KENYA WATER INSTITUTE

WREM DEPT: TABLE OF SPECIFICATION

COURSE CODE: WRE 2334 COURSE: WATER AND ENVIRONMENTAL

LAW

CLASS: DIPLOMAS YEAR II SEM I EXAMINER: MR.WAWERU

Topic/Sub -Topic Instructional Teaching Total Test items

Objectives time Marks (To be
allocation Allocation filled by
(Hrs) Examiner)

BASIC PRINCIPLES
OF LEGISLATION

History of water law

Outline the sources 6 4

of Kenyan law

Define law 2

Elements of law Outline the elements 2

of law

Classification of law Classify the law 2

Discuss the
categories of law

HISTORY OF WATER
LAW

Early doctrines Outline the process 3 5

of easement
acquisition
Generations of law in Discuss the 3 5
Kenya generations of law
in Kenya

OWNERSHIP, USE OF
WATER

Ownership concepts Briefly explain the

ownership concept
5 7
of water resources

ENVIRONMENTAL Define hazardous 2 3

QUALITY waste
STANDARDS

Waste and licensing Outline the steps 5 6

followed in
acquisition of
licence for
municipal solid
waste

Cancellation of licenses Explain the 4 6

circumstances under
which a licence can
be cancelled

REGULATION OF
WATER RIGHTS AND
WORKS

Easement Outline the process 4 6

of easement
Effluent discharge
acquisition
4 6
Explain the
importance of
effluent discharge
 licence

ENVIRONMENTAL
LAW
ADMINISTRATION

EMCA institution Explain the 6 9

functions of public
complaints
committee 6 7
Discuss the
relevance of
National
Environment Trust
Fund in the
management of
environment

Grand total 42 70
Elements of law/Legislations

a) Rights are legal social or ethical principles of freedom: rights are the fundamental normative
rules about what is allowed of people or owed to people according to some legal system. Rights are of
essential importance to such disciplines as law. Examples of rights include a right to life, a right to
choose, a right to vote, etc. others can be categorized as animal rights, child rights, workers right.

b) Duties/ obligations this refers to moral obligation or an act or a course of action that is required
of one by manner conducive to the wellbeing of everyone around them such as the prevention of any
foreseen ‘injury to a victim. Such a term that best represents this obligation is that of duty of care or
good Samaritan to an extent

c) Liability means legal responsibility for ones act or omissions. Failure of a person or an entity to
meet that responsibility leaves him or her open to a law suit for any resulting damages. In order to win a
law suit the suing party (plaintiff) must prove the legal liability of the defendant if the plaintiff
allegations are shown to be true. Liability also applies to alleged criminal acts in which the defendant
may be responsible for his or her acts which constitute a crime making him subject to conviction.

Sources of Kenya law

a) The Kenya constitution. Constitution is the single formal document which defines the
composition and powers of different organs of the state or the institutions and their relationship with
each other and to private citizens.

- It is binding on all members and state organs at all levels

- State authority must be exercised as authorized by the constitution.

- Every person is expected to uphold and respect the constitution.

- Any attempt to establish a government without complying with the constitution requirement is
unlawful.

b) Acts of parliament. In Kenya today the power to legislate is vested in Kenyan parliament
which consists of national assembly and the senate establish hed at chapter eight of the Kenya
constitution. A draft act of parliament is known as a bill. Once introduced a bill must undergo through a
number of stages before it can become law. Examples of act of parliament include the KEWI act, EMCA
1999, WATER act etc
c) Common law A Common law refers to law characterized by case law which law is developed
by judges through decisions of court and similar tribunals. In cases where the parties disagree on what
the law is a common law court looks to past precedential decisions of relevant courts. If a similar dispute
has been resolved in the past the court is usually bound to follow the reasoning used in the prior
decisions this principle is known as stare decisis

d) African customary law customary law is understood to be rules of law derived from the
customs and usages of different communities. A custom is a habit, norm or usage by a given community
that has lasted over time and has its roots in wisdom, need and character of a particular community.
Before arrival of British colonialist indigenous legal institutions were found everywhere and were
customary in origin. They were unwritten and there were no written legislations laws report, legal
institutions or written or written legal process. Statutory application of customary law is provided by the
judicature act chapter 8 and magistrate court cap 10 of Kenya law. They settled issues on marriage,
divorce, maintenance of dowry, land held under customary tenure, adultery etc. They are also still in use
today e.g. the case of Wambui Otieno.

