PHYSICAL PLANNING, LAND USE, AND DEVELOPMENT CONTROL (an assessment of Kenya’s Legal Situation).
By Peter Mburu Ng’ang’a1
Laying the Basis: Fundamental Concepts
This chapter discusses the concepts of; physical planning, land use and development control in Kenya. It highlights the legal and institutional frameworks governing the same and goes further to assess the current legal situation in Kenya and concludes by suggesting possible solutions that can be adapted to better the same.
Physical planning in its broadest sense refers to a set of actions aimed at improving the physical, social, and economic welfare of a place and its inhabitants. It is concerned with the general models of land use, the nature and location of public buildings and structures, parameters of land use, the design of streets, the location of transportation systems and all other facilities which are indispensable and desirable in the promotion of economic betterment, convenience, and general welfare.2
Land use refers to the different ways that the geographical space can be exploited or utilized. Sessional Paper No. 1 of 2017 on the National Land use policy defines Land use as the activities to which land is subjected to and is often determined by; economic returns, socio-cultural practices, ecological zones and public policies. In the context of the said policy, land use is thus defined as the economic and cultural activities practiced on the land. The following Acts of Parliament have provisions touching on matters of land use and management of land-based resources; the Physical Planning Act3, Land Control Act Cap4, Agriculture Fisheries and Food Authority Act5, Water Act6, Wildlife Conservation and Management Act Cap7, Environmental Management and Coordination Act8 and the Forest Conservation and Management Act of 2016. Uncontrolled use of land has resulted in challenges on land among them incompatibility of land uses, environmental degradation, insecurity reduced productivity, wastage of resources among others.
1 LL.B (UoN), LL.M (UoN), PhD (Groningen), Advocate of the High Court of Kenya and seasoned Registrar of Titles at the Ministry of Lands Nairobi.
2Government of Kenya, Purpose and Benefits of Planning (2017) Ministry of Lands and Physical Planning unpublished paper.
3 Physical Planning Act Cap 286
4 Land Control Act Cap (302)
5 Agriculture Fisheries and Food Authority Act No. 13 (2013)
6 Water Act NO. 43 of 2016.
7 Wildlife Conservation and Management Act Cap 376
8 Environmental Management and Coordination Act (Amendments) 2015
In addition, land use issues continue to be addressed through many uncoordinated legal and policy frameworks that have done little to unravel the many issues that affect land use management.
Development means carrying out of any works on land or making any material change in the use of any structures on the land; on the other hand, development control means the process of managing or regulating the carrying out of any works on land or making of any material change in the use of any land or structures and ensuring that operations on land conform to spatial development plans as well as policy guidelines, regulations, and standards issued by the planning authority from time to time in order to achieve a purposeful utilization of land in the interest of the general welfare of the public.9
Development control is an integral part of the planning process that ensures every development complies with land use and land management regulations outlined in any approved spatial development plans. It also ensures developments comply with physical planning standards. Development control seeks to; ensure optimal land use, to ensure the proper execution and implementation of approved physical development plans, to protect and conserve the environment and to ensure orderly and planned building development, planning, design, construction, operation, and maintenance.
Matters subjected to development control cuts across a number of development proposals which must meet the specified criteria as defined in the Physical Planning Act these includes; Building Plans; this is aimed at ensuring conformity with approved development plans, regulations, and standards in the subject area; Land Subdivision10 aims at ensuring conformity with approved development plans, regulations, and standards in the subject area; Amalgamation11 is aimed at ensuring conformity with approved development plans, regulations, and standards in the specific area; Change of Use12 ensures compatibility and compliance to the set regulations and standards and Extension of Use13 which ensures compatibility and compliance to the set regulations and standards. Extension of Lease14 ensures the extended lease conditions take into account any new development policies of the area and finally Renewal of Lease which follows the lapse of an old lease period.15 The rudimentary understanding of the procedure for development control involves
9 Physical planning Act. Cap 286 s2.
10 Subdivision refers to parceling of land into two or more portions.
11 Amalgamation refers to the combination of two or more parcels of land into one.
12 Change of use refers to; any alteration in the use, purpose or level of activity within any land, space or building that involves a material change which does not conform to the existing plans and policies.
13 Extension of use refers to the introduction of a new user in addition to the existing use within the same building or site while maintaining the dominance of the existing use. The rule of the thump is that the additional use should be compatible with the existing use and the neighborhood character.
14 Extension of lease, involves the Lessor of land extending the lease period to a lessee before expiry of the lease period following an application for the extension.
