馃嚢馃嚜
Centre for Affordable Housing Finance in Africa
  • LEGAL, POLICY AND INSTITUTIONAL REVIEW OF THE AFFORDABLE HOUSING SECTOR IN KENYA
  • QUICK LINKS TO SEARCH FOR THE SOURCE REGULATORY DOCUMENTS
  • BILLS SCHEDULE
  • NEW DEVELOPMENTS
  • PLEASE SHARE YOUR COMMENTS & FEEDBACK
  • 1. SUMMARY of RECOMMENDATIONS
    • High Level Findings / Recommendations
    • Overall Policy & Regulatory Framework Recommendations
    • Land assembly, land acquisition, title, and registration of land tenure
    • Physical Planning
    • Construction and Maintenance
    • Financing (investment, rental, taxation)
  • 2. HOUSING VALUE CHAIN
    • i. Land assembly, Land Acquisition, Title and Registration of Land Tenure
    • ii. Physical Planning
    • iii. Construction and Maintenance
    • iv. Financing (investment, rental, taxation)
  • 3. INSTITUTIONS INVOLVED IN REGULATION OF HOUSING
    • i. Key National Government Ministries
    • ii. Secondary National Government Ministries
    • iii. County Governments
    • iv. Judiciary
    • v. Professional regulatory and advocacy bodies
  • 4. OVERARCHING POLICIES AND CONTEXT
  • 5. LAND ASSEMBLY, LAND ACQUISITION, TITLE AND REGISTRATION OF TENURE
  • 6. PHYSICAL PLANNING
  • 7. CONSTRUCTION AND MAINTENANCE
  • 8. HOUSING INVESTMENT, FINANCE & TAXATION
    • 8.1 Capital Markets and Wholesale Finance (Equity and Debt)
    • 8.2 Retail Finance
    • 8.3 Financial regulation of rental markets
    • 8.4 Taxation
  • ANNEX A: LAWS / POLICIES / REGULATIONS GOVERNING THE BREADTH OF THE HOUSING VALUE CHAIN
    • 1. Constitution of Kenya 2010
    • 2. Housing Act, 1953 Cap 117 (Revised in 2012)
    • 3. Housing Bill, 2021
    • 4. Sessional Paper No. 3 of 2016 on National Housing Policy
    • 5. Affordable Housing Act 2024
    • 6. Draft Affordable Housing Regulations, 2024
    • 7. The Economic and Social Rights Bill 2022
  • ANNEX B: LAWS / POLICIES / REGULATIONS GOVERNING LAND ASSEMBLY / ACQUISITION / TITLE / TENURE
    • 1. Land Act, No. 6 of 2012
    • 2. Land Registration Act, No. 3 of 2012
    • 3. Idle Land Taxation Policy 2018
    • 4. Community Land Act. No. 27 of 2016
    • 5. Sessional Paper No. 3 of 2009, the National Land Policy
    • 6. National Land Commission Act, No. 5 of 2012
    • 7. National Land Commission (Investigation of Historical Land Injustices) Regulations, 2017
    • 8. National Land Commission (Amendment) Bill, 2023
    • 9. Land Control Act (Cap 302), 1967
    • 10. Land Control Bill, 2023
    • 11. Environment and Land Court Act No. 19 of 2011
    • 12. Survey Act No. 25 of 1961 (Cap 299)
    • 13. Land Registration (General) Regulations, 2017
    • 14. Land Registration (Registration Units) Order, 2017
    • 15. Sectional Properties Act, No. 21 of 2020
    • 16. Land (Amendment) Bill 2022
  • ANNEX C: LAWS / POLICIES / REGULATIONS GOVERNING PHYSICAL PLANNING
    • 1. Sessional Paper No. 1 of 2017 on National Land Use Policy
    • 2. National Land Use Policy Implementation Monitoring and Oversight Tool 2022
    • 3. Kenya National Spatial Plan (2015-2045)
    • 4. Physical and Land Use Planning Act, No. 13 of 2019