Weaknesses

1. It is unwritten hence there is need for an expert or witness to provide existence of such a law

2. Lack of uniformity as each community had its own.

3. Notr absolute. It changes from time to time and the judge has to ascertain the customs in place.

e) Islamic law; It is a limited source of law in Kenya applied by Kadhi courts established under
section 66 of the Kenya constitution. They help in solving matters related to personal status, marriages,
divorce, inheritance, in which all the parties involved are Muslim faith.

It is based on the holy book of Koran and the teachings of Prophet Mohammed contained in his
teachings known as hadith.

f) Judge made laws Refers to the decision of judges laying down legal principles for cases coming
before them. They are also referred to as case laws. They are found in judicial decision judgment. They
provide common reference to judge made laws. They are found in law reports. The common law have
developed through judicial precedence and stare decisis which means that in trying and deciding cases as
judge must look backward and see how the previous judges have dealt with the cases involving similar
part

g) International conventions international convention refers to multilateral treaty or the

instrument negotiated with under the auspice of international organization such as the United Natio ns
convention on the law of the sea of 1982. ,
Classes of law

There are two classes of law i.e.

 Criminal law
 civil law

Criminal law is the body of law that relates to crime. It is the body of law that defines conduct that is not
allowed. It involves prosecution by the government of a person for an act that has been classified as a
crime. It includes the punishment of people who violates these laws. Criminal law differs from civil law
whose emphasis is more on dispute resolution and victim compensation

Civil law It is a branch of law dealing with disputes between individuals or organizations in which
compensation may be awarded to the victim for instance if a car crash victim claim damages against the
driver for loss or injury sustained in an accident. This will be a civil law. Civil law differs from criminal
law whose emphasis is more of punishment than in dispute resolution.

LAW OF TORT

A tort is a civil breach committed against another in which the injured party can sue for damages. In
personal injury cases the injured party will attempt to receive compensation in order to recover for the
damages incurred. Tort law decides whether a person should be held legally responsible for injury
against another and to what type of compensation the injured party is entitled to.

Elements of a tort

a) Wrongful act or omission by the defendant.

b) Plaintiff legal right is violated

c) Availability of legal remedy in form of damages

-Wrongful act or omission by the defendant

Negligence in tort

Negligence in tort law refers to harm caused by carelessness. The core idea of negligence is that people
should exercise reasonable care when they act by taking account of the potential harm that they might
foresee can cause harm to other people.

Elements of negligence
1. The defendant owed the plaintiff a duty of care

The plaintiff must prove that the defendant owed him a duty of care in the circumstance. The
circumstance must have been such that the defendant knew or ought to have known that acting
negligently would injure the plaintiff. Every person owes his neighbour a duty of care. Therefore you
must take reasonable acts which you can reasonably foresee would likely to injure your neighbour. As a
general rule every one owes his neighbour a legal duty of care. You must take reasonable course to
avoid acts which you can reasonably foresee would likely injure your neighbour

However there are cases of unforeseen plaintiffs. These are circumstances in which the defendant does
not owe the plaintiff a duty of care. In such circumstances the plaintiff cannot sustain an action against
the defendant irrespective of negligence e.g. an expectant mother suffered nervous shock on hearing a
loud bang and seeing a pool of blood caused by negligently ridden motorcycle. It was held that she could
not recover since the motorcyclist could not have reasonably foreseen her suffering.

2. There has been a breach of that legal care

The plaintiff must proof that the defendant owed him a duty of care on that circumstance. The
circumstance must have been such that the defendant knew or ought to have known that acting
negligently would injure the plaintiff. The plaintiff must proof the specific act of omission on the part of
the defendant. However in certain cases negligent is proved without evidence. These cases are referred
to as res-ipsa loquitor which means it speaks for itself. This is a rule of evidence by which the plaintiff
is deemed to have established negligence.

