By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, March 2024)*
The legal framework for noise regulation includes the Constitution of Kenya, 2010; Environmental Management and Co-ordination Act, 1999; Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulation, 2009, Legal Notice No. 61 of 2009 and County laws such as Nairobi City County Public Nuisance Act 2021.
Constitution of Kenya, 2010
Article 42 (a) of the 2010 Constitution12 guarantees that: “every person has the right to a clean and healthy environment, which includes the right to have the environment protected for the benefit of present and future generations through legislative and other measures.” Article 70 (1) of the Constitution provides: “If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.”
It is also worth pointing out that the Fourth Schedule [Articles 185(2), 186(1) And 187(2) to the Constitution provides for the distribution of functions between the national government and the county governments. The functions and powers of the county governments include, inter alia: control of air pollution, noise pollution, other public nuisances and outdoor advertising.
The implication of this is that the duty of noise pollution control moved from National Environment Management Authority (NEMA) which is a national government arm, to the county governments. NEMA is just required to play an oversight role in this area, as per the Act. This is on the understanding that county governments are the lead agency in noise pollution control. EMCA defines “lead agency” to mean any Government ministry, department, parastatal, state corporation or local authority, in which any law vests functions of control or management or any element of the environment or natural resources.
Environmental Management and Co-ordination Act, 1999
The Environmental Management and Co-ordination Act, 1999 (EMCA) was enacted to provide for the establishment of an appropriate legal and institutional framework for the management of the environment and for matters connected therewith and incidental thereto.
Section 101 of EMCA gives the Cabinet Secretary the power to set standards for noise and, on the recommendation of the Authority: recommend minimum standards for emissions of noise and vibration pollution into the environment as are necessary to preserve and maintain public health and the environment; determine criteria and procedures for the measurement of noise and vibration pollution into the environment; determine criteria and procedures for the measurement of sub-sonic vibrations; determine standards for the emission of sub-sonic vibrations which are likely to have a significant impact on the environment; issue guidelines for the minimization of sub-sonic vibrations, referred to in paragraph (d) from existing and future sources; determine noise level and noise emission standards applicable to construction sites, plants, machinery, motor vehicles, aircraft including sonic bonus, industrial and commercial activities; determine measures necessary to ensure the abatement and control of noise from sources referred to in paragraph (f); and issue guidelines for the abatement of unreasonable noise and vibration pollution emitted into the environment from any source.
Section 102 thereof prohibits noise in excess of established standards by providing that subject to the provisions of the Civil Aviation Act (Cap. 394), any person who emits noise in excess of the noise emission standards established under this Part commits an offence. However, exceptions exist in relation to noise levels. EMCA offers the broad rules and criteria to be followed in the management and conservation of several environmental issues.
Hence, it is intended to be put into practice by the adoption of sector-specific laws that should concentrate on the various facets of the environment. In order to align the Act with the Constitution, EMCA was amended in 2015 by the Environmental Management and Co-ordination (Amendment) Act (No 5 of 2015). While EMCA contains provisions on almost all the aspects of the environment, it is worth pointing out that the procedural aspects of the regulation of these aspects heavily depends on regulations and other laws that expound on the EMCA provisions.
Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulation, 2009, Legal Notice No. 61 of 2009
The Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulation, 2009 defines “noise” to mean any undesirable sound that is intrinsically objectionable or that may cause adverse effects on human health or the environment. These Regulations prohibit any person from making or causing to be made any loud, unreasonable, unnecessary or unusual noise which annoys, disturbs, injures or endangers the comfort, repose, health or safety of others and the environment. However, there are some exemptions to these prohibitions.
In the case of Pastor James Jessie Gitahi and 202 others vs Attorney General, the court recognized one of the components of a clean and healthy environment to be the prevention of noise and vibration pollution. Despite the Regulations, noise pollution is however still a major problem in the country because of lack of enforcement of the Regulations and possibly the public’s ignorance on the levels of noise that may be considered as air pollution.
County Laws
Some counties have already embraced their role under the Constitution to control noise pollution, such as the Nairobi City County Public Nuisance Act 2021 which provides in section 20 that: “a person shall not in any street or in any shop, business premises or any other place adjoining any street to which the public are admitted, play, operate, cause or allow to be played or operated, any musical instrument, wireless, gramophone, amplifier or similar instrument thereby making, causing or authorising noise to be made which is loud and continuous, or repeated as to constitute a nuisance to the occupants or dwellers of any premises in the neighbourhood or to passersby on the street.” There is a need for other county governments to follow suit and put in place laws and regulations aimed at addressing noise pollution within their counties.
