KENYA Law and Practice Contributed by: Anne Kinyanjui and Bonface Abuya, DLA Piper Africa, Kenya (IKM Advocates)
Appeal A developer may appeal a county government’s deci - sion not to grant development permission before the National or County Liaison Committee (as applicable). The developer may lodge a further appeal against the decision of a County Liaison Committee to the Nation - al Liaison Committee. Thereafter, an appeal against a decision of the National Liaison Committee may be made to the ELC. If NEMA declines to grant the EIA licence or revokes it, the developer may appeal such decision at the National Environment Tribunal (NET) within 60 days. A further appeal may be made to the ELC against the decision of the NET. If the LCB declines to consent to the development of agricultural land, the developer may appeal to the Provincial Land Control Appeals Board within 30 days of the decision being delivered. A further appeal may be made to the Central Land Control Appeals Board. If the developer is not successful, they can consider effecting a change of use of the land to avoid the need to obtain the LCB consent for the development. If the NCA declines to register a construction pro - ject, the developer may appeal to the Appeals Board established under the NCA Act. Enforcement Section 72 of the Physical Planning Act enables the County Executive Committee member for physical and land use planning to issue an enforcement notice to an owner, occupier, agent or developer of land (the “recipient”) if a developer commences development without a development permit, or if any conditions of the development permit are not complied with. The enforcement notice will prescribe the remedial action to be taken by the recipient, who will face imprison - ment and/or be subject to fines if they do not comply with the notice. Section 108 of the EMCA enables NEMA to issue envi - ronmental restoration orders instructing the recipient to refrain from causing harm to the environment and/ or prescribing remedial action to restore the environ - ment to its original state. The order may also impose fines against persons contravening environmental
with zoning laws. The permit may also prescribe con - ditions for undertaking the development. It is rare for the permit to prescribe requirements on the appear - ance of the development or method of construction. However, the methods and standards of construction are regulated under the NCA Act. The Physical Planning Act requires the developer to apply to the relevant county government for develop - ment permission. Upon receipt, the county govern - ment circulates the application to the relevant state agencies, including the Director of Surveys, the NLC and NEMA, for their comments. The state agencies may object to the issuance of the development per - mit if the development does not comply with the law. The county government also publishes a notice in the Kenya Gazette and newspapers circulated nation - wide, inviting public participation in the proposed development. After considering the comments of the state agencies and the general public, the county government may reject the application or issue the development permit. In addition, the following approvals are required, among others. • The developer must conduct an environment impact assessment (EIA) of the project and apply to NEMA for an EIA licence. NEMA is required to consult with the relevant state agencies and allow for public participation before the EIA licence is issued. • The project must be registered with the NCA. • LCB consent is required if the land is agricultural. • A Water Resources Authority permit is required if a borehole is to be drilled. • The consent of the Kenya Railway Authority is required if the development is adjacent to a railway line. • The consent of the Kenya Forest Service is required if the development may affect conserva - tion areas or wildlife. • The consent of the Kenya Civil Aviation Authority is required if the development may affect the airspace in any way.
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