WATER AND ENVIRONMENTAL LAW NOTES NOTES

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. Not 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 p

1. WRE 2334: WATER AND ENVIRONMENTAL LAW BY JOHN WAWERU

2. Topic 1 BASIC PRINCIPLES OF LAW

3. Introduction This topic is intended to equip the trainee with knowledge, skills and attitudes required for monitoring surface and ground water works and instituting cases in a court of law.

4. Objectives At the end of this course, the trainee should be able to Describe the importance of easement Explain the need for licensing water supply contractors and engineers by water board Assess the monitoring of pollution sources. Demonstrate precautionary legal measures while entering other persons land. Explain the institution of criminal cases in a court of law.  

5. Topic content Definition of terms Plaintiff- refers to the person who sustains injury or suffers damage as the result of tortious conduct. Defendant it refers to the person who is responsible for inflicting the injury and incurs liability for the damage. Law The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. Legislation refers to law that has been promulgated or enacted by legislative arm. Legislation can be used to regulate, authorize, provide funds, sanction, prescribe, grant, declare, restrict

6. Purpose of law to maintain law and order in the society to establish a harmonious relationship between people in the society to satisfy the need of the people to achieve justice in the society to guide on the operation of a country

7. 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.

8. Cont ….. 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

9. Cont ….. 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.

10. 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 Land and environment is contained in chapter 5 of the constitution

11. Cont … 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

12. Cont …. 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.

13. 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.

14. 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.

15. Cont …. 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 .

16. Cont ….. Weaknesses of African customary Law 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. Not absolute. It changes from time to time and the judge has to ascertain the customs in place.

17. Cont …… 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.

18. 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

19. Cont ….. g) International conventions international convention refers to multilateral treaty or the instrument negotiated with under the auspice of international organization such as the United Nation convention on the law of the sea of 1982.

20. Classes of law There are two classes of law i.e. Criminal law Civil law

21. Cont … a) 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

22. Cont …. 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.

23. 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.

24. 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

25. 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.

26. Elements of negligence The defendant owed the plaintiff a duty of care There has been a breach of that legal care The plaintiff has suffered injury to his or her personal property

27. Objectives of the law of tort seeks to compensate victims for injuries suffered by the culpable action or an action of others Seeks to shift the cost of such injuries to the person or persons who are legally responsible for inflicting them. Seeks to discourage injurious, careless or risky behavior in the future. Seeks to vindicate legal rights and interests that have been compromised or diminished.

28. 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

29. Types of 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.

30. AGENCY IN TORT Agency Refers to a person engaging another to undertake a task on his behalf. Agent refers to a person employed to do any act for another. Principal refers to a person or entity that has the authority and legal rights to control an agent. Joint action it is where two or more people combine in the commission of an act which turns out to be a tort. Vicarious liability refers to a situation where an employee commits a tort in the course of a duty assigned by the employer and may be jointly held liable in tort. In law of tort the principal is held liable for agents act of omission, where the agent has been acting for the principal in the normal course of his/ her business or upon instructions of the principal.

31. Liability of the principal When a plaintiff alleges that agency relationship exists between the person who caused the injury and the principal. The principal may be determined to be bound by the acts of the agent based upon principals of actual authority or apparent authority. In actual authority the employer or agent was acting within the actual scope of the authority granted to that agent/employee by the principal. Apparent authority; Although actual authority may not have been g

32. Cont … The principal placed the agent/ employee in such a situation that an ordinary person farmiliar with the particular type of business or activity involved could be justified in assuming that the agent had the authority to act on behalf of the principal. The plaintiff in fact assumed that the agent had the authority to act on behalf of the principal. The plaintiff was justified in assuming that the agent had the authority to act on behalf of the principal. In general, a principal is subject to direct liability and vicarious liability.

33. Duties of an agent Acts on behalf of the principal. Acts within the powers delegated by the principal. Discharge his or her duties with appropriate care and diligence. Avoids conflicts between his or her personal interests. Not to accrue any material benefit from a third party in connection with transactions conducted or through his or her position as the agent. To comply with all lawful instructions received from the principal and the persons designated by principal concerning agents action on behalf of the principal. To act reasonably and to refrain from conduct that is likely to damage the principals’ enterprise.

34. 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 rights or privileges under the law.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. Defenses 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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

48. Defamation Defamation refers to an action damaging the good reputation of someone Essential to defamation The statement must refer to the claimant The statement must be defamatory The statement must be published

49. Divisions/ types of defamation Slander it refers to oral defamation or damaging someone reputation through the word of mouth. Libel it refers to written defamation or a published false statement that is damaging to a persons reputation.

