WATER LAW II

Lecture 4
Mr. Osimbo Moses
Water and Environmental Engineer
 Regulation of water rights and works
• Water permit
• Easements
• Entry on land
• Licensing
• Effluent disposal
• Penalties to offences
• Water undertaking
 Water permit
• A permit is an official document giving someone
authorization to do something.
• Water permit are necessary for the regulation of water
rights and water works
• A water permit is a legal document given to someone or an
institution authorized to carry out operations within water
sector
• The permits are issued within a specified time frame and
can be renewed occasionally by the authority.
• For the permits to be issued, certain processes must be
followed.
• Permits issuance for domestic purposes are often given
priorities over others
 Water permit cont;
• Permits may be issued in exceptional cases where the
CS in consultation with authority may warrant grant
permit through regulation made in gazette
• This applies in cases where granting of permits may
interfere with water use for domestic purposes
• Grants can be categorized in different water services
– Surface water
– Effluent discharge
– Groundwater
– Swamp drainage
WATER PERMIT PROCESS
 Water permit process cont
• Permit holders will be required to pay some charges to the
authority for users of water as prescribed in permits
• The authority will establish and maintain a register of an applied
issue permit of the natural level
• Before a permit is issued, several considerations will be put in place;
– Efficient and favorable use of water in public interest
– Existing lawful uses of water
– Strategic importance of the proposed water use
– Quality of water in water resources may be required for the reserve
– Likely effects of the proposed of water use on water
– Predictable duration of operation of water use authorized
– Clarification and resource quality, objective of water resource
 Power to require permit application
or re-application
• This applies in response to authority review of water resource used to all
water users though a gazette notice to apply or re-apply for permits for
one or more water use
• The purpose of this process is;
– Promote efficient water resource management
– Ensure equal allocation of water
– Sustainable location from stressed sources
– To promote beneficial use of water for public interest
• The authority then prepares a proposed allocation schedule which is
subject to public consultation
• A preliminary schedule is then established in the gazette
• Any desfactorization of preliminary allocation can be appealed in 30 days
• The authority then publishes a final preliminary schedule for inspection in
different times after which permit can be issued according to the provided
schedule allocation and cancel any.
 Cancellation of a Water Permit
• Variation of a permit is where a change is affected in the use of a
permited water source
• A permit can be cancelled or varried where an applicant
contravenes any condition of permit of failure.
• These changes are done to accommodate other water users within
a particular water resources
• A permit holder will be notified of any cancellation of variation
processes
• Permit holders can therefore table an objection with reasonable
justifications to the authority on why their permit should be
cancelled or valid
• Financial compensation is given to permit holders
• Permits can also be valid after hydrogeological survey has been
done or unrequest from permit holders and the variation related to
the use of water authorised by the permit
 A permit is required for any of the following
reasons
• any use of water from a water resource, except as
provided by section 37
• the drainage of any swamp or other land;
• the discharge of a pollutant into any water
• resource; and
• any other purpose, to be carried out in or in
relation to a water resource, which is prescribed by
Regulations made under this Act to be a purpose
for which a permit is required
 Easement
• An Easement is a legal document issued by WRA formerly
WRMA authorizing the land holder to enter into another
land for the purpose of constructing and maintaining works.
• An easement is a non-possessory interest in the land of
another that entitles the easement holder to limit use of
another’s land without interference.
• An easement is a right benefiting one parcel of land that
permits the rightful users of the land to perform specified
actions over a neighboring parcel of land.
• Easement Holder is a person with a legal right to use the
easement and may include the owner of the land across
which the easement passes.
 Modes of acquiring easements
• Where the holder has no objection
• Where the holder has objection

