Buying land in Kenya is an essential investment, whether as a residential, agricultural, or industrial site.
But in every stage of haggling with a seller over a property, one of the questions you might not be asking yourself is: Can I get stuck with the tab for environmental damage that took place on this land before I bought it?
It is very easy to get into a legal struggle over an issue you did not participate in, especially regarding property issues.
As a property lawyer in Kenya, we advise that liability under Kenyan law depends on specific legal provisions, the nature of the damage, and the due diligence undertaken by the buyer.
Consulting a lawyer in Kenya with expertise in environmental law will help you know which steps to take. Talk to us if you are looking for legal help with these issues.
Here is everything about Kenyan environmental Law, sources of ecological damage, principles of liability, real-world effects, what not to do to be left holding the environmental damages costs, and even penalties relating to environmental damage.
Can Current Landowners Be Held Liable?
First of all, let’s answer this question.
Under Kenyan law, current owners of a piece of land can be held responsible for any environmental degradation caused by its first owners, if the first polluter cannot be traced or blamed.
But this is not as straightforward as you think. Here are some things you have to know first:
What are some of the Causes of Environmental Damage that can lead you to Trouble?
Environmental pollution includes carbon monoxide, environmental damage from industrial emissions, and environmental damage caused by plastic waste polluting water bodies.
Poor waste management, chemical accidents, deforestation, or industrial exploitation destroy the environment.
Kenya’s constitution recognises environmental protection as a priority, and laws safeguard a clean and healthy environment available to all.
But it does become a tricky question about who’s responsible when property changes hands, particularly when accounting for that environmental damage and eco-variate of overpopulation, where population pressure causes resource depletion and pollution.
What Does the Constitution of Kenya 2010 Say?
The Constitution grants citizens the right to a clean and healthy environment under Article 42 and offers protection against environmental harm, including harm from carbon monoxide, environmental damage, or plastic pollution.
The Environmental (Impact Assessment and Audit) Regulations, 2003 require EIA reviews and audits to assess and identify pollution risks, which may include pollution resulting from plastic or industrial waste.
The Water Act, 2016, and Waste Management Regulations, 2006 deal with pollution of water bodies, including by plastic waste, and improper disposal of waste, as some of the major causes of environmental degradation.
The “Polluter Pays” Principle
Kenyan environmental legislation is based on the polluter pays principle, meaning any person or entity whose activities cause ecological damage (carbon monoxide, environmental damage, plastic pollution) must bear the cost for the environmental damage.
EMCA puts the primary polluter first (Section 87). However, it is a different story if the polluter is unknown (or bankrupt or no longer related to the property) and/or the current owner has done nothing to exacerbate the pollution revealed by environmental damage studies.
Can the Present Landowners Be Sued?
Kenyan law allows current landowners to be held responsible for environmental pollution created by previous owners under certain circumstances, irrespective of whether the pollution results from plastic pollution, chemical spills, or other causes.
Liability is determined as follows:
Possession or Occupancy of Polluted Premises
EMCA (part 93) makes it mandatory for landowners to report pollution, such as environmental impact caused by plastic or heavy metals, to NEMA.
Should contamination be found, NEMA has the power to order the owner to clean up the land by imposing a restoration order under section 108, even though it was not the owner’s activities that led to the pollution.
This is, for example, true of “orphan sites”, whose initial polluter cannot be found, which adds the environmental clean-up cost for the current owner.
Knowledge of Contamination
Liability may hinge on whether the owner knew or should have known of the contamination through environmental damage assessments.
If a landowner buys a property without conducting an environmental impact assessment review and later finds contaminated soil, they may still be required to bear the environmental damage cost.
Factors courts could consider include whether reasonable precautions, such as environmental audits, were undertaken before purchase.
Failure to Act
If a landowner finds contamination and doesn’t report or remediate it, they could be responsible for aggravating it.
This could be carbon monoxide environmental damage or plastic pollution wreaking havoc on ecosystems around them. EMCA concentrates on what should be done to prevent further damage.
Retrospective Liability
Kenyan law also provides for retroactive liability through which present owners can be held accountable for past contamination, as in the case of plastics or industrial pollution, particularly if it endangers human health or the environment.
Defenses and Exemptions
Existing landowners may also have defenses to reduce liability:
Due Diligence
An environmental site or impact assessment review before purchase can disprove the contention that the property owner was unaware of the contamination.
This may help to support a claim for compensation for environmental damage from the seller or polluter.
Third-Party Liability
If the initial polluter, such as a company that polluted the environment with carbon monoxide and damaged the environment, can be pinpointed, the landowner could file a lawsuit to collect the money spent on cleanup efforts.
