental management activities being undertaken by the lead agencies and promote the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable yield basis for the improvement of the quality of human life in Kenya; Section 9(2)(b) take stock of the natural resources in Kenya and their utilisation and conservation; Section 9(2)(bb) audit and determine the net worth or value of the natural resources in Kenya and their utilization and conservation; Section 9(2)(c) make recommendations to the relevant authorities with respect to land use planning; Section 9(2)(d) examine land use patterns to determine their impact on the quality and quantity of natural r...

Section 10. Board of the Authority Section 10(1)(a) a Chairperson appointed by the President; Section 10(1)(b) the Principal Secretary of the Ministry for the time being responsible for matters relating to the Authority or an officer of that Ministry designated in writing by the Principal Secretary; Section 10(1)(c) a Director-General who shall be the Secretary to the Board appointed by the Cabinet Secretary from amongst three persons selected by the Board through a competitive recruitment process; Section 10(1)(d) the Principal Secretary in charge of finance or his representative; Section 10(1)(e) six members, not being public officers, appointed by the Cabinet Secretary; Section 10(1)(f) the Attorney-General or his representative. Section 10(2) No person shall be appointed under subsections (1)(a), (c), (d) or (e) unless such person holds at least a post-graduate degree from a recognized university in the fields of environmental law, environmental science, 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. Section 10(3) The members referred to under subsection (1)(...

Section 11. Powers of the Authority Section control, supervise and administer the assets of the Authority in such manner as best promotes the purpose for which the Authority is established;

Section 12. Powers in respect of lead agencies Section 12(1) The Authority may after giving reasonable notice of its intention so to do, direct any lead agency to perform, within such time and in such manner as it shall specify, any of the duties imposed upon the lead agency by or under this Act or any other written law, in the field of environment and if the lead agency fails to comply with such directions, the Authority may itself perform or cause to be performed the duties in question, and the expense incurred by it in so doing shall be a civil debt recoverable by the Authority from the lead agency. Section 12(2) Any person who fails to comply with subsection (1) commits an offence. [Act No. 5 of 2015 , s. 11.]

Section 13. Conduct of business and affairs of the Authority Section Subject to this Act, the Authority shall regulate its own procedure.

Section 14. Remuneration of Director-General and Directors Section The Director-General and the Directors of the Authority shall be paid such salaries and allowances, as may, from time to time, be determined by the Board on the advice of the Salaries and Remuneration Commission. [Act No. 5 of 2015 , s. 12.]

Section 15. Delegation by the Authority Section 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, officer, employee or agent of the Authority, the exercise of any of the powers or the performance of any of the functions or duties of the Authority under this Act.

Section 16. Staff of the Authority Section The Authority may appoint such officers or other staff of the Authority as are necessary for the proper discharge of its functions under this Act or any other written law, upon such terms and conditions of service as the Authority may determine.

Section 17. The common seal of the Authority Section The common seal of the authority shall be kept in such custody as the Authority may direct and shall not be used except on the order of the Authority.

Section 18. Protection from personal liability Section No matter or thing done by a member of the Authority or any officer, employee or agent of the Authority shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever.

Section 19. Liability of the Authority for damages Section 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 any of his interests caused by the exercise of the powers conferred on the Authority by this Act or by any other written law or by the failure, whether wholly or partially, or any works.

Section 20. General fund Section 20(1) There shall be a general fund of the Authority which shall vest in the Authority. Section 20(2)(a) such monies or assets as may accrue to or vest in the Authority in the course of the exercise of its powers or the performance of its functions under this Act; Section 20(2)(b) such sums as may be granted to the Authority by the Cabinet Secretary pursuant to subsection (3); and Section 20(2)(c) all monies from any other source provided for or donated or lent to the Authority. Section 20(3) There shall be made to the Authority out of monies provided by Parliament for that purpose, grants towards the expenditure incurred by the Authority in the exercise of its powers or the performance of its functions under this Act. Section 20(4) There shall be paid out of the general fund all sums required to defray the expenditure incurred by the Authority in the exercise, discharge and performance of its objectives, functions and duties. [Act No. 5 of 2015 , s. 2.]

Section 21. Financial year Section The financial year of the Authority shall be the period of twelve months ending on the thirteeth June in each year.

Section 22. Annual estimates Section 22(1) At least three months before the commencement of each financial year, the Authority shall cause to be prepared estimates of the revenue and expenditure of the Annual Authority for that year. Section 22(2)(a) the payment of the salaries, allowances and other charges in respect of the staff of the Authority; Section 22(2)(b) the payment of pensions, gratuities and other charges in respect of the staff of the Authority; Section 22(2)(c) the proper maintenance of the buildings and grounds of the Authority; Section 22(2)(d) the maintenance, repair and replacement of the equipment and other property of the Authority; and Section 22(2)(e) the creation of such reserve funds to meet future contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matter as the Authority may deem appropriate. Section 22(3) The annual estimates shall be approved by the Authority before the commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary for approval and after the Cabinet Secretary's approval, the Authority shall not increase the annu...