15 Renewal of lease; Involves the Lessor of land getting into a new lease agreement with the Lessee for a new lease period (and new lease conditions) following the lapse of the old lease period which is usually followed by an application for the renewal.
presenting an application for development permission by a developer to the planning authority, consideration of the application and the granting of approval, deferment or rejection of the application in the prescribed forms.
The terms defined herein above will form the subject on the appraisal of the substratum of this Chapter which is the assessment of the Kenyan Legal situation.
2. LEGAL AND POLICY FRAMEWORK.
The Statutory framework governing land use, Physical Planning and Development control includes; The Constitution of Kenya 2010, the Physical Planning Act and Rules the Urban Areas and Cities Act, the National Land Commission Act, the Environmental Management and Coordination Act among others. The policy instruments buttressing the above-mentioned statutes include Sessional Paper No. 1 of 2017 on the National Land Use Policy, Kenya Vision 2013, The National Spatial Plan and the zoning regulations.
A. Constitutional and Statutory Instruments
1. THE CONSTITUTION OF KENYA 2010
The Constitution makes environmental protection an obligation of the government and the citizens. Proper conservation and utilization of the environment and natural resources is encouraged through Article 69 (1) and (2) which obligates the State and every person to protect and conserve the environment to ensure ecologically sustainable development and use of natural resources. The Constitution encourages equitable sharing among both men and women of the accruing benefits of the sustainable exploitation, utilization, management and conservation of the environment and natural resources Article 69 (1) (a). Sustainable development refers to “development that meets the needs of the present generation without compromising the ability of future generations to meet and cater for their own needs.16 Furthermore, under Article 42 of the Constitution, the right to a clean and healthy Environment including the right to have the environment protected for the benefits of present and future generation through legislative and other measures is emphasized.
Article 60 enumerates the Principles of; A Land policy and provides the guides for the formulation of the land use and management policies. Article 66 captures, regulation of use of any land, interest in or right over land in the interest of defense, public safety, public order, public morality, public health or land use planning and it goes further to Provide the powers to the National and County governments to regulate the use of land and property through spatial planning.
16 The World Commission on Environment and development, 1987, Our Common Future, Oxford University Press, Oxford see also Environmental Management and Co-ordination Act 1999 (EMCA, 1999). Emphasis added.
2. THE URBAN AREAS AND CITIES ACT, 201117
The Act captures appointment of boards to manage cities and towns and lays proper administrative offices for the said management. This Act provides for governance and management of urban areas, cities and the governance and management of towns in the Republic of Kenya18. It is a relevant statute under the Context of Land use, and Development control, the provision of Section 37 of the Urban Areas Cities Act Provides for inter-linkages between County plans and under part (V) the Statute provides for the integrated development planning a concept that forms the basis for the preparation of environmental management plans and overall delivery of basic services including provision of water, electricity, health, telecommunications and solid waste management, it also provides for; Management of cities and municipalities.19 A cursory look at the actual state of our urban areas and cities shows that the Act has not been properly implemented, there is overwhelming evidence of poor sanitation, lack of basic social amenities, poor transit and transport infrastructure, lack of proper garbage and refuse disposal locations. As if that is not enough we recently had numerous reports on flooding of urban areas and sadly enough we witnessed incidences of buildings collapsing taking many precious lives.
3. THE NATIONAL LAND COMMISSION ACT No. 5 OF 201220
This Statute makes additional provisions on the powers of the National Land Commission (hereinafter NLC) a Constitutional Commission established Article 67, Some of the key objects of the Act is to provide for; the management and administration of land in accordance with the principles of land policy set out in, Article 60 of the Constitution of Kenya and the National Land Policy21and the functions of the Commission include; to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities; to recommend a National Land Policy to the National Government and to manage public land on behalf of the national and county governments.22
Under Sessional Paper No. 1 of 2017 on the National Land Use policy, the NLC is in charge of Monitoring and oversight in the implementation of the Land use policy.
4. PHYSICAL PLANNING ACT CAP 286
The Physical Planning Act is the key statutory instrument that addresses Physical Planning in Kenya, under the Second Schedule provides for contents of national, inter-county and county physical development plans23 which amongst other key issues must capture; Development
17 An Act of Parliament to give effect to Article 184 of the Constitution; to provide for the, classification, governance and management of urban areas and cities; to provide for the criteria of establishing urban areas, to provide for the principle of governance and participation of residents.
18Urban Areas Cities Act S31.
