Kwale County Air Pollution Noise Pollution and Nuisances Act, Kenya 2016.pdf

SPECIAL ISSUE

Kwale County Gazette Supplement No. 19 (Acts No. 10)

REPUBLIC OF KENYA

KWALE COUNTY GAZETTE
SUPPLEMENT

ACTS, 2016

NAIROBI, 10th March, 2017

CONTENT

Act—
PAGE

The Kwale County Air Pollution, Noise Pollution and Nuisances Act, 2016 1

PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI


THE KWALE COUNTY AIR POLLUTION, NOISE POLLUTION
AND NUISANCES ACT, 2016

No. 10 of 2016

Date of Assent: 16th May, 2016

Date of Commencement: 30th May, 2016

ARRANGEMENT OF SECTIONS

Clauses

PART I—PRELIMINARY

1—Short Title.

2—Interpretation.

3—Objectives.

4—Application.

PART II—ADMINISTRATIVE PROVISIONS

5—Administration of this Act.

6—Functions and Powers of the Department.

PART III—AIR POLLUTION

7—Interpretation of this Part.

8—Abatement of Air Pollution.

9—Permitted Operations.

10—Causing Air Pollution contrary to license.

11—Liaison with lead agencies.

12—Order of Inspection.

13—Powers to refuse to grant or renew/cancel licenses.

14—Responsibility of owner or operator.

15—Smoking in Public places.

16—Smoking in public vessels.

17—Display of signs in non-smoking areas.

18—Owner to ensure no smoking.

19—Public awareness campaigns.

PART IV—NOISE POLLUTION

20—Interpretation of this Part.

21—Regulation of Noise.


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No.10 Kwale County Air Pollution, Noise Pollution and Nuisances 2016

22—Special Places.

23—Application for license.

24—License fees.

25—Regulations on Noise pollution.

PART V—NUISANCES

26—County Executive Committee Member powers regarding nuisances.

27—Nuisance and impounding of animals.

28—Protected area.

29—Offences on Nuisances.

PART VI—GENERAL PROVISIONS

30—Obstruction of Authorized Officers.

31 —General Penalty.

32—Regulations.


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THE KWALE COUNTY AIR POLLUTION, NOISE POLLUTION,
AND NUISANCES ACT, 2016

AN ACT of the County Assembly of Kwale to provide for the
regulation and management of air pollution, noise pollution and
other nuisances and for connected purposes.

ENACTED by the County Assembly of Kwale as follows—

PART I—PRELIMINARY

Short Title

1. This Act may be cited as the Air Pollution, Noise Pollution and
Nuisances Act, 2016.

Interpretation

2. In this Act —

"air pollution" means any change in the composition of air caused by
air pollutants;

"air pollutant" means any —

(a) fume, smoke, particulate matter, vapor, gas, odorous substance
or any combination thereof; or

(b) any other substance or matter whether physical, chemical,
biological, or radioactive, including source material, special
nuclear material, and by-product materials, which is emitted into
or otherwise enters the atmosphere from any object or activity
and causes, or, if unabated, may cause air pollution, but does not
include water vapor, steam condensate or any other emission
exempted under this Act;

"ambient air" means the atmosphere surrounding the earth and does
not include the atmosphere within a structure or within any underground
space;

"authorized officer" means any person authorized by the County
Executive Committee Member to perform the functions of an authorized
officer under this Act;

"controlled facility" means a facility which in its day to day
operations emits fumes, smoke or gases in such quantities as to be a
danger or nuisance to persons working or residing within the facility's
vicinity;

"County Executive Committee Member" means the County
Executive Committee Member responsible for matters relating to the
environment;


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"department" means department responsible for matters relating to
environment;

"protected area" means an area declared by the County Executive
Committee Member to be a protected area with regard to grazing of
animals under section 28;

"public place" means any square, building, park, recreation ground or
open space which:—

(a) is vested in the county;

(b) the public has the right to use; or

(c) is shown on a general plan of the county filed in the ministry of
lands registry that has been provided for or reserved for the use
of the public in such county.

"special places" means an area declared by the County Executive
Committee Member to be a special area with regard to regulation of noise
levels under section 22 of this Act; and

"vehicle" means any device driven by mechanical, power on land or
water, and includes any craft or aircraft, but does not include a wheeled
chair used solely for the conveyance of a child or invalid.

