KENYA Law and Practice Contributed by: Walid Khan, Ruth Wangui Rukwaro and Christina Wanjiku Wood, Africa Law Partners
robust stabilisation provisions and dispute resolution clauses. In general, successful natural resource projects in Kenya rely on careful structuring of licensing, local ownership, beneficiation requirements, environmental protection and social involvement, with some flexibil- ity to contend with regulatory and political risks. 8.8 Environmental, Health and Safety Laws Environmental regulation is primarily covered by the Environmental Management and Coordination Act (EMCA), which makes provision for the National Envi- ronment Management Authority (NEMA) to function as the principal regulator. Developers must acquire EIA licences before commencing a project, and envi- ronmental audits are required when operating. Sec- toral regulation, as embodied in the Water Act, the Mining Act and the Petroleum Act, imposes further requirements on waste management, emissions and site rehabilitation by projects. Pursuant to recent case law from the Environment and Land Court in Kenya, a climate impact assessment must be conducted and then considered by NEMA prior to issuance of an EIA licence. Health and safety concerns fall within the Occu- pational Safety and Health Act (OSHA), which is enforced by the Directorate of Occupational Safety and Health Services (DOSHS). It is the responsibility of the employers to: • maintain safe working conditions; • provide protective equipment;
Where work involves building or heavy industries, adherence to building codes and industry sector safety standards is strictly regulated. Consultation and public participation is a requirement under the Constitution that calls for public participa- tion in issues affecting communities. Laws such as the Land Act, the Community Land Act, and EMCA also call for consultations, especially where develop- ment activities affect land rights, resettlement or use of natural resources. In the extractive industry, the Petroleum Act and Mining Act require that companies enter community development agreements, revenue sharing agreements and grievance mechanisms with host communities. County governments have also a watchdog role, given their constitutional mandate in land use planning and local development. Collectively, these regulations guarantee that projects are responsibly designed, with oversight by NEMA, DOSHS, county governments and affected line min- istries. Non-compliance causes delays in approval, attracts sanctions or triggers legal action, requiring early engagement with regulators and communities.
• conduct regular examinations; and • document workplace accidents.
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