1. Where the land holder has no objection

The operator serves the land holder with a written notice and a
copy is submitted to WRA/WRMA
The land holder and operator draw an agreement prepared and
signed by both parties by commission of oaths
A certified agreement is then sent to the Registrar of titles and
the particulars of work addressed in the title deed with the deed
plan
Two copies endorsed by the Registrar are submitted to WRMA
WRMA issues easement with conditions pertaining to Water
permit.
 2. Where the land holder objects
• The operator sends notice to the land holder and
a copy submitted to WRMA
• If the land holder does not reply 2 months, the
operator may apply for easement through WRMA
directly
• WRMA after consideration may approve or
dismiss the application.
• WRMA facilitates the easement to be endorsed
by the Registrar of Titles
• On receiving the endorsed copies, WRMA
easement with conditions.
 Conditions involved in Easement
• The easement holder must avoid frauding the
land
• The easement holder must keep the work in a
state of repair and if she or she fails, may be tried
in a competent court to pay damages
• The land holder shall not be prevented from
passing freely over or on his land
• The land holder must be notified of easement
application and particulars
• The land holder may use the land occupied by the
work.
 ENTRY ON LAND
• An employer or agent of WRMA may enter onto
any land without a warrant for the following
purposes
– Conserving or regulating the water resource
– Removing any obstruction or clearing and deepening
the bed
– Preventing the excessive or illegal diversion, waste or
pollution of water resource
• NB the employee or the agent shall enter the
other person’s land at reasonable hour of the day
and at some times a notice should be given.
• An employee or agent of the board may enter
other persons land without a warrant for the
following purposes;
– Exercising any right conversed to them to cut off
supply for non payment
– Exercising and right conversed to maintain and
execute work
– Ascertain whether there has been any
contravenience of any regulation
• NB the employee or any agent of the board
shall enter into a person’s land at reasonable
hours of the day
• An agent of WRMA or WSRB can arrest a
person who has contravened any section
under the water Act without a warrant if:
– He refuses to give his name at place of aboard
– Employee has reasons to believe that the name
and other particulars given are false
• Permits issue regarding entry to other peoples land shall be
determined by the authority
• This is done through a notification to identified land holders that an
application to enter their land has been made
• In making this permit’s applications several factors are put in place;
– Preventions or compensations
– Schedule of land which may be affected by
– Payment of a prescribed fee is made
– Submit names and addresses of affected land holders
– A survery is carried out by the authority to determine the effects of
proposed works or operations
– Inspections are carried out at different times by an inspector from
authority to inspect water resource location within or accessible from
land concerns
 Entry on Land cont’d
• The purpose of this inspection is;
– to prevent excessive or illegal diversion of water
– Remove any obstruction from or clear any deepening
the bed
– Conserve or regulate water resources

• The inspector may upon request for permit

holder, license or an agent to a permit holder
avail information regarding any inquiry
• License, map, land drawing, specifications
relating to permit
 Licensing
• Licensing means a restricted practice or a restriction
on the use of occupational title, requiring a license.
• Licensing gives one person the authority and right to
construct, for another person water service
structure.
• e.g. Dam should be constructed only by a licensed
dam contractor, unless he is the holder of a valid
dam contractor's licence.
• Every application for a contractor's license shall be
made to the Water service regulation Board in the
prescribed form.
• If the Water regulatory Board is satisfied that
the applicant is a fit person to be licensed, it
shall issue to him a contractor's license for
such period and subject to such conditions
as are specified thereon, and shall keep a
register containing the particulars of all such
licenses.
• A person shall not provide water services
except under a license issued by the
Regulatory Board, upon submission of an
application and such supporting documents
as the Board may require
 Qualification for licensing

• the applicant has the technical and financial

competence to provide water services
• applicant has demonstrated that the water
services to be provided will be commercially
viable
• the applicant has presented a sound plan for the
provision of an efficient, affordable and
sustainable water service;
• the applicant has proposed satisfactory
performance targets and planned improvements
and an acceptable tariff structure
• the applicant's business plans for the
provision of efficient, affordable and
sustainable water services
• evidence that the applicant's board of
directors complies with the standards set by
the Regulatory Board under section
 Registration qualified engineers
• The following persons only shall be entitled to
apply for a qualified engineer's license—
– a person who is a corporate member of the Institution
of Civil Engineers or is a member of an Engineering
Institution or Society of equivalent status; or
– a person who has graduated from any recognized
University and who has had at least four years
practical experience in the design and construction of
hydraulic works, including surveying.
Circumstances under which the license
can be cancelled
• constructed any water structure e.g a dam in an
improper, unsafe or dangerous manner;
• failed to submit any report required to be
submitted by him under the Act;
• intentionally made a misstatement of fact in any
report submitted by him;
• failed to comply with any provision of this Act; or
• knowingly been a party to any other person's
failure to comply with any provision of this Act.
– has become incapable of carrying out the work of
a qualified engineer; or
– has become unfit, through any reason, to practice
as a qualified engineer; or
– has failed to comply with the conditions of his
license or any provisions of the Act or any
reasonable requirement of the Water
Apportionment Board or the chairman,
 Effluent disposal
• "trade effluent" means any liquid, whether with or without
suspended particles, produced as a by-product in the course of any
trade or industry.
• According to Sector 76 of Water Act, no person should discharge
any trade effluent without the consent of the licenser
• Application of the consent shall include;
• The nature or component of a trade effluent
• The maximum quantity to be discharged on any one day

• NB; the consent may be given subject to the condition which may
include charge for discharge

• Effluent is commonly referred to as the treated waste water.