50. TOPIC 3: HISTORY OF WATER LAW IN KENYA Doctrines in water resource management 1. Riparian right doctrine 2. Water right doctrine 3. Prior appropriation right doctrine

51. Cont ……. 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.

52. Cont … 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.

53. Cont …. 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 .

54. Cont ……. 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

55. Cont …. Water right doctrine. Right obtained from application for the water permit Merit- Equitable distribution of water Demerit- time consuming

56. Generations of water law in Kenya and other related laws Crown land ordinance Water ordinance of 1929 Water act CAP 372 Water act 2002 Water act 2016

57. Generations of water law in Kenya and other related laws In the past the laws relating to management of water resources and provision of water supply were addressed by the Crown Lands Ordinance and later Water Ordinances (1929) These laws were repealed by the formation of Water act CAP 372 of the laws of Kenya. The Kenya water sector underwent far reaching reforms through the water act 2002 . Previously in water act cap 372 water service provision had been the responsibility of a single National Water Conservation and Pipeline Corporation (NWCPC) as well as a few local utilities

58. Cont … . After the passage of water act 2002 water service provision was gradually decentralized to117 water service providers (WSPs). These were linked to eight 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 was in charge of policies for water supply and ministry of public health and sanitation was in charge of policies for sanitation. The water act 2002 has since been repealed by the new water act 2016 to be in line with the constitution of 2010 and devolution of the water sector. The passage of Kenya’s 2010 constitution has had a wide set of implications for the water sector. Primarily

59. The constitution acknowledges access to clean and safe water as a basic human right and assigns the responsibility for water supply and sanitation service provision to 47 newly established counties. The purpose of the 2016 water act is to align the water sector with the constitution primary objective of devolution. The act recognizes that water related functions are a shared responsibility between the national government and the county government. It also gives priority to use of abstracted water for domestic purposes over irrigation and other uses. Other key provisions in the constitution that touch upon water include: Affirmative actions to ensure water for marginalized groups; The responsibility of the national government for management of the use of international waters and water resources and definition of national versus county public works.

60. WATER LAW ADMINISTRATION    

61. 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 interventions during drought; and (f) Advise the Cabinet Secretary on any matter concerning national public water works for water storage and flood control .

62. WATER SECTOR TRUST FUND (WSTF The objective of the Fund is to provide grants to counties, in addition 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.

63. WATER TRIBUNAL (WT) 1. The Tribunal 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 the Tribunal 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.

64. 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;

65. Cont …… (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; (j) 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. k) Advise the Cabinet Secretary on any matter in connection with water services and (l) Make recommendations on how to provide basic water services to marginalized areas

66. WATER WORKS DEVELOPMENT AGENCIES (WWDAS) 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.  

67. 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 be conferred on it by this Act or any other Act.

68. POWERS AND FUNCTIONS OF WATER RESOURCES AUTHORITY (WRA) 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;

69. Cont ……. 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.

70. POWERS AND FUNCTIONS OF BASIN WATER RESOURCE COMMITTEE (BWRCs) 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;

71. Cont ….. (e) Collection of data, analyzing and managing the information system on water resources; (f) Re view 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.

72. Cont …… Kenya’s drainage basins include The Lake Victoria basin Rift valley basin Athi river basin Tana River basin Ewaso ngiro river basin

73. 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.

74. TOPIC 4: WATER RESOURCES MANAGEMENT STRATEGY The National Water Resource management strategy provides a clear, accountable and transparent road map for assessing, maintaining, enhancing, developing and managing the limited available, renewable, fresh water resources using an integrated approach and on a sustainable basis .

75. Cont.. The main goal of water resource management strategy is to ensure sustainable access to safe water and basic sanitation to all Kenyans by the year 2030. As population increases water resources decline both in quality and quantity

76. Cont ….. Some of the reasons for decline are Increasing population Catchment degradation Climate change and Pollution

77. Cont ….. To avert these problems there is need to enhance conservation of water resources and promote measures that will improve availability of good quality water and specific strategies have to be put in place. One of the strategy is through formulation of water sector institutions and decentralization of roles and responsibilities of water services and water resource management .

78. Strategic objectives and strategies 1. To improve water resource assessment and develop systems for information dissemination . Assessment of water resources is essential in establishing the status of the resource in terms of quality, quantity and use to ensure equitable sharing and balance between demand and supply. To realize these the following objectives have been developed .

79. Cont …. Classify water resources in accordance with type and location for effective and sustainable management of the resource. Three broad classes namely commercial, livelihood, and environmental have been identified. These ensures that water allocation is undertaken equitably in accordance with demand areas. Develop a functioning system for consistent water resource data acquisition, analysis and archiving.