Reasonable effort
It can be argued that prompt reporting of contamination to NEMA and compliance with any reclamation orders issued might mitigate fines and establish compliance with EMCA.
Real-World Implications
To make it easier for us to understand how liability functions in the context of Kenyan law, read through these examples.
Industrial Site Contamination
You buy land that was formerly used as the site of a factory. An environmental damage inspection report shows chemical contamination and environmental damage to the property due to the deposit of plastic waste in the previous owner’s plant.
NEMA declares a restoration notice, and you have to restore the land. You own it now, so you pay for polluting even though you didn’t do the polluting because the polluter before you went bankrupt.
However, if you did a phase-1 environmental review and attached a clause providing indemnification to the sale, you might sue the seller for ecological harm.
Agricultural Land Pollution
You buy a farm, and an environmental damage assessment reveals chemical and plastic pollution in a nearby water source.
You must clean it up because the previous owner can’t be found. Suppose you report the problem quickly and hire an environmental consultant.
In that case, you can minimize the fine, while using the ecological aspect to deal with environmental damage and overpopulation, demographics, where more people = more pollution from more agricultural farms.
These examples demonstrate the need for due diligence and proactive environmental management to avoid unanticipated liabilities and rising ecological damage costs.
Practical Steps to Protect Yourself
To reduce exposure for environmental harm caused by prior landowners under Kenyan laws, consider doing the following:
Performing Environmental Due Diligence
Engage an appropriately qualified environmental consultant to conduct an EIA or environmental damage assessment as prescribed by the Environmental (Impact Assessment and Audit) Regulations, 2003 at (b) above.
These evaluations calculate risks, such as the damage to the environment from plastic, environmental damage from carbon monoxide, or contaminated soil.
If available, evaluate past land use by reviewing the historical land use records or NEMA reports to identify potential environmental damage sources.
Insert Safeguards in the Purchase Agreements
Negotiate indemnification clauses to cover the environmental damage cost for pre-existing contamination, such as plastic pollution or chemical spills.
Ask the seller to disclose any environmental concerns, as non-disclosure might give rise to a claim for environmental damage.
Get Your Environmental Insurance
Investigate environmental liability insurance to cover the costs of remediating past damage, including historical environmental damage attributed to plastic (or any other toxins). This industry is evolving and is likely to provide future coverage.
Engage with NEMA
Report pollution incidents, including carbon monoxide, environmental degradation, or plastic waste, to NEMA as per Section 93 of EMCA.
Noncompliance with material damage costs and penalties escalates. Work with NEMA partners on a remediation plan for the environmental pollution, including but not limited to soil remediation and/or water treatment.
Seek Legal and Environmental Advice
If you hire an environmental lawyer to go through contracts to ensure that EMCA is being adhered to, specifically examine what you are getting paid for suffering ecological damage.
Appoint an environmental consultant to review an environmental impact assessment and ensure adherence to NEMA criteria.
Monitor Ongoing Compliance
Develop an environmental management plan to mitigate current risks, such as environmental degradation and demographic risks, such as the highly densely populated environment factor, to facilitate sustainable land use within high population density areas.
Challenges and Considerations
There are various obstacles when addressing environmental liability in the light of Kenyan law:
Costly remedies
The cost to address problems like environmental damage from carbon monoxide or damage from plastic pollutants can be prohibitively high, particularly for small landholders.
Current Case Law is Limited
There are very few opinions that give guidance on how much a present owner should be responsible. From NEMA, most issues are resolved at an administrative level.
Population Pressure
The environmental wear and tear and overpopulation demographic factor complicates mitigation, as Kenya’s rapid urbanisation and growing agriculture further fuel pollution.
Conclusion
Under Kenyan law, current owners of a piece of land can be held responsible for any environmental degradation caused by its first owners, if the first polluter cannot be traced or blamed.
The Constitution of Kenya 2010 and EMCA 1999 emphasize the “polluter pays” principle.
Still, the owner must report and remedy soil pollution, such as that caused by plastics, environmental damage due to carbon monoxide, and other sources of environmental damage.
In oil release, where the restoration process is concerned with the environment, ecological damage assessments, negotiating protective contractual terms, and communications with NEMA are essential factors that need to be done to reduce the cost of environmental damage and recover the damage.
Defining ecological damage and the demographic aspect of overpopulation is equally vital in the Kenyan context, where rapid population growth is experienced.
Before you buy land, look into an environmental attorney and review any ecological impact assessments of the land to identify any risks.
Acting early can safeguard your investment and contribute to Kenya’s constitutional objective of a clean and healthy environment.
Do you intend to buy land in Kenya? Do you have any thoughts or stories regarding environmental damage assessments? Contact an environmental lawyer in Kenya to protect your investment.