3. The plaintiff has suffered injury to his/ her person or property

The plaintiff must prove that as a result of the defendant breach of duty he suffered loss or damage. The
plaintiff loss must be traceable to the defendant breach of legal duty. The defendant is reasonably liable
to loss or damage which is reasonably foreseen from his act of omission.

Nuisance in tort

Nuisance arises from unreasonable, unwarranted or unlawful use, by a person, of his own property,
causing obstruction or injury to the rights of another or to the public. Such activity becomes actionable if
it results in material annoyance, inconvenience and discomfort which harms or injures others, and
prevents their reasonable enjoyment of the property they occupy. For the purpose of this course we shall
look at two types of nuisance i.e. public nuisance and private nuisance

A public nuisance is that which affects an indefinite number of persons although the extent of injuries
suffered need not be equal. To constitute a public nuisance there must be a number of persons annoyed
so that the offence can no longer be considered a private nuisance example include e.g. air pollution
from industries and municipal dumpsites.

A private nuisance is that which affects an individual or a small number of persons eg rearing hogs.

Capacity in tort

The general rule is that all persons can sue and be sued in tort. All persons are subject to the same laws
administered in the same courts. However, certain persons are subject to certain disabilities or possess
certain rig hts or privileges under the law.

a) The Government

The government proceedings act CAP 40 makes the government subject to liabilities in tort as if it were
a private person of full age and capacity. The extent of this liability is set out as follows

i) In respect of torts committed by its servants or agents.

ii) In respect of any breach of those duties which a person owes to his servants or agents at common
law by reason of being their employer and

iii) In respect of any breach of the duties attaching at common law to the ownership, occupation,
possession or control of property.

For the government to be vicariously liable the servant or agent must have been personally liable.

b) Infants or minors

Infants can sue and be sued in the same way as any other person. The only qualification is a procedural
one; an infant plaintiff sues by his next friend (a parent). The age of a minor would be relevant in some
tort where evidence of intention of malice was required. In the case of negligence the infant may not
have reached the stage of mental development where it could be said that he should be held legally
responsible for his negligent acts. But even a child may be guilty of negligence if old enough to take
precautions for his own safety in attorney general v vinod (1971) a child aged 8 ½ years was held partly
to blame for an accident . A parent or guardian is not in general liable for the torts of a child but he could
be personally liable in negligence.

c) Husband and wife

Under the married women property act 1870-1884 (English statute of general application in Kenya) a
wife can sue her husband in tort for the protection and security of her property. Otherwise neither spouse
can sue each other in tort for the common law considers such litigation is unseemly, distressing and
embittering. Both husbands and wives have the capacity to sue and be sued in tort.
d) Trade unions

A trade union can sue in tort, but actions against it in tort are limited by statute. Under the trade unions
act neither trade unions nor their officers and members can be sued in respect of any act done in
contemplation or in furtherance of a trade dispute.

e) Corporations

A corporation can sue and be sued in its own name for torts committed. But there are some torts which
by their nature it is impossible to commit against a corporation such as assault or false imprisonment. A
corporation can sue for malicious defamation. Liability of corporation is however limited thus if a
servant commits a tort that is ultra vires the corporation then the corporation is not liable.

f) Persons of unsound mind

Liability depends on whether the person knew what he was doing when he committed the tort, this can
be proven by a psychiatrist.

In Morris vs. Marsden 1952 the defendant rented a room in a hotel while there he attacked the manager
of the hotel, at that time he was suffering a disease of the mind. It was established that he knew the
nature and the quality of his act but he did not know that it was wrong; it was held that as the defendant
knew the nature and quality of his act he was liable in tort for assault and battery. It was immaterial that
he did not know that what he was doing was wrong. Unsoundness of the mind is thus certainly not in
itself a ground of immunity from liability in tort, and it is submitted that the true question in each case is
whether the defendant was possessed of the requisite state of mind for liability in the particular tort for
which he is charged.