80. Cont …. Operationalize water resource information systems for planning water resources development and policy formulation. Operationalize the criteria for reserve water determination to ensure availability of water for basic human needs and environment Build capacity through training, research and technology transfer .

81. Cont …. 2. To strengthen roles of gender and stakeholder participation in water resources management. This can be achieved through Encouraging participation of women and other disadvantaged groups in water resource management Promote a favorable environment and create awareness for active participation of stakeholders and other interest group in water resource management .

82. Cont …. 3. To promote the functioning of integrated approaches to water resources and catchment management and livelihood enhancement. 4. To create mechanisms for coordination of measures that enhance the availability and access of water resources of suitable quality, quantity where and when it is needed.

83. Cont ….. 5. To strengthen the systems that will promote the sharing of data and information on water use and demand. 6. Develop mechanisms for implementing disaster management strategies that is floods, landslides, drought and pollution. 7.Promote the implementation of transboundary water resources use.

84. Catchment areas In accordance with the national water resources management strategy, the Authority (WRA) may by notice published in the Gazette designate a defined area from which rainwater flows into a watercourse to be a catchment area.

85. Six catchment areas/regions/ basins in Kenya

86. Catchment management strategy (1) Following public consultation, the Authority shall formulate a catchment management strategy for the management, use, development, conservation, protection and control of water resource within each catchment area at regional level. (2) A catchment management strategy shall— (a) Take into account the class of water resource and resource quality objectives for the water; (b) Be consistent with the national water resources strategy;

87. Cont ……… (c) Prescribe the principles, objectives, procedures and institutional arrangements of the authority for the management, use, development, conservation and control of water resources within each catchment area; (d) Contain water allocation plans which set out principles for allocating water; and (e) Provide mechanisms and facilities for enabling the public and communities to participate in managing the water resources within each catchment area.

88. Cont ……. 3 . The catchment management strategy shall encourage and facilitate the establishment and operation of water resources users associations as for conflict resolution and co-operative management of water resources in catchment areas.

89. Protected areas (1) When the Authority is satisfied that special measures are necessary for the protection of a catchment area. It may with the approval of the cabinet secretary declare an area to be a protected area. (2) The Authority may regulate or prohibit conduct or activities, in a protected area to impose, regulate or prohibit for the protection of the area and its water

90. National monitoring of and information on water resources management (1) The national water resources management strategy shall provide for national monitoring and information systems on water resources. (2) The systems shall provide for— (a) The collection and management of data and information regarding water resources and their management; and (b) Procedures for gathering data and the analysis and dissemination of information on water resources.

91. Cont …… Consistent acquisition of data for both surface and ground water is a critical requirement for effective management of water resources. So far strategic monitoring stations of national, and regional have been identified through the catchment management strategies and about 65% of these stations are operational ..

92. Ground water conservation areas Ground water is increasingly becoming a major source of water supply both in urban and rural areas this is because of rapid decrease in quality nd quantity of surface water (1) Where the Authority is satisfied that, in any area, special measures for the conservation of groundwater are necessary for the public interest. (a) For the protection of public water supplies; or (b) For the protection of water supplies used for industry, or other private purposes, it may, following public consultation declare the area to be a ground water conservation area.

93. Cont …. (2) The Authority may regulate or prohibit conduct or activities, in relation to a ground water conservation area for the protection of the area and its ground water.

94. Environmental Impact Assessment /EIA An environmental impact assessment refers to a formal study survey that is undertaken before the onset of a project to determine the positives as well as the adverse impact of a project and identify appropriate mitigation measures for the adverse impacts. (1) The proponent of a project, shall before, commencing or carrying out submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.

95. Cont …. (2) Environmental impact assessment studies and reports required under this Act shall be conducted or prepared respectively by individual experts or a firm of experts authorized in that behalf by the Authority.

96. Environmental Impact Licence The Authority may, after being satisfied as to the adequacy of an environmental impact assessment study, evaluation or review report, issue an environmental impact assessment licence on such terms and conditions as may be appropriate and necessary to facilitate sustainable development and sound environmental management.

97. REGULATION OF WATER RIGHTS AND WORKS What is a water permit ? A water permit is a legal document issued by the WRA to individuals to access and use water resources in a specific way. Permit required A permit is required for any of the following purposes— Any use of water from a water resource involving the employment of works The drainage of any swamp or other land The discharge of a pollutant into any water resource. Permit not required For abstraction/ use of water without employment of works Abstraction of water from a spring which is entirely on your land and does not naturally discharge into a watercourse. For storage of water in a reservoir constructed for such purpose.