Section 23. Accounts and audit Section 23(1) The Authority shall cause to be kept all proper books and records of accounts of the income, expenditure and assets of the Authority. Section 23(2)(a) a statement of the income and expenditure of the Authority during that year; and Section 23(2)(b) a statement of the assets and liabilities of the Authority on the last day of that year. Section 23(3) The annual accounts of the Authority shall be prepared, audited and reported upon in accordance with the provisions of Articles 226 and 229 of the Constitution and the Public Financial Management Act (Cap. 412A). [Act No. 5 of 2015 , s. 13.]

Section 24. National Environment Trust Fund Section 24(1) There is hereby established a fund to be known as the National Environment Trust Fund, (hereinafter referred to as the "Trust Fund"). Section 24(2)(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 specifically designated for the Trust Fund; Section 24(2)(b) such sums of money or other assets as may be specifically designated to the Trust Fund by the Authority out of its general fund. Section 24(3) The Trust Fund shall be administered by a Board of five Trustees to be appointed by the Cabinet Secretary by a notice in the Gazette on such terms and conditions as the Cabinet Secretary may prescribe, upon the advice of the Salaries and Remuneration Commission. The trustees shall be persons holding at least post-graduate degree from a recognized university in the fields of environmental law, economics, environmental science or natural resource management and subject to chapter Six of the Constitution at the time of their appointment. Section 24(3A) The Board referred to in subsection (3) shall be known as the Board of Trustees of the Trust Fu...

Section 25. National Environment Restoration Fund Section 25(1) There is hereby established a fund to be known as the National Environment Restoration Fund, (hereinafter referred to as "The Restoration Fund"). Section 25(2)(a) such proportion of fees or deposit bonds as may be determined by the Authority from time to time; Section 25(2)(b) such sums as may be donated or levied from industries and other projects proponents as a contribution towards the Restoration Fund. Section 25(3) The Restoration Fund shall be vested in the Authority and, subject to this Act, shall be administered by the Director-General. Section 25(4) 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. Section 25(5) The Cabinet Secretary may, by notice in the Gazette , issue orders for the levying of funds from project proponents towards the Restoration Fund. [Act No. 5 of 2015 , s. 2.]

Section 26. Investment of funds and disposal of assets Section 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 National Treasury may, from time to time, approve for that purpose. Section 26(2) Subject to this Act, the Authority may upon consultation with the National Treasury, place on deposit with such bank or banks as it may determine, any moneys not immediately required for its purposes. Section 26(3)(a) if they are current assets, in the normal course of business carried on by the Authority; Section 26(3)(b) where the disposal and the utilization of the proceeds have been taken into account in an annual estimate prepared and approved in accordance with section 22 ; Section 26(3)(c) by way of sale or otherwise with the approval of the Cabinet Secretary and the National Treasury where such disposal has not been taken into account in the estimates.

Section 27. Annual Financial Report Section 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 Cabinet Secretary a financial report concerning the activities of the Authority during such financial year. Section 27(2)(a) an audited statement of income and expenditure of the previous financial year; Section 27(2)(b) estimates of income and expenditure of the Authority for the next ensuing financial year. Section 27(3) The Cabinet Secretary 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. [Act No. 5 of 2015 , ss. 2 & 16.]

Section 28. Deposit Bonds Section 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. Section 28(2) The Cabinet Secretary responsible for Finance may, on the recommendations of the Cabinet Secretary, 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. Section 28(3) 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 six months without interest where the operator has observed good environmental practices to the satisfaction of the Authority. Section 28(4) 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 of the provi...

Section 29. County Environment Committees Section 29(1) The Governor shall, by notice in the Gazette , constitute a County Environment Committee of the County. Section 29(2)(a) the member of the county executive committee in charge of environmental matters who shall be the chairperson; Section 29(2)(b) an officer of the Authority whose area of jurisdiction falls wholly or partially within the county who shall be the Secretary to the County Environmental Committee; Section 29(2)(c) one representative for each of the Ministries responsible for the matters specified in the First Schedule at the county level; Section 29(2)(d) two representatives of farmers or pastoralists within the county to be appointed by the Governor; Section 29(2)(e) two representatives of the business community operating within the concerned county appointed by the Governor; Section 29(2)(f) two representatives of the public benefits organizations engaged in environmental management programmes within the county appointed by the Governor in consultation with the National Federation of Public Benefit Organizations; and Section 29(2)(g) a representative of every regional development authority whose area of jurisdict...