Defences in tort

a) Act of God

Where damage is caused naturally –

by circumstance which no human foresight can provide against and of which no human prudence is not
bound to recognize the defense of act of God applies. For this defense to succeed it must be shown that
the act was unforeseeable and it was unusual.

b) Volenti non fit injuria

This is the defense that the plaintiff both knew of the risk he was running and willingly
consented to run that risk. Simple examples are found in the world of sports e.g. football, boxing,
cricket, rugby.
 This defense is available in circumstances where the plaintiff with full knowledge of the risks
voluntarily agrees to undertake the same. The defendant must prove

The plaintiff had actual knowledge of dangers and extent of the risks.

That the plaintiff has agreed to incur voluntarily.

c) Inevitable accident

This is an accident which is not avoidable by any such precaution as a reasonable man doing such an act
then and there could be expected to take. In Stanley vs. Powell the defendant was a member of a
pheasant shooting party and the plaintiff was employed to carry cartridges and such game as was shot.
Without any negligence in his part the plaintiff one of the defendant’s shots glanced off the bough of the
tree and struck the plaintiff who sought to recover damages, in respect of the injury which he suffered as
a result. It was held that the defendant was not entitled to judgment as he had not been negligent and was
not liable for trespass to the person as the wound was inflicted accidentally.

d) Statutory authority

This may be relied upon by the defendant usually the state or its agents if the nuisance is authorized by
the statute. The defendant has a complete defense only if he can prove that he acted in accordance with
the provisions of the act. Whether the defendant succeeds or not depends in the interpretation of the
statute.

e) Necessity

It may be relied upon if the tort complained of what is necessary to protect the society. It is usually
relied upon by the state for acts taken to protect the society at large as the interest of the public prevails
the critical thing is that the act done has to be reasonable. Necessity is limited to cases involving an
urgent situation. The measures taken must be reasonable and this will depend on whether there is human
life or merely property in damage.

f) Mistake

Mistake, whether of law or facts, is usually no defense to an action in the tort. Mistake may be of some
relevance when the court has to determine whether the defendant has acted reasonably or not. This could
arise in cases of malicious prosecution, false imprisonment or deceit. Mistake would not be a defense in
actions for defamation.

g) Plaintiff default/ contributory negligence

This defense may be relied upon if the plaintiff is also to blame for his suffering. The defendant must
prove that

i. The plaintiff exposed himself to the dangers / risks by act of omission

ii. The plaintiff was fault or neglect.

iii. The plaintiff neglect or fault contributed to his suffering.

This defense does not absolve the defendant from liability it merely reduces the amount of damages
payable to the defendant to the extent of the plaintiff contribution

WATER LAW

History of water law in Kenya

Crown Lands Ordinances, Water Ordinances (1929)

This includes management of water resources and provision of water supply. In the past
the law relating to water management was contained in water act CAP 372.

The Kenyan water sector underwent far reaching reforms through the water act 2002.
Previously service provision had been the responsibility of single water conservation and
Pipeline Corporation as well as a few local utilities established since 1996. After the
passage of the act service provision was gradually decentralized to117 water service
providers (WSPs). These are linked to seven regional water services boards (WSBs) in
charge of asset management through service provision agreements (SPAs). The act also
created a national regulatory board (WASREB). The ministry of water and irrigation is in
charge of policies for water supply and ministry of public health and sanitation is in ch
arge of policies for sanitation. The water act 2002 has since been replaced by the new
water act 2016 to be in line with the constitution of 2010 and devolution of the water
sector.
Riparian right doctrine

Kenya’s statutory law on management of water resources is based on the common law
and under the common law the land owner is presumed to own everything on the land up
to the sky and down to the centre of the earth. The common law considers running water
air and light to be things the property of which belongs to no person. But the use of all
persons. Although the common law consinders that the land owner owns everything on
land a land owner has no property in running water, air and light. In dealing with water
rights the riparian doctrine states that water belongs to the person whose land borders a
body of water. Riparian owners are permitted to make reasonable use of this water
provided it does not unreasonably interfere with the reasonable use of this water by others
with riparian rights. Riparian rights are correlative which means all riparian land owners
have equal rights to use the stream or river. Under the riparian doctrine a riparian; land
owner has the right to a reasonable amount of water4 to supply needs naturally
arising.2311

1. Riparian right doctrine. The owner of the land adjacent to a stream is entitled to
receive the full natural flow without change in quality and quantity.
Merit - Protects the downstream owners
Demerit - freedom limited.
2. Prior appropriation right doctrine. The first in time first in right. The later
claimant may go without
Merits- rights are earlier preserved
Demerit-The later claimant not taken in to consideration

3. Water right doctrine. Right obtained from application for the water permit
Merit- Equitable distribution of water
Demerit-time consuming
WATER SECTOR INSTITUTIONS
Powers and functions of Basin Water Resource Committee
A basin water resources committee shall be responsible for the management of the water
resources within a respective basin area.