20 An Act of Parliament to make further provision as to the functions and powers of the National Land Commission, qualifications and procedures for appointments to the Commission; to give effect to the objects and principles of devolved government in land management and administration, and for connected purposes.
21 National land Commission Act S 3.
22 Ibid Section 5.
23 Physical Planning Act Cap 286 second schedule.
challenges, opportunities and alternative interventions; a situational analysis of the infrastructure services, housing, population and demography and the suggested action plans.
On the third schedule the Act enumerates the contents of local physical development plans which include; Spatial analysis accompanied by Physical and suitability Maps and Charts which have to focus on; Existing land uses and development24, cadastral outlay of development, Population analysis, Housing and Infrastructural analysis (which entails; Housing occupancy rates, accommodation density, housing requirements, type of residential areas and industrial locations and finally Recreation areas and other public purpose land uses among others).
A local physical plan should also capture Maps and Models such as Existing land use maps; Sieve maps of the physical constraints or thresholds to development model map indicating land use designation and distribution as well as a clear transport and communication network.
Under part C the Third schedule stipulates that local physical plan should capture the content for renewal and redevelopment plan and finally. A report on citizen participation describing meaningful citizen participation in the Planning process and expected citizen participation during project execution.
The fourth schedule to the Act deals with matters which may be dealt with underdevelopment control. Aspects of development control under the schedule include the following;
a. Change of user: factors to be considered in a change of user include; Provisions of an approved physical development Plan Probable effects on the character of the neighborhood, Current user, Area zoning regulations and Infrastructural availability and adequacy
b. Extension of users; Extension of lease considerations for the extension of the lease include, Whether the land Is required for public purpose, Whether special conditions in the lease were, adhered to, Whether the land is developed Whether the buildings on the land have been well maintained and Provisions of relevant approved physical development Plans.
c. Subdivision scheme and amalgamation proposals and the considerations to be made include;
The design of the Plan, Provisions of relevant approved physical, development Plans, Land reference number, Size and shape of the land, the location Plan, Surrender of land for public utilities.
d. Building Plans Where the development involves the erection of a building, the Planning authority considers the; The use of the building, The sitting of the building within the plot, The elevations of the building, plinth area, canopies and height of buildings, The design, shape, civic design and appearance of the building;
24 Physical planning Act Cap 286 third schedule Part A clauses (5).
Where the building plans submitted do not meet the required standard, the Planning authority shall communicate the areas of improvement to the applicant who shall amend the buildings Plans or drawings accordingly and resubmit within such a period as the Planning authority may specify. The building Plans or drawings to be submitted include in a development transaction include; Development Plan and drawings; Architectural drawings and specifications; Civil and Structural engineer’s drawings and specifications; Electrical engineer’s drawings and specifications and Mechanical and Plumbing drawings & specifications;
e. Processing of easements and way-leaves for services such as Telecommunications, Electrical power supply water and sewerage networks oil Pipeline, Fiber optic cables, Base transmission stations.
5. ENVIRONMENTAL MANAGEMENT AND COORDINATION ACT, 1999,
The Environmental Management and Coordination Act of 1999 (EMCA) was enacted to provide an appropriate legal and institutional framework for the management of the environment and for matters connected therewith and incidental thereto.
B. Policy instruments
1. NATIONAL LAND USE POLICY25
The overall goal of the; National Land use policy is to provide a legal, administrative, institutional and technological framework for optimal utilization and productivity of land-related resources in a sustainable and desirable manner at national, county and community levels.26The National Land Use Policy is a statement of intent that sets out long-term goals on land use management. It addresses issues relating directly to the use of land and its resources. It also incorporates all activities that are likely to have an impact on the use of land and its resources.27
The policy lays inculcates an implementation framework under chapter four (4) and provides for the institutional framework by making provision for establishment of a National Council for Land Use Policy to be chaired by the Head of Public Service and the rationale for its creation is to take full responsibility for coordination, sectoral integration and mobilization of resources for implementation of this Policy28; a National Technical Implementation Committee and the County
Technical Implementation Committee.
25 Sessional Paper, No. 1 of 2017 on National Land Use Policy.
26 Ibid page v
27 Ibid page 4
28 The principal functions of the Council shall be;
i. Steering organ for the implementation of the Policy;
ii. Mobilization of resources for effective performance of land use and management function;
iii. Coordination and integration of sectoral programmes for effective implementation of this Policy.
The policy also pinpoints the fact that several sectoral laws and policy frameworks will be revised to bring them into accord with the recommendation of this Policy29.