    • 5. Physical and Land use Planning (Planning fees), Regulation 2021
    • 6. County Spatial Planning Guidelines, 2018
    • 7. Nairobi City Development Ordinances and Zones Guidelines 2004
    • 8. Nairobi Integrated Urban Development Master Plan (2014-2030)
    • 9. Physical Planning Handbook 2008
    • 10. Sessional Paper No. 10 of 2014 on The National Environment Policy
    • 11. Urban Areas and Cities Act, No. 13 of 2011
    • 12. Physical Planners Registration Act, No. 3 of 1996
    • 13. Export Processing Zones Act, 1990 (Cap 517)
    • 14. Investment Promotion Act, No. 6 of 2004
    • 15. Special Economic Zones Act, No. 16 of 2015
    • 16. Nairobi City County Regularization of Development Act No. 3 of 2015
    • 17. Nairobi City County Community and Neighbourhood Associations Engagement No. 4 of 2016
    • 18. Sectional Properties Regulations, 2021
    • 19. Nairobi City County Development Control Policy
  • ANNEX D: LAWS GOVERNING CONSTRUCTION AND MAINTENANCE
    • 1.Local Government (Adoptive ByLaws) Building Order, 1968 and The Local Government (Adoptive By-Laws
    • 2. National Building Code, 2024
    • 3. National Construction Authority Act, No. 41 of 2011
    • 4. National Construction Authority Regulations, 2014
    • 5. NCA Code of Conduct for the Construction Industry, 2020
    • 6. National Construction Authority (Defects Liability) Regulations, 2020
    • 7. Standards Act, 1974 (Cap 496)
    • 8. Buy Kenya-Build Kenya Strategy 2017
    • 9. Sessional Paper No. 1 of 2013 National Building Maintenance Policy for Kenya
    • 10. National Risk Disaster Management Bill 2023
    • 11. Kenya National Climate Change Response Strategy 2010
    • 12. Sustainable Waste Management Act 2022
    • 13. Forest Conservation and Management Act, No. 34 of 2016
    • 14. Forests (Harvesting) Rules, 2009
    • 15. Public Health Act, 1921 (Cap 242)
    • 16. Public Health (Drainage and Latrine) Rules, 1948
    • 17. Mining Act, No. 12 of 2016
    • 18. Persons with Disabilities Act, No. 14 of 2003
    • 19. The Climate Change (Amendment) Act, 2023
    • 20. Water Act No. 43 of 2016
    • 21. Environmental Management and Coordination Act, No. 8 of 1999
    • 22. Environmental (Impact Assessment and Audit) Regulations, 2003
    • 23. Environmental Management and Co-ordination (Water Quality) Regulations, 2006
    • 24. Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Re
    • 25. Energy Act No. 1 of 2019
    • 26. Proposed Climate Change (Green & Resilient Buildings) Regulations 2023
    • 27. The National Construction Authority (Amendment) Bill 2022
    • 28. The Water (Amendment) Bill, 2023
    • 29. Persons with Disabilities Bill, 2023
    • Case Law
  • ANNEX E: LAWS AND POLICIES RELATING TO PROFESSIONALS IN HOUSING
    • 1. Architect and Quantity Surveyor Act, 1933 (Cap 525)
    • 2. Architects and Quantity Surveyors By-Laws, 1959
    • 3. Competition Act, No. 12 of 2010
    • 4. Engineers Act, No. 43 of 2011
    • 5. Engineering Rules, 2019
    • 6. Engineers (Scale of Fees for Professional Engineering Services) Rules, 2022
    • 7. Engineering Technology Act, No. 23 of 2016
