Environmental Management and Co-ordination Act

2. Interpretation

Edition: 2022-12-31 · In force

2. Interpretation

In this Act, unless the context otherwise requires—"air quality" means the concentration prescribed under or pursuant to this Act of a pollutant in the atmosphere at the point of measurement;"ambient air" means the atmosphere surrounding the earth but does not include the atmosphere within a structure or within any underground space;"analysis" means the testing or examination of any matter, substance or process for the purpose of determining its composition or qualities or its effect (whether physical, chemical or biological) on any segment of the environment or examination of emissions or recording of noise or sub-sonic vibrations to determine the level or other characteristics of the noise or sub-sonic vibration or its effect on any segments of the environment;"Analyst" means an analyst appointed or designated under section 119;"annual report on the state of the environment" means the report prepared and issued under section 9;"Authority" means the National Environment Management Authority established under section 7;"beneficial use" means a use of the environment or any element or segment of the environment that is conducive to public health, welfare or safety and which requires protection from the effects of wastes, discharges, emissions and deposits;"benefited environment" means that environment which has benefited through the imposition of one or more obligations on the burdened land;"biological diversity" means the variability among living organisms from all sources including, terrestrial ecosystems, aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, among species and of ecosystems;"biological resources" include genetic resources organisms or parts thereof, populations, or any other biotic component or ecosystems with actual or potential use or value for humanity;"burdened land" means any land upon which an environmental easement has been imposed;"Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matter relating to environment and natural resources;"chemical" means a chemical substance in any form whether by itself or in a mixture or preparation, whether manufactured or derived from nature and for the purposes of this Act includes industrial chemicals, pesticides, fertilizers and drugs;"coastal zone" means the geomorphologic area where the land interacts with the sea comprising terrestrial and marine areas made up of biotic and abiotic components or systems coexisting and interacting with each other and with socio-economic activities;"Complaints Committee" means the National Environmental Complaints Committee established under section 31;"Continental Shelf" has the meaning assigned to it by the United Nations Convention on the Law of the Sea;"controlled area" means any area designated as such by the Cabinet Secretary under this Act;"County Environment action plan" mean a County Environment action plan prepared under section 40;"County Environment Committee" means a committee established under section 29;"county government" has the meaning assigned to it in section 2 of the County Governments Act (Cap. 265);"Deposit Bond" means a deposit bond paid under section 28;"developer" means a person who is developing a project which is subject to an environmental impact assessment process under this Act;"Director" means a Director appointed under section 10;"Director-General" means the Director-General of the Authority appointed under section 10;"District Environment Action Plan" deleted by Act No. 5 of 2015, s. 2(1)(c);"District Environment Committee" deleted by Act No. 5 of 2015, s. 2(1)(b);"ecosystem" means a dynamic complex of plant, animal, micro-organism communities and their non-living environment interacting as a functional unit;"effluent" means gaseous waste, water or liquid or other fluid of domestic, agricultural, trade or industrial origin treated or untreated and discharged directly or indirectly into the aquatic environment;"element" in relation to the environment mean any of the principal constituent parts of the environment including water, atmosphere, soil, vegetation, climate, sound, odour, aesthetics, fish and wildlife;"environment" includes the physical factors of the surroundings of human beings including land, water, atmosphere, climate, sound, odour, taste, the biological factors of animals and plants and the social factor of aesthetics and includes both the natural and the built environment;"environmental audit" means the systematic, documented, periodic and objective evaluation of how well environmental organisation, management and equipment are performing in conserving or preserving the environment;"environmental easement" means an easement imposed under section 112;"environmental education" includes the process of recognising values and clarifying concepts in order to develop skills and attitudes necessary to understand and appreciate the inter-relatedness among man, his culture and his biophysical surroundings;"environmental impact assessment" means a systematic examination conducted to determine whether or not a programme, activity or project will have any adverse impacts on the environment;"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 organization" means a public benefits organization whose objective is to conserve the environment and natural resources and is duly registered as a community based organization, or a public benefits organization;"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" has the meaning assigned to it by the United Nations Convention on the Law of the Sea;"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 microrganism 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;"indigenous knowledge" means any traditional knowledge of sources, components, capabilities, practices and uses of, and processes of preparation, use and storage of plant and animal species and their genetic resources;"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 rights to beneficial use of the environment the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;"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 or any element of the environment or natural resources;"local authority" deleted by Act No. 5 of 2015, s. 2(1)(f);"Ministry" means the Ministry 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 Public benefit organizations" means the Council established by section 23 of the Public Benefit Organizations Co-ordination Act, 1990 (No. 19 of 1990);"National Environment Action Plan" means the plan referred to in section 37;"natural resources" has the meaning provided under Article 260 of the Constitution;"natural resource agreements" means an agreement which involves the grant of a right or concession by or on behalf of any person, including the national government, to another person for the exploitation of any natural resource in Kenya;"noise" means any undesirable sound that is intrinsically objectionable or that may cause adverse effects 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 occupational 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—

(a)crude oil, refined oil, diesel oil, fuel oil and lubricating oil; and

(b)any other description of oil which may be prescribed;

"owner" in relation to any premises means—

(a)the registered proprietor of the premises;

(b)the lessee, including a sub-lessee of the premises;

(c)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;

(d)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 ship’s 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;"person" means a legal person;"pollutant" includes any substance whether liquid, solid or gaseous which—

(a)may directly or indirectly alter the quality of any element of the receiving environment;

(b)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" includes 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;"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 messages, 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 effects of a proposed development referred to in section 58;"proponent" means a person proposing or executing a project, program 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" deleted by Act No. 5 of 2015, s. 2(1)d);"Public Department" deleted by Act No. 18 of 2018, Sch.;"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;"strategic environmental assessment" means a formal and systematic process to analyse and address the environmental effects of policies, plans, programmes and other strategic initiatives;"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 (Cap. 371);"trade" means any trade, business or undertaking whether originally carried on at fixed premises or at varying places which may result in the discharge of substances and energy and includes any activity prescribed to be a trade, business or undertaking for the purposes of this Act;"traditional knowledge" means such knowledge as may be socially and culturally acquired within or without the context of conventional education by Kenyans;"Tribunal" means the National Environment Tribunal established under section 125;"Trust Fund" means the National Environment Trust Fund established under section 24;"voluntary environmental management" means the principle of encouraging voluntary compliance in conserving the environment and which is a cost-effective and efficient method of attaining compliance with environmental regulations and of encouraging innovative conservation practices;"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 of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres;"wildlife" has the meaning assigned to it in the Wildlife Conservation and Management Act (Cap. 376).[Act No. 5 of 2015, s. 2, Act No. 18 of 2018, Sch.]

Case law referring to this provision

Law Society of Kenya v Attorney General & 3 others (Environment and Planning Petition 2 of 2023) [2023] KEELC 20682 (KLR) (12 October 2023) (Judgment)

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Source: Kenya Law