2. THE KENYA VISION 2030
Kenya’s Development Agenda is anchored on the Kenya Vision 2030, which aims at creating “a globally competitive and prosperous country with a high quality of life by 2030”. It aims to transform Kenya into “a newly industrialized, middle-income country providing a high quality of life to all its citizens in a clean and secure environment”. Vision 2030’s key goal is the attainment of a ‘nation living in a clean, secure and sustainable environment’ driven by the principles of sustainable development. It is based on the 3 pillars of political, social and economic advancement and it aims to transform the economy and achieve sustainable growth.30
One of the major foundations of Vision 2030 is known as the Social pillar: The objective of the Social Pillar is investing in the people of Kenya in order to improve the quality of life for all Kenyans by targeting human and social welfare projects and programmes, specifically: Health, Environment, Housing, and urbanization;
3. THE NATIONAL SPATIAL PLAN31
The National Spatial Plan was prepared by the National Department of Physical Planning, in the Ministry of Lands and Physical Planning within its mandate of preparing national policies on physical planning. The National Spatial Plan supports the implementation of strategic national projects specifically the flagship projects spelled out under Kenya Vision 2030 by indicating their spatial locations and providing a framework for absorbing the spatial impacts of these projects.
It provides a coordination framework for sectoral planning which has been lacking in the country and it aims to address the gap that has existed for a long time between physical and economic planning. This is expected to result in the more prudent use of the country`s scarce resources as the Plan provides a platform for prioritization of programmes and projects within the
29 These include; Agriculture Food and Fisheries Act, 2013, Survey Act, Cap 299, Environmental Management and Coordination (Amendments) Act 2015, Water Act, Wildlife Conservation and Management Act, 2013, Kenya Maritime Authority Act Cap 370, 2012, Roads Act, Climate Change Act, 2016, Physical Planning Act Cap 286, Land Act 2012, National Land Commission Act 2012, County Governments Act, 2012, Land Registration Act 2012, Urban Areas and Cities Act, 2012, Forestry Act, 2005, Protected Areas Act. The policies include; the, National Urban Development Policy, National Transportation Policy, Agriculture, Food and Fisheries
Maritime Policies, Wildlife Policies, Environmental Conservation Policies, Forestry Conservation Policies, Kenya Vision 2030
30 https://sustainabledevelopment.un.org/content/documents/985kenya.pdf p 3
31 Government of Kenya thro the MoL; National Spatial Plan, 2015-2045
implementation mechanism.32One of the major objects of the plan is to optimize utilization of land and natural resources for sustainable development.33
4. ZONING REGULATIONS
Zoning is a system of land use regulation in various counties which based on mapped zones which separate one set of land use from another. Zoning regulates building height i.e. the number of floors, the plot coverage, and ratio, similar characteristics or some combination of these. County Governments use zoning regulations as a development control system to prevent new developments from harming existing residents or businesses and to preserve the quality of a community.
Zoning classifications include; Residential zones: which covers residences and multi-family dwellings; Commercial zones: which addresses office blocks and businesses zones and finally Industrial zones: that normally applies to manufacturing shops and plants. Zoning regulations defer from county to county and town to town and as such, each county has different zoning regulations and Building Codes.
C. The institutional arrangement on Development control, Land Use and Physical Planning/hierarchy of institutions
The Constitution of Kenya 2010 apportions responsibility of planning to both National and County Governments. Under the Fourth Schedule on the distribution of functions, Part 1(21) and (32) the National Government is charged with the responsibility of formulating general principles of land planning coordination of planning by the counties, capacity building and technical assistance to the counties. On the other hand, Part 2(8) allocates the function of county planning and development to County Governments.
A. AT THE NATIONAL LEVEL
As per the Fourth schedule of part 1 Article (21 and 32), the national government is charged with the responsibility of formulating general principles of land planning and coordination of planning by counties and capacity building. In fulfillment of this mandate the national government performs the functions of; formulation of spatial planning policies, strategies and Guidelines applicable throughout the country, Preparation of National spatial plan, coordination of the preparation of regional/inter-County spatial plans, undertaking research on spatial planning matters of national importance and offering capacity building and technical support to the counties. The following are the key national institutional organs that play a major role in; land use, physical planning and development control.