Objectives

3. The objectives of this Act are to provide for the prevention,
control and abatement of—

(a) air pollution to ensure clean and healthy ambient air;

(b) noise pollution;

(c) waste and disease causing pests, and ensure a clean healthy
environment.

Application

4. The provisions of this Act shall be in addition to other
requirements imposed by or under the Environmental Management and
Coordination Act, 1999 (No. 8 of 1999) or any other written law.

PART II—ADMINISTRATIVE PROVISIONS

Administration of this Act

5. (1) This Act shall be administered by the Department as defined
in this Act.

(2) The County Executive Committee Member shall by notification
in the County Gazette or public Notice appoint such number of officers to
be authorized officers for the purposes of this Act as may be necessary.


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Functions and Powers of the Department

6. (1) It is the responsibility of the Department to implement the
objectives of this Act.

(2) To this end the County Executive Committee member has
powers to —

(a) create awareness with the public on the benefits of a clean
environment;

(b) issue, suspend or revoke licenses as each case may warrant;

(c) prevent and control nuisances, pests and insects; and

(d) control domestic animals and impound or destroy them where
necessary.

PART III—AIR POLLUTION

Interpretation of this part

7. In this Part;—

"public place" means any indoor, enclosed or partially enclosed area
which is open to the public or any part of the public and includes a
workplace and a public conveyance as well as the areas within five meters
of any doorways or entrances of the public place, workplace or
conveyance;

"public vessel" means a public service vehicle, train, aircraft or any
other means of public transport domestically or internationally, whether
publicly or privately owned or operated;

"smoking" means inhaling or exhaling the smoke of any tobacco
product and includes the holding of, or control over any ignited tobacco
product or device containing an ignited tobacco product; and

"tobacco product" means a product composed, in whole or in part, of
tobacco, including tobacco leaves and any extract of tobacco leaves
intended for use by smoking, inhalation, chewing, sniffing or sucking and
includes cigarette papers, tubes, and filters.

Abatement of Air Pollution

8. The Department is in addition to the responsibilities imposed
under section 6 also undertake the —

(a) promotion of alternative cooking technologies that are
nonpolluting;

(b) development of well ventilated buildings;

(c) regulation of smoking in public places; and

(d) promotion of tree planting and expansion of forest cover.


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Permitted Operations

9. The following operations shall be permissible under this Act
provided that they are not used for the disposal of refuse—

(a) back-burning to control or suppress wildfires;

(b) firefighting rehearsals or drills conducted by fire service
agencies;

(c) traditional and cultural burning of savanna grasslands;

(d) burning for purposes of public health protection; and

(e) emissions of air pollutants from all stationary and mobile
sources as set out under this Act.

Causing Air Pollution contrary to license an Offence

10. No person shall:—

(a) act in a way that directly or indirectly causes, or is likely to
cause immediate or subsequent air pollution;

(b) or emit any liquid, solid or gaseous substance or deposit any
such substance;

contrary to the license issued under this Act or other relevant
law.

Department to liaise with lead Agencies

11. (1) The Department shall liaise with relevant lead agencies, from
time to time regarding-

(a) methods of abating and regulating air pollution;

(b) determining protected areas and special areas;

(c) clean up of any air pollution where necessary; and

(d) declaring any area exempted from the provisions of this Act.

Executive Committee Member to order inspection

12. (1) The County Executive Committee Member or his/her
representative may, to ensure the provisions of this Act are being
observed, in consultation with the relevant agencies agency, at any time
order the inspection—

(a) of a vehicle releasing visible exhaust emissions;

(b) any waste incinerator; and

(c) of fuel burning equipment.


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Powers to refuse to grant or renew licenses and to cancel licenses

13. (1) The County Executive Committee Member may refuse to
grant or renew a license or cancel a license, with respect to any license
relating to —

(a) the use of premises as a theatre, music hall, concert room or
other place of amusement, or as a restaurant or eating house;

(b) for the carrying on of any work or trade;

on grounds that—

(i) the method adopted or proposed to be adopted by the
applicant for preventing noxious or offensive vapors, gases
or smells arising from such work or trade are not efficient.

(ii) the granting or renewal of such license would be calculated
to cause nuisance or annoyance to persons residing in the
neighborhood.