    • 8. Valuers Act, 1985 (Cap 532)
    • 9. The Construction Project Managers and Construction Managers Bill 2023
    • 10. The Real Estate Management Bill 2023
    • 11. The Physical and Land Use Planning (Outsourcing of Professional Services) Regulations, 2021
    • 12. The Valuers Bill, 2022
  • ANNEX F: LAWS GOVERNING FINANCING / RENTAL / TAXATION
    • 1. Retirement Benefits Act, No. 3 of 1997
    • 2. Building Societies Act, 1956 (Cap 489)
    • 3. Banking Act, 1989 (Cap 488)
    • 4. Capital Markets (Real Estate Investment Trusts) (Collective Investment Schemes) Regulations, 2013
    • 5. Central Bank of Kenya Act 1966 (Cap 491)
    • 6. Estate Agents Act, 1984 (Cap 533)
    • 7. Sacco Societies Act, No. 14 of 2008
    • 8. Sacco Societies (Deposit-Taking Sacco Business) Regulations 2010
    • 9. Sacco Societies (Non-Deposit Taking Business) Regulations 2020
    • 10. Sacco Societies (Amendment) Act, 2022
    • 11. Sacco Societies (Specified Non-Deposit Taking Business) (Levy) Order, 2023
    • 12. Cooperative Societies Act, No. 12 of 1997
    • 13. Employment Act, No. 11 of 2007
    • 14. Guarantee (House Purchase) Act, 1967 (Cap 462)
    • 15. Civil Servants (Housing Scheme Fund) Regulations, 2004
    • 16. Housing Scheme Fund Regulations, 2018 (Legal Notice No. 238 of 2018)
    • 17. Income Tax Act (Cap 470)
    • 18. Finance Act, No. 22 of 2022
    • 19. Public Finance Management Act, No. 18 of 2012
    • 20. Unclaimed Financial Assets Act, No. 40 of 2011
    • 21. Proceeds of Crime and Anti-Money Laundering Act, No. 9 of 2009
    • 22. Kenya Deposit Insurance Act, No. 10 of 2012
    • 23. Mortgages (Special Provisions) Act, 1968 (Cap 304)
    • 24. Auctioneers Act No. 5 of 1996
    • 25. Auctioneers Practice Rules 2009
    • 26. Auctioneer Rules, 1997
    • 27. Rent Restriction Act, 1959 (Cap 296)
    • 28. Stamp Duty Act, 1958 (Cap 480)
    • 29. Stamp Duty (Valuation of Immovable Property) Regulations 2020
    • 30. Value Added Tax Act, No. 35 of 2013
    • 31. Public Private Partnerships Act, No. 14 of 2021
    • 32. County Governments Act, No. 17 of 2012
    • 33. National Rating Act, 2024
    • 34. Distress for Rent Act, 1938 (Cap 293)
    • 35. Landlord and Tenant Bill, No. 3 of 2021
    • 36. The Cooperatives Bill, 2024
    • 37. The Central Bank of Kenya (Mortgage Refinance Companies) Regulations, 2019
    • 38. Finance Act No. 4 of 2023
    • 39. Tax Laws (Amendment) Act 2024
    • 40. Tax Procedures (Amendment) Act 2024
  • ANNEX G: OFF-PLAN HOUSING DEVELOPMENTS
  • ANNEX H: IN-DEPTH ANALYSIS ON HANGING REGULATIONS
    • 1. Housing Bill, 2021
    • 2. Landlord and Tenant Bill, No. 3 of 2021
    • 3. Retirement Benefits (Mortgage Loans) (Amendments) Regulations, 2020
    • 4. Housing Scheme Fund Regulations, 2018 (Legal Notice No. 238 of 2018)
    • 5. Housing Scheme Fund Regulations, 2018 (Legal Notice No. 238 of 2018)
    • 6. National Construction Authority (Defects Liability) Regulations, 2020
    • 7. The Finance Bill, 2024
    • 8. The Valuers Bill, 2022
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  1. ANNEX D: LAWS GOVERNING CONSTRUCTION AND MAINTENANCE