32 Ibid p (i)
33 Ibid p (vii)
A. MINISTRY OF LANDS AND PHYSICAL PLANNING (MOL)
The Ministry of lands is a key entity in the physical planning, land use, and development control. Through the physical planning department, the Ministry engages in Preparation of regional and local physical development plans, Feasibility studies into matters concerning physical planning and advising on matters concerning alienation of land and the most appropriate use of land such as; Change of user, Extension of user, Extension of leases subdivision of land and amalgamation of land.34 In the executive order No.1/2016, the Ministry is charged with; National Lands Policy and Management, Physical Planning, Land use Transactions and Settlement Matters among other functions35
B. NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY (NEMA)
The National Environment Management Authority (NEMA) was established under the Environmental Management and Co-ordination Act36 (EMCA) as the principal instrument of Government for the implementation of all policies relating to the environment. It is the regulatory body of the ministry of environment and mineral resources (MEMR) and under the Ministry of Environment;37 it handles environmental coordination in Kenya. However, it is important at this point to underscore environment being a multi-sectoral phenomenon, there are several other government agencies that play a role as they manage their sectors. These include Ministry of water development through management of water resources utilization; Ministry of forestry; and Ministry of Agriculture which majorly controls farming practices to prevent soil erosion in areas with sloppy land and ensures sufficient food production and promotes the adequate production of cash crops to support the economy.38
Section 9 (i) mandates the Authority to exercise general supervision and coordination over all matters relating to the environment and to be the principal instrument of the Government of the Republic of Kenya in the implementation of all policies relating to the environment.39
NEMA has been a key player in land use, development control and environmental control, notable instances of its intervention includes; 1. The plastic ban; which made it illegal to use, import or manufacture plastic carrier bags in Kenya proclaimed under the gazette notice No. 2334 of 14th March 201740 the ban was
34Department of Physical Planning; http://lands.go.ke/department-of-physical-planning/ (accessed on 23rd August 2018).
35 Executive Order No. 1/201; Organization of the Government of the Republic of Kenya (May 2016).
36 Environmental Management and Co-ordination Act No. 8 of 1999
37 The Authority is a Semi-Autonomous Government Agency in the Ministry of Environment and Forestry.
38 Agriculture is Kenya Economy’s Backbone; Agriculture directly contributes 26% to the Gross Domestic Product of the country and accounts for more than 65% of export earnings. http://urbwise.com/2018/01/22/agriculture-kenya/45.
39 Ibid n33.
intended to reduce the plastic pollution. The Environment and Lands Court upheld the plastic ban in a petition challenging the said ban in the matter of the; Kenya Association of Manufacturers & 2 Others V Cabinet Secretary, Ministry of Environment And Natural Resources & 3 others.41 A three-judge-bench stated that the government did not violate any rights in imposing the ban. They went further to point out the lack of evidence to prove the increased cost of packaging or a health risk associated with the said ban, the judges noted that the benefits of the ban outweighs the harm caused by the ban. “The limitation of rights imposed by the impugned gazette notice was reasonable and justifiable and as such accords with the Constitution,” the judges said. They further added that although some ordinary Kenyans could suffer social and economic losses as a result of the ban, the plastic ban was for the common good of the general public and as such lawful.42
2. Continued demolition of buildings encroaching on the riparian reserves and roadsides. The rudimentary concept of a riparian zone or reserve is that it is the area beside waterways that form the connection between water and land it is also defined as the interface between lands and a river or stream.43 The word riparian is derived from Latin ripa, meaning river bank.
On the 6th of August 2018 NEMA issued a press release on; Demolition of structures on riparian reserves, the statement explained that the demolition exercise was aimed at clearing the Nairobi River and its tributaries off any illegal structures and that the said demolition was an inter-ministerial and multiagency activity under the Nairobi Regeneration Initiative44
The National Environment Management Authority conducted demolitions on a Java House outlet and Shell Fuel station in Kileleshwa, Nairobi. The demolitions came as
40 According to the gazette notice No. 2334 of 14th March 2017, all plastic carrier bags regardless of their thickness or color used as secondary packages were banned with effect from 28th August 2017.
41 Kenya Association of Manufacturers & 2 Others V Cabinet Secretary, Ministry of Environment and Natural Resources & 3 others 2017 eKLR
42 The judgment was issued in a case in which the Kenya Association of Manufacturers, importers, exporters, wholesalers and retailers together with activists Okiya Omtatah had challenged the ban on the use, manufacture as well as importation of certain types of plastic bags used for commercial and household packaging.
43 Sievers, Michael; Hale, Robin; Morrongiello, John R. (March 2017). “Do trout respond to riparian change? A meta-analysis with implications for restoration and management”. Freshwater Biology.