(2) The County Executive Committee Member may cancel any
license granted by it on any such grounds as it may by law specify and, in
addition, on any of the following grounds, whether specified in such law
or not—

(a) with respect to any license, that it is contrary to the public
interest for such license to remain in force; and

(b) additionally, with respect to any license specified in subsection
(1) (b)—

(i) that the premises to which the license relates or any
adjacent premises owned or occupied by the holder of the
license are frequented by persons of bad character;

(ii) that the continuation of such license in force would be
calculated to cause nuisance or annoyance to persons
residing in the neighborhood; and

(c) with respect to any license for the carrying on of any work or
trade declared to be an offensive trade—

(i) that the premises used by the holder of the license have
become unsuitable for the purpose;

(ii) that the methods adopted by the applicant for preventing
noxious or offensive vapors, gases or smells arising from
the work or trade have become ineffective.


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Responsibility of owner or operator

14. (1) The County Executive Committee Member may, after
consultation with the relevant agencies and the public, declare a facility to
be a controlled facility for purposes of this Act.

(2) Every owner or operator of a controlled facility shall ensure that
emissions from his facility does not cause air pollution in any territory
outside the jurisdiction of the county, in excess of the relevant ambient air
quality levels prescribed.

Smoking in Public places

15. (1)No person shall smoke a tobacco product or hold a lighted
tobacco product in an enclosed indoor area of a public place

(2) Notwithstanding the provisions of sub-section (1), the
Department may by notice in the Gazette prohibit or restrict smoking in a
specified outdoor public place where persons are likely to congregate
within close proximity to one another or where smoking may pose a fire or
other hazard;

(3) Any person who contravenes any of the provisions of this
section shall be guilty of an offence.

Smoking in Public vessels

16. (1) No person shall smoke a tobacco product or hold a lighted
tobacco product in a public vessel.

(2) Any person who contravenes any of the provisions of this
section shall be guilty of an offence.

Display of signs in non-smoking areas

17. (1) The owner or manager of a public place or any public vessel
in which smoking is prohibited under this Act shall post clearly legible
signs stating that smoking is prohibited.

(2) The signs under subsection (1) shall be displayed in the national
languages and may in addition be displayed in the language most widely
spoken by the people of the area.

Owner to ensure no smoking

18. (1) The owner or manager of a public place or public vessel in
which smoking is prohibited under this Act shall take reasonable steps to
ensure that smoking does not take place in such place or vessel.

(2) The owner or manager of the premises shall —

(a) ask the person who is smoking to immediately cease smoking; or

(b) demand that the person smoking should leave the premises or vessel;
or


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No.10 Kwale County Air Pollution, Noise Pollution and Nuisances 2016

(c) Seek the assistance of a health officer, police officer or authorized
officer.

(3) A person who contravenes any of the provisions of this section
shall be guilty of an offence.

Public awareness campaigns

19. The County Executive Committee Member shall collaborate and
partner with other relevant departments and agencies, promote public
awareness on measures to safeguard the health of nonsmokers from
second-hand smoke.

PART IV—NOISE POLLUTION

Interpretation of this part

20. In this part—

"noise" means any undesirable sound that is intrinsically
objectionable or that may cause adverse effects on human health or the
environment;

"noise pollution" means the emission of uncontrolled noise that is
likely to cause danger to human health or damage to the environment;

"vibration" means an oscillatory motion of solid bodies of
deterministic or random nature described by displacement, velocity or
acceleration with respect to a given reference point;

"excessive vibration" means the presence of vibration which—

(a) is of such intensity, duration, frequency or character as to annoy,
disturb, or cause or tend to cause adverse psychological or
physiological effects on persons, or to damages or tend to
damage personal or real property; and,

(b) exceeds the recommended noise level as per schedule I, II, and
III of the Environmental Management and Coordination Act No.
8 of 1999.

Regulation of Noise

21. The County Executive Committee Member shall be responsible
for—

(a) the development of a county strategy on noise pollution;

(b) regulation of noise in special areas (schools, hospitals,
residential areas, libraries; and

(c) regulation of high noise levels associated with commercial and
associated machinery, public transportation and social activities.


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Special Places

22. (1) The County Executive Committee Member shall, by notice,
designate certain places to be special places for purposes of this Act.

(2) A place designated to be a special place under this section shall,
subject to section 23, not be subjected to high noise levels.

Application for License

23. (1) A person who desires to undertake an activity, whose noise
levels may constitute a danger or a nuisance under this Act, shall apply to
the County Executive Committee Member for a license before carrying
out such activity.