The powers and functions of the basin water resources committee shall be to advise the
Authority and county governments, at the respective regional office, concerning-
(a) Conservation, use and apportionment of water resources;
(b) The grant, adjustment, cancellation or variation of any permit
(c) Protection of water resources and increasing the availability of water;
(d) Annual reporting to the users of its services and the public on water issues and their
performance within the basin area;
(e) Collection of data, analyzing and managing the information system on water
resources;
(f) Review of the basin area water resources management strategy;
(g) Facilitation of the establishment and operations of water resource user associations;
(h) Flood mitigation activities
(i) Information sharing between the basin area and the Authority;
(J) The equitable water sharing within the basin area through water allocation plans; and
(k) Any other matter related to the proper management of water resources.
Water resource users associations (WRUAS)
A water resource users association shall be a community based association for
collaborative management of water resources and resolution of conflicts concerning the
use of water resources.
The basin water resources committees may contract water resource users associations as
agents to perform certain duties in water resource management.
National Water Harvesting and Storage Authority (NWHSA)
The functions and powers of the NWHSA shall be to-
(a) Undertake on behalf of the national government, Authority. The development of
national public water works for water resources storage and flood control;
(b) Maintain and manage national public water works infrastructure for water resources
storage;
(c) Collect and provide information for the formulation by the Cabinet Secretary of the
national water resources storage and flood control strategies;
(d) Develop a water harvesting policy and enforce water harvesting strategies:
(e) Undertake on behalf of the national government strategic water emergency
interventions during drought; and
(f) Advise the Cabinet Secretary on any matter concerning national public water works
for water storage and flood control.
WATER SECTOR TRUST FUND
The objective of the Fund is to provide grants to counties, in addition to the to assist in
financing the development and management of water services in
marginalized areas. Including:
(a) community level initiatives for the sustainable management of water resources;
(b) development of water services in rural areas considered not to be commercially viable
for provision of water services by licensees;
(c) development of water services in the under-served poor urban areas; and
(d) research activities in the area of water resources management and water services,
sewerage and sanitation.

WATER SERVICES REGULATORY BOARD (WSREB)

The powers and functions of the Regulatory
Board shall be to-
(a) Determine and prescribe national standards for the provision of water services and
asset development for water services providers;
(b) Evaluate and recommend water and sewerage tariffs to the county water services
providers and approve the imposition of such tariffs in line with consumer protection
standards;
(c) Set licence conditions and accredit water services providers;
(d) Monitor and regulate licensees and enforce licence conditions;
(f) Monitor compliance with standards including the design, construction, operation and
maintenance of facilities for the provision of water services by the water works
development bodies and the water services providers;
(g) Advise the Cabinet Secretary on the nature, extent and conditions of financial support
to be accorded to water services providers for providing water services;
(h) Monitor progress in the implementation of the Water Strategy and make appropriate
recommendations;
(k) Develop guidelines on the re-establishrnent of consumer groups and facilitate- their
establishrnent;
(l) Inspect water works and water services to ensure that such 'works and services meet
the prescribed standards;
(rn) report annually to the public on issues of water supply and sewerage services and the
perfomance of relevant sectors and publish the reports in the gazette.
(o) Advise the Cabinet Secretary on any matter in connection with water serices. and
(p) Make recommendations on how to provide basic water services to marginalized areas.