44 The Nairobi Regeneration Program is a joint effort between National Government and the County Government of Nairobi focuses on a set of economic and social initiatives that will improve the livelihoods of Nairobi residents. The Nairobi Regeneration team is led by Tourism CS Hon. Najib Balala and co-chaired by the Nairobi County Governor Hon. Mike Sonko. The thematic areas are led by respective Principal Secretaries and County Executives.
NEMA moved in to reclaim riparian land in Nairobi County.45It was also reported in the Local dailies that; a multi-agency taskforce comprising of NEMA, KURA and Nairobi County Government would continue bringing down illegal structures in Nairobi especially on buildings located on riparian reserves/ river valleys.46
The Authority has in the recent days been seen to work hand in hand with other authorities such as the Kenya Urban Roads Authority in the eradication of illegally established structures. This is evidenced by the fact that there have been several reports on demolition of buildings and structures in Nairobi County in recent months with kiosks built on the roadside targeted a case in hand was on the 23rd of July, were buildings in parts of Nairobi’s Kibera slums were demolished to pave way for the construction of a link road.
Some curio shops near Sarit Centre in the Westland’s area of Nairobi County were also not spared as demolished to pave way for dual-ling of Ring Road. The exercise, which was executed under tight security and supervised by the National Construction Authority, was ordered by the Kenya Urban Roads Authority (KURA). The roads agency issued a notice in 2016 for the demolition citing redesign of the two roads to reduce congestion on the route.
Several multi-million investments such as the; the iconic U-kay Centre in, Westlands and the south end mall on Langata road have also not been spared from the wrath of development control with the; Taj mall /Air gate mall on, Outering road and the oshwal centre in Westlands also being earmarked for demolition by the National Environment Management Authority and the Kenya Urban Roads Authority.
In an attempt to stop the demolition of the U-kay Centre, the proprietors filed a case against NEMA; they submitted to the court that, they had received all the relevant approvals for constructing the building founded on plans that were submitted for approval sometime in 1994. This poses an interesting polemical issue and that is; if the proprietors’ sought and obtained all relevant approvals for construction from the Nairobi County government and other appropriate authorities what went wrong? Do NEMA and other stakes holders conduct follow up to ensure compliance with issued guidelines and approvals? And without prejudice to the foregoing is there sufficient legitimate expectation derivable on approvals issued? These aspects in one way or another portray the failure and lack of proper physical planning and development control
C. NATIONAL ENVIRONMENT TRIBUNAL
The National Environment Tribunal (NET) is established under section (125) of the Environmental Management and Coordination Act (EMCA).47 Its chief function is to receive, hear
45 Demolition of Java House and shell fuel station outlets in Kileleshwa: NEMA demolishes Java coffee shop, Shell fuel station in Kileleshwa, accessed on https://www.standardmedia.co.ke/article/2001290876/java-house-shell-fuel-station-brought-down, Published Mon, August 6th 2018.
47 Environmental Management and Coordination Act (EMCA) No. 8 of 1999.
and determine appeals arising from decisions of the National Environment Management Authority (NEMA) on issuance, denial or revocation of environmental impact assessment (EIA) licenses; the licenses are statutory permission to undertake developmental transactions on a specified parcel of land.
The tribunal; Hears appeals on environmental matters48by individuals who wish to undertake developments but are denied EIA licences by NEMA or against certain conditions imposed on issued permits an illustration can be evinced in the decision of the tribunal in case of; Phenom Limited V National Environment Management Authority49where (Phenom Limited) the Appellant, appealed against the Respondent’s condition on its proposed housing development, which the Respondent conveyed by letter dated 19th October 2004. The Tribunal upheld NEMAs condition and directed that the appellant re-draws the building plan to conform to allowable ground coverage of not more than 35% of the plot and that once the satisfied that the condition above is fulfilled, NEMA would be at liberty to issue an EIA licence to the Appellant in accordance with applicable zoning and building regulations and policies.
D. LAND AND ENVIRONMENT COURT
The Land and Environment Court has also played a key role in land use physical planning and development control it is established under the Environment and Land Court Act.50 The Court has original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution relating to environment and land. It has the power to hear and determine dispute relating to environmental planning and land administration and management. The court has on several instances declined to issues order to stop the demolition of illegal developments on riparian reserves and road reserves a recent example that comes to mind is when it previously declined to give an order to stop the demolition of the U-kay Nakumatt center in Westlands.