(2) The County Executive Committee Member shall —

(a) where the activity is not taking place within a special area, issue
a license subject to any conditions as it may impose;

(b) where the activity is to take place within a special area, consult
the community living in that area and seek expertise advice
before making a decision on the issuance of a license .

(3) The consultations between the department and the community
under subsection (2) shall be recorded and a copy thereof be placed with
such community representative as may be agreed upon.

(4) A person who carries out an activity contrary to this section
commits an offence.

License fees

24. (1) The County Executive Committee Member in consultation
of County Executive Member Finance shall determine the fees to be paid
for license under this Part and different fees may be set for different
activities.

(2) Provided that where an activity exceeds the period stated within
the license, the department shall on application, provided no breach of
contract has occurred on the part of the applicant and on payment of such
fee as may be prescribed, extend the license.

Regulations on Noise pollution

25. The County Executive Committee Member shall prescribe
regulations —

(a) to regulate the playing of musical instruments or the singing or
performing for profit, in or on any public place;

(b) to regulate all businesses, factories and workshops which, by
reason of noise, vibration or other cause, may be or become a


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source of danger, discomfort or annoyance to the neighborhood,
and to prescribe the conditions subject to which such businesses,
factories and workshops shall be carried on relating to special
places;

(c) specifying activities and license fees which fall under this Part;

(d) generally to give effect to the provisions of this Act.

PART V —NUISANCES

County Executive Committee Member powers regarding nuisances

26 (1) The County Executive Committee Member or any other
authorized person shall have power to; —

(a) compel occupiers or, in the case of vacant premises, owners, to
keep their premises free from offensive or unwholesome matter;

(b) regulate the keeping of animals, birds and bees and their
premises, so that their keeping and the premises are not
constructed, situated, used or kept in such manner as to be
offensive, be a public nuisance or injurious to health;

(c) take or require the taking of such steps and measures as may be
necessary or desirable for securing the prevention and
destruction of insects, fungi and any other, pests which attack
timber in buildings and felled timber and for preventing and
eradicating the infestation of any such timber;

(d) take measures for the destruction and suppression of rats and
vermin within its area, and to set traps or take other measures
necessary for the purpose on any land whether within or, with
the consent of the county concerned, without its area;

(e) establish and maintain sanitary services for the removal and
destruction of, or otherwise dealing with, all kinds of refuse and
effluent, paying particular attention to markets, slaughter houses,
silos and other places dealing in food;

establish and maintain public lavatories, closets and urinals
within its urban areas, and where such lavatories, closets and
urinals are established, maintain them in good order and repair;

take or require the taking of such steps and measures as may be
necessary or desirable for preventing or stemming the flow of
any noxious matter or waste water flowing or discharged from
any premises wherever situated, into the street, or any water
course irrigation canal or other place not approved for the
reception of such discharge;


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(h) to establish and manage pounds and prescribe the circumstances
in which any, article, vehicle, animal or bird which is found
abandoned or apparently abandoned, may be impounded and the
conditions under which any impounded article, vehicle, animal
or bird may be sold or destroyed;

(i) to establish sufficient number of cemeteries and crematoriums
and provide for the burial of all destitute persons who die within
its area and maintain the cemeteries and crematoriums in such
manner as to ensure they are not offensive, dangerous to health
or attractive to pests;

(j) do any other thing for the effective implementation of this Act.

(2) The Department shall if satisfied that a nuisance exists serve a
notice on the owner of a nuisance, or if he or she cannot be found on the
occupier or owner of the premises, requiring such owner to remove the
nuisance in the period specified in the notice.

(3) The Department may further instruct the owner of the nuisance
on additional measures that must be taken in order to prevent a recurrence
of the nuisance.

(4) A person who fails to comply with a notice to remove a nuisance
issued under subsection (1) within the period specified in the notice
commits an offence.

Nuisance and impounding of Animals

27. (1)Any person who keeps within the county any animal or
poultry which causes a nuisance to any of the residents in the
neighborhood shall be guilty of an offence.

(2) Any person who, except with the written permission of
Department and subject to such conditions as it may deem fit, keeps
within an urban area, a game animal or reptile other than a lizard, or any
ass, mule, ox, bull, or cow, goat, sheep or pig shall be guilty of an offence.