Powers and functions of Water Resources Regulatory Authority

The functions of the Authority are to—

(a) Formulate and enforce standards, procedures and regulations for the management and
use of water resources and flood mitigation;
(b) Regulate the management and use of water resources in consultation with the National
Land Commission;
(c) Enforce regulations;
(d) Receive water permit applications for water abstraction, water use and recharge and
, vary water permits; and enforce the conditions of those permits;
e) Collect water permit fees and water use charges;
(f) Determine and set permit and water use fees for issuance by the basin water resources
committees;
(g) Provide information and advice to the Cabinet Secretary for formulation of policy on
national water resource management, water storage and flood control strategies;
(h) Coordinate with other regional, national and international bodies for the better
regulation of the management and use of water resources; and
(i) Advise the Cabinet Secretary generally on the management and use of water
resources.

The powers and functions of the Basin Water Resources Committee shall be to-

(a) Advise the Authority at the appropriate regional office concerning-

(i) water resources conservation, use and apportionment;

(ii) The grant, adjustment, cancellation or variation of any permit; and
(iii) Any other matters pertinent to the proper management of water resources;

(b) Protect water resources and increase water availability;

(
c) Report annually to the users of its services and the public on water issues and their
performance within the basin area;
(d) Collect water resources data, analyze and manage the information system;
(e) Review the basin area water resources management strategy;
(f) Facilitate the formation of water resource user associations provided for under section
and their activities;
(g) Carry out flood mitigation activities;
(h) Facilitate information sharing between the basin area and the Authority; and
(i) Ensure equitable water sharing within the basin area through water allocation plans.
Kenyas drainage basins include
The Lake Victoria basin
Rift valley basin
Athi river basin
Tana river basin
Ewaso ngiro river basin
The functions and powers of the National
Water Harvesting and Storage Authority
shall be to –

(a)

Undertake on behalf of the national

government, the development of national
public water works for water resources
storage.
 (b) Maintain and manage national public water works infrastructure for water resources storage;
(c) Collect and provide information for the formulation by the Cabinet Secretary of the national water
resources storage and flood control strategies;
(d) Develop a water harvesting policy and enforce water harvesting strategies; and
(e) Advise the Cabinet Secretary on any matter concerning national public water works for water storage.

Water Works Development Boards

The powers and functions of the Water works development agency shall be to -

(a) Undertake the development, maintenance and management of the national public water works within its
area of jurisdiction;

(b) Operate the water works and provide water services as a water service provider, until such a time as
responsibility for the operation and management of the water works are handed over to a county government,
joint committee, authority of county governments or water services provider within whose area of jurisdiction
or supply the waterworks is located;

(c) Provide reserve capacity for purposes of providing water services where pursuant to section 103. The

Regulatory Board orders the transfer of water services functions from a defaulting water services provider to
another licensee:

(d) Provide technical services and capacity building to such county governments and water services providers
within its area as may be requested; and
(e) Provide to the Cabinet Secretary technical support in the discharge of his or her functions under the
Constitution and this Act.

WATER SERVICE PROVIDER

A water services provider shall be responsible

for-

(a) the provision of water services within the area specified in the licence; and

(b) the development of county assets for water service provision.

(2) A licensed water services provider shall have such other powers and functions as may beconferred on it by
this Act or any other Act.

WATER TRIBUNAL

The Tribunal shall exercise the powers and functions set out in this Act and in particular shall hear and

determine appeals at the instance of any person or institution directly affected by the decision or order of the

Cabinet Secretary, the Authority and Regulatory Board of any person acting under the authority of the Cabinet

Secretary, the Authority and Regulatory Board.

(2) In addition to the powers set out in subsection

the Tribunal shall have the power to hear and determine

any dispute concerning water resources or water services

where there is a business contract, unless the parties have

otherwise agreed to an alternative dispute resolution

mechanism.

ENVIRONMENTAL QUALITY STANDARDS

 Hazardous waste refers to any industrial by product especially from the manufacture of chemicals that
is destructive to the environment or dangerous to the health of people or animals.

Areas of emphasis of Environmental management and coordination (Waste management) regulations in

Kenya

Steps followed in acquisition of licence for municipal solid wastes

 Application is done by filling forms

 Application to the authority (NEMA)
 The authority determines the application

Cancellation of licences

When the licence holder fails to abide to the terms and conditions attached to the licence
When the licence was issued erroneously.

Upon request by the licence holder.

When the licence expires.