Individuals have instituted cases seeking protection of their rights to a clean and healthy environment and ensuring compliance with land and environment laws such as in the matter of; Wanaina Kenyanjui & 2 others v Andrew Ng’ang’a51 where an injunction was issued restraining the Defendant from carrying on the business of a student hostel in Hardy Estate, Langata.
The case was premised on the grounds that the development of a student hostel on the Defendant’s land was unauthorized and illegal, as the buildings housing the student hostel had not been vetted or approved by the relevant authority. No approval had been obtained to convert the user of the suit property from the zoned residential user to the business of a student hostel, and
48 Ibid section 129(1)
49 Phenom Limited V National Environment Management Authority 2005 eKLR Tribunal Appeal Net/04/06/2005
50 Environment and Land Court act NO. 19 of 2011 s4.
51 Wanaina Kenyanjui & 2 others v Andrew Ng’ang’a 2013 eKLR
further that development of a student hostel required the sanction of the National Environment Management Authority (NEMA) and public participation of the residents of the Estate which was not done.
The above dispute was supported by the holding of the court in the case of; Ocean Freight E.A Limited v Esmaili & Another52 where the Court found the breach of the law regarding the planning of and use of land was a material consideration for granting an injunction.
B. COUNTY LEVEL
The County governments are charged with the responsibility of county planning and development under Part 11 Article 8 of the Fourth Schedule of the Constitution. In undertaking this mandate the counties are expected to perform the functions of; formulating County specific policies, strategies and Guidelines, preparation of County spatial plans and urban spatial plans, implementation of the plans, the undertaking of research on spatial planning within their area of jurisdiction and participating in the preparation of regional spatial development plans. The County Government Act, 2012 encapsulates, County planning and development under Sections 102 to 115, Provides principles of planning and development facilitation to guide planning in the Counties.
The Water Resources Authority is a state corporation established under Section 11 of the Water Act, 2016.53 It was initially established under the Water Act of 2002 as the Water Resources Management Authority (WRMA). The Authority is an Agent of the National Government responsible for regulating the management and use of water resources. The Water Act makes extensive provisions on the Authority’s role in regulating the use and management of water resources.
Under the Act, the term water resource is defined as; any lake, pond, swamp, marsh, stream, watercourse, estuary, aquifer, artesian basin or another body of flowing or standing water, whether above or below ground.54Whilst the term water is defined to include drinking water, river, stream, watercourse, reservoir, well, dam, canal, channel, lake, swamp, open drain, or underground water. Under the provision of section (5), every water resource is vested in the State, subject to any rights of user granted by or under this Act or any other written law and is held in trust for the people of Kenya.
52 Ocean Freight E.A Limited v Esmailji & Another (2004) KLR 463
53 Water Act No. 43 of 2016, the authority was operationalized vide Legal Notice No. 60 on 21st of April, 2017.
54 Water Act No. 43 of 2016 section 2.
The functions of the Authority include; formulation and enforcement of standards, procedures and Regulations for the management and use of water resources and flood mitigation; regulation, management and use of water resources; receiving water permit applications for water abstraction, water use and recharge and determine, issue, vary water permits; and enforce the conditions of those permits and to advise the Cabinet Secretary generally on the management and use of water resources.
A permit is required for purposes of; (a) Any use of water from a water resource, except As provided by section 37 of the Act (which provides the exempted uses55) (b) the drainage of any swamp or other land and (c) the discharge of a pollutant into any water resource. This is an important aspect of land use control which requires obtaining permits for the above-mentioned land use transactions. The Authority also maintains a register of permits and the register contains the details of the permit holders, the respective terms and conditions of each permit and the results of any monitoring and enforcement action taken by the Authority in respect to each permit.
The water resources agency and NEMA have on a number of instances been faulted for failing to properly perform their duties; a case in hand is the recent; Solai dam/Patel dam tragedy where At around 7.30 p.m. on 9th May 2018, a man-made dam within the vast Patel Coffee Estates located in Solai, Nakuru, broke its banks gushing out 190 million litres of water washing away settlements downstream.
The Kenya Human Rights Commission, Freedom of Information Network and Mid Rift Human Rights network released a fact-finding report on the Patel Dam tragedy on June 29.56 The report under the title, Damned Dams: Exposing Corporate and State Impunity in the Solai Tragedy57, blamed government agencies tasked with managing water resources and the environment and farm’s management for the tragedy that killed innocent residents.
Finally, the water resources agency was also on the spot over when over the period of the Solai dam tragedy, Masinga dam, and Kenya’s largest hydropower dam, overflowed after it reached its full capacity thus exposing the people downstream in Garissa and Tana River counties to grave danger.