*This is an extract from Kenya’s First Clean and Healthy Environment Book:Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024)by Hon. Prof. Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.
References
‘What Is Gender and Biodiversity?’ Available at https://www.cbd.int/gender/biodiversity/ (Accessed on 11/08/2023).
African Charter on Human and People’s Rights., Available at https://au.int/sites/default/files/treaties/36390-treaty-0011_- _african_charter_on_human_and _peoples_rights_e.pdf (Accessed on 12/08/2023).
Crabtree. E., ‘Why we Need Gender Equity, Not Just Equality.’ Available at https://iqeq.com/insights/why-we-need-gender-equity-not-justequality/#:~:text=Gender%20equality%20is%20giving%20all,limit%20 how%20people%20access%20 opportunities. (Accessed on 11/08/2023).
DCED., ‘Gender Equality vs Equity.’ Available at https://www.enterprisedevelopment.org/weegateway/gender-equality-vs-equity/ (Accessed on 11/08/2023).
De Silva. DG., & Pownall. RA., ‘Going Green: Does it Depend on Education, Gender or Income? ‘ Applied Economics, Volume 46, No. 5. (2014) pp573–586.
Fitzmaurice. M., ‘The Principle of Sustainable Development in International Development Law.’ International Sustainable Development Law., Vol 1.
- J. Latham, “A study on gender equality as a prerequisite for sustainable development,” Report to the Environment Advisory Council, Sweden 2007:2, p. 17. Available at http://www.uft.oekologie.unibremen.de/hartmutkoehler_fuer_studierende/MEC/ 09-MECreading/gender%202007%20EAC%20rapport_engelska.pdf (Accessed on 11/08/2023).
Geneva Environment Network., ‘Gender and the Environment.’ Available at https://www.genevaenvironmentnetwork.org/resources/updates/gender-and-theenvironment/ (Accessed on 11/08/2023).
Goodland. R., ‘The Concept of Environmental Sustainability.’ Annual Review of Ecology and Systematics, Volume 26 (1995), 1-24.
Hannan. C., ‘Mainstreaming Gender Perspectives in Environmental Management and Mitigation of Natural Disasters.’ Available at https://web.archive.org/web/20180721174301id_/http://www.un.org/ womenwat ch/osagi/pdf/presnat%20disaster.PDF (Accessed on 12/08/2023).
IUCN., ‘Gender and the Environment: What are the Barriers to Gender Equality in Sustainable Ecosystem Management?’ Available at https://www.iucn.org/news/gender/202001/gender-and-environment-what-are-barriers-gender-equality-sustainable-ecosystem-management (Accessed on 12/08/2023).
Kariuki. J., & Birner. R., ‘Exploring Gender Equity in Ecological Restoration: The Case of a Market Based Program in Kenya.’ Available at https://er.uwpress.org/content/wper/39/1-2/77.full.pdf (Accessed on 12/08/2023).
Kassinis. G et al., ‘Gender and Environmental Sustainability: A Longitudinal Analysis.’ Corporate Social Responsibility and Environmental Management (2016).
Morelli. J., ‘Environmental Sustainability: A Definition for Environmental Professionals.’ Journal of Environmental Sustainability, Volume 1, Issue 1 (2011).
Muigua. K., ‘Actualising the National Policy on Gender and Development in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2020/10/Actualising-theNational-Policy-on-Gender-and-Development-in-Kenya-Kariuki-Muigua-Ph.DOctober-2020.pdf (Accessed on 12/08/2023).
Muigua. K., ‘Gender Perspectives in Biodiversity Conservation.’ Available at http://kmco.co.ke/wp-content/uploads/2021/11/Gender-Perspectives-inBiodiversity-Conservation-Kariuki-Muigua-November-2021.pdf (Accessed on 11/08/2023).
Muigua. K., ‘Towards Meaningful Public Participation in Natural Resource Management in Kenya.’ Available at http://kmco.co.ke/wpcontent/uploads/2018/08/TOWARDS-MEANINGFUL-PUBLIC-PARTICIPATIONIN-NATURAL-RESOURCE-MANAGEMENT-IN-KENYA.pdf (Accessed on 12/09/2023).