REGULATION OF WATER RIGHTS AND WORKS

A permit is required for any of the following purposes—

(a) Any use of water from a water resource, except as provided by section 35;
(b) The drainage of any swamp or other land;
(c)The discharge of a pollutant into any water resource; and
(d) Any other purpose, to be carried out in or in relation to a water resource, which is prescribed

A permit is not required—

(a) For the abstraction or use of water, without the employment of works, from any water resource for
domestic purposes by any person having lawful access to the water resource;
(b) for the abstraction of water in a spring which is situated wholly within the boundaries of the land owned by
any one landholder and a does not naturally discharge into a ,watercourse abutting on or extending beyond the
boundaries of that land; or
(c)For the storage of water in, or the abstraction of water from a reservoir constructed for the purpose of such
storage and which does not constitute a water course for the purposes of this Act.

Ways in which a water permit can be cancelled

 When a permit holder fails to comply with the terms and conditions attached to the permit
  Upon request by the permit holder

 When a permit holder fails to make any beneficial use with the water

 When a permit was issued erroneously

Procedure for application of water permits

An application for a permit shall be made to
the Authority at the applicable basin area.
(2) This shall be made
by completing and lodging the form prescribed by the
Authority, together with-
(b) the prescribed fee.
(3) The application shall be determined within six
months of receiving an application which meets the
requirements of the Authority.
(4) An application for a permit shall be the subject to
public consultation and, where applicable, of
environmental impact assessment in accordance with the
requirements of the Environmental Management and Coordination
Act,1999.
(5) Any person opposed to the grant of a permit may object in writing to the Water Tribunal within a period of
thirty days after publication of the notice of the application.
(6) The Authority must within thirty days notify the
applicant and any person who may have objected to the
grant of the application of its decision and in the event of a
rejection, the reasons for the rejection.
(7) Where an application made in accordance with
this section is not determined by the Authority any fee paid by the
applicant
shall be refunded to the
applic ant.

LICENCES
Water licences are issued by the water service regulatory board (WSREB) to water service providers for the
supply of water and sewerage services within their areas of jurisdiction.

Procedure for acquiring a water licence

 A person shall not be licensed as a water service provider unless such person makes an application
under this section to the Regulatory Board and submits a
copy of the application to the county government within
whose area of jurisdiction it intends to provide water
services.
(2) Prior to determination of the application, the
Regulatory Board shall publicise the application and shall
take into consideration the views of stakeholders including
the county government, within whose area of jurisdiction
the applicant intends to provide water services.
(3) The Regulatory Board shall issue a licence if the applicant meets the licensing requirements
The Regulatory Board may, revoke the licence of a water services provider on any of the following
grounds-
1. if it is shown to the satisfaction of the Regulatory Board that the licence was obtained by mistake,
Fraud.
2. The water services provider has for any reason ceased to meet the criteria for licensing.
3. if it is shown to the satisfaction of the Regulatory Board that the water services provider has refused,
failed or neglected to provide the services for which they were licensed;
4. the water services provider becomes insolvent, or
 is adjudged bankrupt; or
5. the water services provider has failed to comply with any conditions for licensing.

EASEMENT
An easement is a legal document issued by WRRA authorizing the holder to enter another person’s land for the purpose of
construction or maintaining water works.

Procedure for obtaining an easement

 Operator serves the land owner with a written notice, a copy of the notice is submitted to WRRA
 The land holder and operator draw an agreement prepared and signed by both parties and certified by a commissioner for
oaths
 A certified agreement is sent to registrar of titles.
 Registrar addresses the particulars of works.
 Two copies endorsed by registrar are submitted to WRRA
 WRRA issues easement