The National Development Plan58 recognizes Kenya as a water scarce country this is because the water demand exceeds renewable freshwater sources. There are numerous disparities in urban clean water access in urban settings with informal settlements recording lower levels or limited access. The government has implemented far-reaching reforms in the Water sector within the legal
55 Such as 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.
56 Daily Nation: https://www.nation.co.ke/counties/nakuru/Damned-dams–Report-blames-State-for-Solai-tragedy/1183314-4651142-n3b004z/index.html (accessed on 23rd of August 2018).
57 Kenya Human Rights Commission Freedom of Information, Network and Mid Rift Human Rights Network; Damned Dams: Exposing Corporate and State Impunity in the Solai Tragedy
58 National Development Plan 2002-2008.
framework provided by the Water Act.59 WARMA is one of the institutional framework contemplated in the Act, for the water sector but has initially explained it has blatantly failed in properly executing its mandate.
IN LIEU OF A CONCLUSION:
There are numerous polemical issues that arise from the concepts of land use, physical planning, and development control as can be ferreted from the discussions above it would be an unforgivable heresy to claim that this chapter covers all the arising issues on the topic of discussion and provides the suggested the appropriate remedies to address the same. As such in lieu of a conclusion it is suggested that the following need is addressed pronto.
i. Allocation of land and issuance of titles should be done on the basis of approved physical development plans and approved survey plans, approved local area zoning regulations and policy guidelines all loopholes allowing corruption issuance of the same should be tightened.
ii. The pre-emptive doctrine on an extension of a lease and or renewal should be curtailed and the granting of a further or second lease should be contingent upon, the satisfactory utilization of the first lease. This will help eradicate land hoarding or absentee landowners.
iii. All lands should be managed according to their actual suitability and local and that land use plans should be required in the implementation of proper land use management.
iv. Proper approaches to Physical Planning, Land Use, and Developmental Control should be developed Improving Development Control Process and finally,
v. Capacity building of land and environment agencies
59 Kenya Water Act 2016
A. BOOKS, REPORTS, AND ARTICLES
i. Damned Dams: Exposing Corporate and State Impunity in the Solai Tragedy; Kenya Human Rights Commission Freedom of Information, Network, and Mid Rift Human Rights Network;
ii. “Do trout respond to riparian change? A meta-analysis with implications for restoration and management”. Sievers, Michael; Hale, Robin; Morrongiello, John R. (March 2017).
iii. National Development Plan 2002-2008.
iv. Purpose and Benefits of Planning (2017) Government of Kenya, through the Ministry of Lands and Physical Planning unpublished paper.
v. The Nairobi Regeneration Program 2018
B. STATUTES AND GAZETTE NOTICES
i. Environment and Land Court Act No. 19 of 2011
ii. Environmental Management and Coordination Act (Amendments) 2015.
iii. Gazette notice No. 2334 of 14th March 2017,
iv. National Land Commission Act No. 5 of 2012
v. Physical Planning Act Cap 286
vi. Land Control Act Cap (302)
vii. Water Act No. 43 of 2016,
viii. Wildlife Conservation and Management Act Cap 376
C. POLICIES, ACTION PLANS, AND EXECUTIVE ORDERS
i. Executive Order No. 1/2016; Organization of the Government of the Republic of Kenya (May 2016).
ii. National Spatial Plan, 2015-2045
iii. Sessional Paper, No. 1 of 2017 on National Land Use Policy.
i. Kenya Association of Manufacturers & 2 Others V Cabinet Secretary, Ministry of Environment and Natural Resources & 3 others 2017 Eklr
ii. Phenom Limited V National Environment Management Authority 2005 eKLR Tribunal Appeal Net/04/06/2005
iii. Wanaina Kenyanjui & 2 others v Andrew Ng’ang’a 2013 Eklr
iv. Ocean Freight E.A Limited v Esmailji & Another (2004) KLR 463
i. Daily Nation: https://www.nation.co.ke/counties/nakuru/Damned-dams–Report-blames-State-for-Solai-tragedy/1183314-4651142-n3b004z/index.html (accessed on 23rd of August 2018).
ii. Standard Media: https://www.standardmedia.co.ke/article/2001290876/java-house-shell-fuel-station-brought-down, Published Mon,
iii. Ministry of Lands and Physical Planning; http://lands.go.ke/department-of-physical-planning/ (accessed on 23rd August 2018).August 6th, 2018.