Section 30. Functions of County Environment Committees Section be responsible for the proper management of the environment within the county for which it is appointed;

Section 31. National Environmental Complaints Committee Section 31(1)(a) a Chairperson appointed by the Cabinet Secretary and who shall be a person qualified for appointment as a judge of the Environment and Land Court of Kenya; Section 31(1)(b) a representative of the Attorney-General; Section 31(1)(c) a representative of the Law Society of Kenya; Section 31(1)(d) one person who has demonstrated competence in environmental matters, nominated by the Council of County Governors and who shall be secretary to the Complaints Committee; Section 31(1)(e) a representative of the business community appointed by the Cabinet Secretary; Section 31(1)(f) two members appointed by the Cabinet Secretary for their active role in environmental management. Section 31(2) The members of the Complaints Committee, other than the members appointed under subsection (1)(b), 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. Section 31(3)(a) at anytime resign from office by notice in writing to the Cabinet Secretary through the chairperson; Section 31(3)(b) has been absent from three consecutive meetings o...

Section 32. Functions of the Complaints Committee Section any allegations or complaints against any person or against the Authority in relation to the condition of the environment in Kenya;

Section 33. Powers of the Complaints Committee Section 33(1)(a) give to the National Environmental Complaints Committee all reasonable assistance in connection with the investigation of any complaint under section 32 ; or Section 33(1)(b) appear before the National Environmental Complaints Committee for examination concerning matters relevant to the investigation of any complaint under section 32 . Section 33(2)(a) refuses or fails to comply with the requirement of the National Environmental Complaints Committee which is applicable to him, to the extent to which he is able to comply with it; or Section 33(2)(b) obstructs or hinders the National Environmental Department in the exercise of his powers under this Act; or Section 33(2)(c) furnishes information or makes a statement to the National Environmental Complaints Committee which he knows to be false or misleading in any material particular; or Section 33(2)(d) when appearing before the National Environmental Complaints Committee for examination, makes a statement which he knows to be false or misleading in any material particular, commits an offence. Section 33(3) A person convicted of an offence under subsection (2) shall be li...

Section 34. Proceedings of the Complaints Committee privileged Section No proceedings shall lie against the Chairperson 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. [Act No. 5 of 2015 , s. 2, Act No. 18 of 2018 , Sch.]

Section 35. Disclosure of interest Section 35(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. Section 35(2) A disclosure of interest made under subsection (1) shall be recorded in the minutes of the meeting at which it is made. [Act No. 5 of 2015 , s. 2, Act No. 18 of 2018 , Sch.]

Section 36. Remuneration and other expenses of the Complaints Committee Section 36(1) There shall be paid to the Chairperson and members of the Complaints Committee, such remuneration, fees or allowances for expenses as the Cabinet Secretary may determine. Section 36(2) 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. [Act No. 5 of 2015 , s. 2, Act No. 18 of 2018 , Sch.]

Section 37. National Environment Action Plan Section 37(1) The Authority shall, within two years of the commencement of this Act and every six years thereafter, formulate the National Environmental Action Plan and shall ensure that it has undertaken public participation before the adoption of the Plan. Section 37(2) The Authority shall submit the Plan referred to in subsection (1) to the Cabinet Secretary for approval. Section 37(3) Upon the approval of the Plan, the Cabinet Secretary shall submit it to the National Land Commission and the Ministry of Lands. Section 37(4) The Cabinet Secretary shall publish the National Environment Action Plan in the Gazette . Section 37(5) The Authority shall review the National Action Plan every three years. [Act No. 5 of 2015 , s. 23.]

Section 38. Provisions of the National Environment Action Plan Section 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;

Section 39.[Repealed by ActNo. 5 of 2015, s. 24.]

Section 40. County Environment Action Plan Section 40(1) Every County Environment Committee shall, within one year of the commencement of this Act and every five years thereafter, prepare a county environment action plan in respect of the county for consideration and adoption by the County Assembly. Section 40(2) Every County Environment Committee, in preparing a county environment plan, shall undertake public participation and take into consideration every other county environment action plan already adopted with a view to achieving consistency among such plans. Section 40(3) The respective County Executive Committee members of every county shall submit the county environment action plan referred to in subsection (1) to the Cabinet Secretary for incorporation into the national environment action plan referred to in section 37 . Section 40(4) The Authority shall consider every county environment action plan and either recommend incorporation of such plan into the national environment action plan or specify changes to be incorporated into a respective county environmental plan. Section 40(5) The Cabinet Secretary shall, on the recommendation of the Authority, issue guidelines and pr...

Section 41. Contents of County Environment Action Plans Section Every county environment action plan prepared under section 40 shall contain provisions dealing with matters contained in section 38 (a) to (j) in relation to their respective county. [Act No. 5 of 2015 , ss. 2 & 26.]