• Effluent disposal is classified into onsite and offsite.
• It shall be the duty of a licensee receiving
trade effluent into its sewerage system to
ensure that it has in place measures for the
receipt and handling of the of the effluent.
• A person shall not discharge any trade effluent
from any trade premises into the sewers of a
licensee without the consent of the licensee
An application for consent shall be made to the
licensee and shall state-
(a) the nature or composition of the trade effluent;
(b) the maximum quantity of the effluent which it proposes to
discharge on any one day;
(c) the highest rate at which it is proposed to
discharge the effluent; and
(d) any other information required by the licensee.

N/B The licensee's consent may be given subject to

conditions, including conditions requiring pre-treatment and
payments to the licensee of charges for the discharge. Any
person who is dissatisfied with the decision of the licensee on an
application under this section may, within thirty days of the
decision, appeal to the Regulatory Board.
The effluent should be handled with cautions to
avoid
pollution of the environment;
harm to human health;
(c) damage to the sewerage system: or
(d) a contravention of applicable laws or
standards set by the Regulatory Board.
Water undertaking
Penalties to offences
 TOPIC 2:
CRIMINAL
PROCEDURE CODE
 Judiciary of Kenya
• The Judiciary of Kenya is the system of courts
that interprets and applies the law in Kenya
• After the 2010 Constitution promulgation, the
Judiciary was reformed by the general public
through the Parliament
• There are two categories of courts
– Superior Courts – Supreme Court, Court of Appeals,
High Court, Industrial Court, Environment & Land
Court
– The Subordinate Courts – Magistrate Court, Court
of Martial and Kadhi’s Court
Hierarchy of Kenya Law Courts
The Supreme Court

The Court of Appeal

The High Court

Industrial Court of Kenya

Environment and Law Court

Magistrate Court

Kadhi Court

Courts Martial
Supreme Court
• Is the highest court in Kenya and all other courts are
bound by its decision.
• Comprise of Chief Justice as the President and Deputy
Chief Justice as Vice-President of the court and other 5
Judges
Court of Appeal
• Handles appeal cases from the High court and as
prescribed by the Parliament.
• Constitute 12 Judges headed by a President Appointed
by the Chief Justice
High Court
• It has supervisory Jurisdiction over all other subordinate
courts and any other persons, body or authority
exercising a judicial or quasi-judicial function
Subordinate Courts
• Are courts below the High Court.
Magistrate Court
• Is where majority of the judiciary cases are heard. Are
located in every county in Kenya.
• Comprise of Chief Magistrate, Senior Principal Magistrate,
Senior Resident Magistrate, Resident Magistrate or
Principal Magistrate
Kadhi’s Court
• Is court that hears Civil matters relating to Islamic law.
Parties involved must be followers of Islam.
Courts Martial
• Is the Millitary court where matters involving members of
the KDF are heard. Appeals from here are heared by the
High Court.
 Administration within Judiciary
• The chief administrator of the supreme court is
the Chief Justice, who is the President of the
supreme court
• Main responsibility is coming up with procedures
for running the courts, as well as the decision on
staffing and where new courts should be opened.
• The Judges of the High Court and the Court of
Appeal each elect a member to deal with
administrative issues as well as represent them in
the Judicial Service Commission.
 Court Room Etiquette
• A court is defined as the person and the suit of
sovereign.
• During court proceedings you are doing a business
with the court as complete entity.
• When one is addressing the court, he is entitled to
be fully and fairly heard.
– You should be like a statue, Nodding or shaking your
head, talking to others, reading or distracting people is a
grave discoutesy
– Unless you are so invited to do, never directly address
the judge or any officer or litigant of the court.
 – When directing a court, look directly at the judge
even if your message is to be acted upon by
another member of the court.
– Address the court with the word, ‘Your Honor’
• When you want the court to take notice of
something, say “I invite the court attention” or
“May it please the court”
• Excepting for the probe, you should dress as
the judge dresses – put on official clothes
• Use official language in the court, never use
sheng and street English