98. 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

99. Procedure for application of a water permit An application for a permit shall be made to the Authority at the applicable basin area. This shall be made by completing and lodging the form prescribed by the Authority, together with the prescribed fee. The application shall be determined within six months of receiving an application, which meets the requirements of the Authority. 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

100. Cont ….. 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. 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. 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 applicant.

101. Water license 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.

102. Cont ….. 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. 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. The Regulatory Board shall issue a licence if the applicant meets the licensing requirements

103. Revoking / Cancellation of a license The Regulatory Board may, revoke the license of a water services provider on any of the following grounds: If it is shown to the satisfaction of the Regulatory Board that the license was obtained by mistake, fraud. The water services provider has for any reason ceased to meet the criteria for licensing. 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; The water services provider becomes insolvent, or is adjudged bankrupt; or The water services provider has failed to comply with any conditions for licensing.

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

105. Procedure for obtaining an easement Operator serves the land owner with a written notice, a copy of the notice is submitted to WRA The land h older 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 WRA WRA issues easement

106. Entry on to Land Entry by water permit holder or licensee for survey and preliminary investigation (1) A permit holder wishing to enter on to the land of another person, if his proposal is opposed by the other person, May (a) Submit in the manner prescribed ( i ) A general description of his proposal; (ii) A schedule of lands which may be affected by the construction and operation of any works to be undertaken (iii) The names and addresses of the affected landholders; and (b) Upon payment of the prescribed fee, obtain permission from the authority to enter on to the land concerned to carry out any necessary proposed works. The Authority may prescribe a time limit within which such investigation shall be completed. The Authority must notify each landholder concerned that application to enter their land has been made under this section.

107. Entry by Authority for monitoring of water resource An employee or agent of the Authority appointed by the Authority for the purpose may without warrant enter on to any land for the purpose of (a) Conserving or regulating the water resource, or preserving it (b) Removing any obstruction or for clearing and deepening, the bed. (c) Preventing the excessive or illegal diversion, waste or pollution of the water resource or interference with the water resource bed.

108. Entry by licensee An employee or agent of a licensee authorized by the licensee may without warrant enter on to any land and inspect any source of water supply with the approval of the Regulatory Board, for the purpose of: (a) Preserving the water from pollution or protecting the bed over which it lies or flows; or (b) Removing any obstruction from, or for clearing and deepening, the bed; or (c) Preventing the excessive or illegal diversion, waste or pollution of the water or interference with any such bed.

109. cont ,… An employee or agent of a licensee authorized by the licensee may enter on to any premises in the area within the jurisdiction of the licensee to (a) Ascertain whether there is or has been any contravention of regulations; (b) If there is any breach of regulations on tariffs and payment to cut off supplies for non-payment; or (c) If there is any breach of regulations to prevent water degradation Ascertain whether there are circumstances that would make the licensee to take appropriate to prevent degradation; or Execute and maintain water works or take other action.

110. Penalties for offenses Offences relating to Environmental Impact Assessment Any person who fails to submit a project report or prepare an environmental impact assessment report Fraudulently makes false statements in an EIA report commits an offence and is liable on conviction to imprisonment for a term not exceeding twenty four months or to a fine of not more than two million shillings or to both such imprisonment and fine.

111. Offences relating to hazardous wastes, materials, chemicals and radioactive substances Any Person who Imports any hazardous waste without licences ; Knowingly mislabels waste , pesticide, chemical, toxic substance or radioactive matter; Fails to manage any chemical or radioactive substances. Aids in illegal trafficking of hazardous waste, chemicals, toxic substances and pesticides or hazardous substances;

112. Cont … Disposes any chemicals or hazardous waste within Kenya contrary to EMCA regulations; Withholds information or provides false information about the management of hazardous wastes, chemicals or radioactive substances, commits an offence and shall, on conviction, be liable to a fine of not less than one million shillings, or to imprisonment for a term of not less than two years, or to both.

113. Offences relating to pollution Discharge of dangerous materials, substances, oil, oil mixtures into land, water, air, or aquatic environment contrary to the provisions of EMCA. Pollutes the environment Discharges any pollutant into the environment

114. Penalties relating to pollution Fine not exceeding five hundred thousand shillings. Pay the full cost of cleaning up the polluted environment and of removing the pollution; Clean up the polluted environment and remove the effects of pollution to the satisfaction of the Authority. The court may direct the polluter to meet the cost of the pollution to any third parties through adequate compensation or restoration

115. Offences relating to Environmental restoration orders, easements, and conservation orders any person who— a) Fails, neglects or refuses to comply with an environmental restoration order comply with an environmental easement comply with an environmental conservation order commits an offence and shall on conviction, be liable to imprisonment for a term not exceeding twelve months, or to a fine not exceeding five hundred thousand shillings, or to both.