INSTITUTIONS UNDER EMCA

1. National Environmental Council (NEC)
The National Environment Council (NEC) is established under Section 4 of EMCA.NEC which is chaired by the cabinet
secretary in charge of the environment, is the highest policymaking body under EMCA. NEC is responsible for
1. policy formulation and directions for purposes of EMCA.
2. NEC sets national goals and objectives and promotes cooperation among
both public and private organizations engaged in environmental protection programs.
 2. The National Environmental Management Authority (NEMA)
The National Environmental Management Authority (NEMA) is established under Section 7
of EMCA. NEMA is the principal Government institution charged with the overall
supervision and co-ordination over all matters relating to the environment as well as
Implementation of all policies relating to the environment.
Coordinating the various environmental management activities being undertaken by the lead agencies
 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 sustainable yield basis,
for the improvement of the quality of human life in Kenya.
 To take stock of the natural resources in Kenya and their utilization and conservation.
 To establish and review land use guidelines.
 Examine land use patterns to determine their impact on the quality and quantity of natural resources.
 Carry out surveys, which will assist in the proper management and conservation of the environment.
 Advise the Government on legislative and other measures for the management of the environment or the implementation
of relevant international conventions, treaties and agreements.
 Advise the Government on regional and international conventions, treaties and agreements to which Kenya should be a
party and follow up the implementation of such agreements.
 Udertake and coordinate research, investigation and surveys, collect, collate and disseminate information on the findings
of such research, investigations or surveys.
 Mobilize and monitor the use of financial and human resources for environmental management.
  Identify projects and programs for which environmental audit or environmental monitoring must be conducted under this
Act. Initiate and evolve procedures and safeguards for the prevention of accidents, which may cause environmental
degradation and evolve remedial measures where accidents occur e.g. floods, landslides and oil spills.
 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. Management objectives must be adhered to and adequate early warning
on impending environmental emergencies is given.
 Undertake, in cooperation with relevant lead agencies, programs 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 manual 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 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.

3. Public Complaints Committee PCC

The Public Complaints Committee is established under Section 31 of EMCA. The
PCC is concerned with
 the investigation of complaints relating to environmental damage and
degradation generally.
  The PCC has powers to investigate complaints against any person or even against NEMA or on its own motion
investigate any suspected case of environmental degradation.
 The PCC is required by law to submit reports of its findings and recommendations to NEC.
The law however is weak in that it does not provide PCC with the
mandate to see its recommendations carried through. Further, NEC is not specifically
required to do anything with regard to the reports submitted by the PCC and will often note
and adopt the same without any further follow up action. So far the PCC has experienced
challenges such as failure to honour summons, hostility between parties, hostility directed at
PCC in-+vestigators, lack of understanding of EMCA and abdication of duty by Lead Agencies.

4. Standards and Enforcement Review Committee

The Standards and Enforcement Review Committee (SERC) is a committee of
NEMA and is established under Section 70 of EMCA. This is a technical Committee
responsible for
 formulation of environmental standards, methods of analysis, inspection,
monitoring and technical advice on necessary mitigation measures.
 Advise authority on establishment of criteria and procedures for water quality
 Recommend minimum water quality standards
 Analyze and submit conditions on discharge effluents
 Prepare and recommend guidelines for preservation of fishing area and aquatic areas
 Identify research on effects of water pollution.
 5. National Environmental Tribunal (NET)
The NET is established under Section 125 of EMCA for the purpose of hearing appeals from
administrative decisions by organs responsible for enforcement of environmental standards.
An appeal may be lodged by a project proponent upon denial of an EIA licence or by a local
community upon the grant of an EIA licence to a project proponent. NEMA may also refer
any matter that involves a point of law or is of unusual importance or complexity to NET for
direction. The proceedings of NET are not as stringent as those in a court of law and NET
shall not be bound by the rules of evidence as set out in the Evidence Act. Upon the making
of an award, NET’s mandate ends there as it does not have the power to enforce its awards.
EMCA provides that any person aggrieved by a decision or award of NET may within 30
days appeal to the High Court.
6. National Environment Action Plan Committee (NEAP)
The National Environment Action Plan Committee (NEAP) is established under Section 37
of EMCA. This cross-sectoral committee is responsible inter alia, for the development of a
five year national environment action plan. T he national environment action plan shall
contain among other aspects analysis of the natural resources of Kenya and their distribution,
quantity and various uses. It shall also recommend legal and fiscal incentives for business
that incorporate environmental requirements into their planning and operational processes as
well set out guidelines for the planning and management of the environment and natural
resources. The national environment action plan shall upon adoption by Parliament be
binding on all organs of government. Provincial and district environmental committees are
also required to develop their own five year environmental action plans which are
incorporated in the national environment action plan.