Organization for Security and Co-operation in Europe., ‘Gender and the Environment.’ Available at https://www.osce.org/files/f/documents/4/f/36360.pdf (Accessed on 12/08/2023).
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa., Available at https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/Prot ocolontheRightsofWomen.pdf (Accessed on 12/08/2023).
Report of the World Commission on Environment and Development., ‘Our Common Future’ 1987 (Brundtland Report).
Republic of Kenya., ‘Sessional Paper No. 02 of 2019 on National Policy on Gender and Development.’ Available at http://psyg.go.ke/wpcontent/uploads/2019/12/NATIONAL-POLICY-ON-GENDER-ANDDEVELOPMENT.pdf (Accessed on 12/08/2023).
Robinson. D., ‘15 Biggest Environmental Problems of 2023.’ Available at https://earth.org/the-biggest-environmental-problems-of-our-lifetime/ (Accessed on 11/08/2023).
Shobeiri. S., & Meiboudi. H., ‘Women’s Participation in Environmental Management and Development Promotion Culture.’ Available at https://www.researchgate.net/publication/311533595_Women’s _participation_in_e nvironmental_management_and_development_Promotion_Culture#:~:text=Women %20are%20the%20main%20cause,environmental%20management%20are%20so%20o bvious. (Accessed on 12/08/2023).
SIDA., ‘Gender and the Environment.’ Available at https://cdn.sida.se/publications/files/-gender-and-the-environment.pdf (Accessed on 11/08/2023).
Sphera., ‘What Is Environmental Sustainability?’ Available at https://sphera.com/glossary/what-is-environmental-sustainability/ (Accessed on 11/08/2023).
The Organization for Economic Cooperation and Development., ‘Gender and the Environment.’ Available at https://www.oecd.org/env/gender-and-theenvironment-3d32ca39-en.htm (Accessed on 12/08/2023).
UN Women., ‘Explainer: How Gender Inequality and Climate Change are Interconnected.’ Available at https://www.unwomen.org/en/newsstories/explainer/2022/02/explainer-how-gender-inequality-and-climate-changeare-interconnected?gclid=CjwKCAjw29ymBhAKEiwAHJbJ8p-iWBVsiOQq0h8- HiXaObwP7T1nztSxRGPldFcxcRs-fIzzRIQIgRoCVrIQAvD_BwE (Accessed on 12/08/2023).
UNICEF., ‘Climate Change and Environmental Sustainability.’ Available at https://www.unicef.org/india/what-we-do/climate-change (Accessed on 11/08/2023).
United Nations Department of Economic and Social Affairs., ‘Forum on Climate Change and Science and Technology Innovation.’ Available at https://www.un.org/en/desa/forum-climate-change-andscience-and-technologyinnovation (Accessed on 11/08/2023).
United Nations Environment Programme., ‘About Gender.’ Available at https://www.unep.org/explore-topics/gender/about-gender (Accessed on 11/08/2023).
United Nations Framework Convention on Climate Change., ‘New Report: Why Climate Change Impacts Women Differently than Men.’ Available at https://unfccc.int/news/new-report-why-climate-change-impacts-womendifferently-thanmen?gclid=CjwKCAjw29ymBhAKEiwAHJbJ8ssIfst99WBehD0DHNpgs bjqaHye6wO iIPq9xBR4ZYRvsL8yf_KNgxoCskUQAvD_BwE (Accessed on 12/08/2023).
United Nations General Assembly., ‘Report of the United Nations Conference On Environment and Development: Rio Declaration on Environment and Development.’ A/CONF.151/26 (Vol. I), Principle 3.
United Nations, “The Role of Men and Boys in Achieving Gender Equality,” Women 2000 and Beyond, December 2008, p.4. Available at http://www.unwomen.org/~/media/headquarters/media/publications/un/en/w 2000menandboyseweb.pdf (Accessed on 11/08/2023).
United Nations., ‘Report of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972’ Principle 2.
United Nations., ‘Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace.’ AlCONF.116128/Rev.1 48.
United Nations., ‘Transforming Our World: The 2030 Agenda for Sustainable Development.’ Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda %20for%20Sustain able%20Development%20web.pdf (Accessed on 12/08/2023).
United Nations., ‘What is Climate Change?’ Available at https://www.un.org/en/climatechange/what-is-climate-change (Accessed on 11/08/2023).