(3) The Department may remove any of the species of animals
referred to in subsection (2) which has been kept within the county or left
in a street in contravention of this Act and impound the same.

(4) The owner of an animal or reptile, as specified under subsection
(2), which is removed from the city or street in pursuance of subsection (3)
shall not be entitled to recover the same until he or she has paid to the
county, such fee as may be prescribed in the Regulations to cover
expenses incurred by the county for the upkeep of the animal.

(5) If an owner contemplated under subsection (4) does not pay the
fees and expenses due within a period of seven days from the date the said


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animal was impounded, the Department may sell or otherwise dispose of
the animal by auction or any other means and the proceeds of such
disposal, shall be set off against the outstanding fees and expense any,
incurred by the Department in the removal or disposal of the animal.

(6) A person shall be guilty of an offence, if such person has under
his control or in his custody: —

(a) any animal, reptile or bird, which causes a nuisance or
annoyance to any of the residents of the area; or

(b) any animal, reptile or bird which is so kept as to be or likely to
become injurious to the health of any person; or

(c) any animal reptile poultry or bird which wanders on a street in
such a manner as to cause obstruction, inconvenience to traffic
or pose a danger to persons.

(7) Any person who, except with the written permission of the
Department subject to such conditions as it may deem fit, permits any
animal referred to in subsection (1) to graze within a protected area shall
be guilty of an offence.

Protected area

28. (1) The County Executive Committee Member shall declare
specified areas to be protected areas under this Act.

(2) The department before declaring an area to be a protected area
shall consider the purpose for which it is being protected and the views of
the community within that area.

(3) A person who allows animals under his or her control to graze
within a protected area commits an offence.

Offences on Nuisances

29. (a) Any person who in any street, without a permit;

(i) ignites any firework;

(ii) for the purpose of hawking, selling, distributing or
advertising any article or event, shouts or uses any bell,
gong, or other noisy instrument or loudspeaker;

(iii) lights or maintains or suffers to be lit or maintained any fire
or brazier in the central area as defined in any laws of the
County for the time being in force;

(iv) commits any act contrary to public decency.


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(b) places or deposits and leaves any glass, china, earthenware, tin,
carton, paper, sawdust or other rubbish so as to create or tend to
create litter;

(c) throws down or leaves any orange peel, banana skin, or other
substance likely to cause a person to fall down;

(d) to the inconvenience or danger of any person carries or conveys
any bag of lime, charcoal, or other offensive material, timber or
any pointed or edged tools or implements not properly guarded;

(e) plays any game in such a manner as to cause the likelihood of
damage to property, or danger to any person;

(f) rides, drives or propels a vehicle on a footpath;

(g) while being in charge of any dog, allows such dog to foul any
path and fails to remove the stool;

(h) ides or drives any animal on a foot path;

(i) defecates or urinates on the street or any open space;

(j) touts for passengers; or

(k) talks on a mobile telephone while driving or crossing a road;

(1) without a permit draws graffiti on public buildings or on any
private buildings without consent ;

shall be guilty of an offence.

PART VI—GENERAL PROVISIONS

Obstruction of Authorized Officer

30. Any person who assaults or obstructs an authorized officer, or
other person duly authorized, in execution of their duty under this Act,
commits an offence and shall on conviction be liable to a fine of not
exceeding 100,000 thousand shillings or to imprisonment for a term not
exceeding 6 months or both.

General Penalty

31. (1) A person who is convicted of an offence under this Act, for
which no other penalty is provided, shall on conviction be liable to a fine
not exceeding shillings 500,000 or imprisonment for a period not
exceeding two years or to both such fine and imprisonment..

(2) The County Executive Committee Member may, by law, further
prescribe that, in addition to any penalty, any expenses incurred by the
county in consequence of the breach of any law made under this Act or in
the execution of any work directed by any such law to be executed by any


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person and not executed by him, shall be paid by the person committing
such breach or failing to execute such work.

Regulations

32. (1) The County Executive Committee Member shall make
regulations prescribing: —

(a) the fees to be charged in respect of any license or permit issued
under this Act;

(b) the form of applications and permits;

(c) any registers to be kept;

(d) conditions subject to which the County Executive Committee
Member shall issue permits relating to noise pollution, air
pollution and advertising; and

(e) generally to give effect to the provisions of this Act.

(2) All regulations made under this Act shall be forwarded to the
county assembly for consideration.


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