Section 41A. Purpose of Environmental Action Plans Section minimize the duplication of procedures and functions; and promote consistency in the exercise of functions that may affect the environment; and

Section 41B. Monitoring compliance with Environmental Plans Section 41B(1) The Authority shall monitor compliance with the national and county environmental action plans and may take any steps or make any inquiries that it may consider necessary in order to determine if the plans are being complied with. Section 41B(2) If as a result of any action taken or inquiry made under subsection (1) the Authority is of the opinion that a plan is not substantially being complied with, the Authority shall serve a written notice to the organ concerned, calling on it to take such specified steps as the Authority may consider necessary to remedy noncompliance. Section 41B(3)(a) objections to the notice, if any; Section 41B(3)(b) the action that will be taken to ensure compliance with the respective plan; or Section 41B(3)(c) other information that the organ considers relevant to the notice. Section 41B(4)(a) to confirm amend or cancel the notice referred to in subsection (2); Section 41B(4)(b) to specify any action and a time period within which such action shall be taken to remedy non-compliance. Section 41B(5) The Authority shall keep a record of all environmental action plans and ensure that s...

Section 108. Issue of Environmental Restoration Orders Section 108(1) Subject to any other provisions of this Act, the Authority may issue and serve on any person in respect of any matter relating to the management of the environment an order in this Part referred to as an environmental restoration order. Section 108(2)(a) require the person on whom it is served to restore the environment as near as it may be to the state in which it was before the taking of the action which is the subject of the order; Section 108(2)(b) prevent the person on whom it is served from taking any action which would or is reasonably likely to cause harm to the environment; Section 108(2)(c) award compensation to be paid by the person on whom it is served to other persons whose environment or livelihood has been harmed by the action which is the subject of the order; Section 108(2)(d) levy a charge on the person on whom it is served which in the opinion of the Authority represents a reasonable estimate of the costs of any action taken by an authorised person or organisation to restore the environment to the state in which it was before the taking of the action which is the subject of the order. Section 1...

Section 109. Contents of environmental restoration orders Section 109(1)(a) the activity to which it relates; Section 109(1)(b) the person or persons to whom it is addressed; Section 109(1)(c) the time at which it comes into effect; Section 109(1)(d) the action which must be taken to remedy the harm to the environment and the time, being not more than thirty days or such further period as may be prescribed in the order within which the action must be taken; Section 109(1)(e) the powers of the Authority to enter any land and undertake the action specified in paragraph (d); Section 109(1)(f) the penalties which may be imposed if the action specified in paragraph (d) is not undertaken; Section 109(1)(g) the right of the person served with an environmental restoration order to appeal to the Tribunal against that order, except where the order is issued by a court of competent jurisdiction, in which case the right of appeal shall lie with superior courts. Section 109(2) An Environmental Inspector of the Authority may inspect or cause to be inspected any activity to determine whether that activity is harmful to the environment and may take into account the evidence obtained from that insp...

Section 110. Reconsideration of environmental restoration order Section 110(1) At any time within twenty-one days after the service of an environmental restoration order, a person upon whom the order has been served may, by giving reasons in writing, request the Authority to re-consider that order. Section 110(2) Where the Authority exercises the power under subsection (1), the expenses necessarily incurred by it in the exercise of that power shall be a civil debt recoverable summarily by it from the person referred to in subsection (1).

Section 111. Issue of environmental restoration order by a court Section 111(1) Without prejudice to the powers of the Authority under this Act, a court of competent jurisdiction may, in proceedings brought by any person, issue an environmental restoration order against a person who has harmed, is harming or is reasonably likely to harm the environment. Section 111(2) For the avoidance of doubt, it shall not be necessary for a plaintiff under this under this section to show that he has a right or interest in the property, environment or land alleged to have been or likely to be harmed.

Section 112. Environmental easements and environmental conservation orders Section 112(1) A court may, on an application made under this Part, grant an environmental easement or an environmental conservation order subject to the provisions of this Act and the Land Act ( Cap. 280 ). Section 112(2) The object of an environmental easement is to further the principals of environmental management set out in this Act by facilitating the conservation and enhancement of the environment, in this Act referred to as the benefited environment, through the imposition of one or more obligations in respect of the use of land, in this Act referred to as the burdened land, being the land in the vicinity of the benefited environment. Section 112(3) An environmental easement may be imposed on and shall thereafter attach to the burdened land in perpetuity or for a term of years or for an equivalent interest under customary law as the court may determine. Section 112(4)(a) preserve flora and fauna; Section 112(4)(b) preserve the quality and flow of water in a dam, lake, river or acquifer; Section 112(4)(c) preserve any outstanding geological, physiographical, ecological, archeological or historical fea...

Section 113. Application to court for environmental easement Section 113(1) A person or a group of persons may make an application to the court for the grant of one or more environmental easements. Section 113(2) The court may impose such conditions on the grant of an environmental easement as it considers to be best calculated to advance the object of an environmental easement.