21. Environmental Management and Coordination Act, No. 8 of 1999

The statute seeks to provide for the establishment of an appropriate legal and institutional framework for the management of the environment and for matters connected therewith.

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路 Section 3 of the Act provides that every person is entitled to a clean and healthy environment and provides legal standing to any person to challenge an action or State organ where this right is being violated.

Among the functions of the National Environmental Management Authority (NEMA) established under section 9 of the Act is to coordinate various activities taken by different agencies to ensure plans, programmes and projects consider environmental considerations and make recommendations to relevant authorities with respect to land use planning.

Section 37 of the Act requires NEMA to formulate a National Environmental Action Plan (NEAP) every six years and conduct public participation before its adoption and then submitted to the Cabinet Secretary for approval. The Plan, among others, includes: recommendations on appropriate legal and fiscal incentives that may be used to encourage the business community to incorporate environmental requirements into their planning and operational processes; identify and appraise trends in the development of urban and rural settlements, their impacts on the environment, and strategies for the amelioration of their negative impacts; and propose guidelines for the integration of standards of environmental protection into development planning and management.

Section 40 of the Act also requires various County Environment Committees to prepare a County Environmental Action Plan every five years. The purpose of these Plans is to co-ordinate and harmonise the environmental policies, plans, programmes and decisions of the national and county governments in order to minimize the duplication of procedures and functions; and promote consistency in the exercise of functions that may affect the environment, and secure the protection of the environment across the country. Support that may be accorded to county governments is in preparing their County Environmental Action Plans.

路 Section 57 of the Act provides that the Cabinet Secretary for Finance may provide fiscal incentives for the purpose of inducing or promoting the proper management of the environment and natural resources or the prevention or abatement of environmental degradation. These incentives may include: customs and excise waiver in respect of imported capital goods which prevent or substantially reduce environmental degradation caused by an undertaking; tax rebates to industries or other establishments that invest in plants, equipment and machinery for pollution control, recycling of wastes, water harvesting and conservation, prevention of floods and for using other energy resources as substitutes for hydrocarbons; tax disincentives to deter bad environmental behaviour that leads to depletion of environmental resources or that cause pollution.

路 Section 57A of the Act provides that all Plans, Policies and Programmes determined by NEMA to have significant effects on the environment or that are subject to preparation or adoption by an authority at the regional, national, county or local level are subject to a Strategic Environmental Assessment.

路 The project proponent must undertake the environmental impact assessment study and submit a report of the study to NEMA before issuance with an Environmental Impact Assessment (EIA) Licence. NEMA is however afforded powers to dispense with this requirement in particular cases.

Section 58(8) of the Act requires the Director-General of NEMA to respond to applications for EIA licence within 3 months with section 58(9) providing that any person who does not receive any response within the said period may begin the undertaking/project. This provision introduced through amendments to the Act in 2015 was meant to avoid instances of undue delay on projects due to lethargy on the part of NEMA.

路 Section 67 affords NEMA with powers to revoke, suspend or cancel an EIA licence it has issued with reasons being given to the licensee in writing, effectively putting a stop to the project.

路 Sections 68 and 69 of the Act allow NEMA to carry out environmental audits and monitoring of all activities that are likely to have significant environmental effects.

路 Section 71 of the Act provides that the Cabinet Secretary responsible for environment upon the recommendation of NEMA shall establish criteria and procedures for measurement of water quality and recommend to NEMA minimum water quality standards for all waters of Kenya and for different uses including drinking water and recommend measures for treatment of effluents before being discharged into the sewerage system. This can influence the requirements of construction of houses.

路 Section 129(4) of the Act provides that upon lodging of any appeal at the National Environment Tribunal, every activity or project that is being challenged must stop and await the determination of the dispute by the Tribunal. Accordingly, the lodging of a dispute at the Tribunal serves as an automatic stay or injunction on any development, without necessarily seeking any injunctive orders. This provision can serve to delay or frustrate developers keen on initiating projects and may in fact encourage frivolous appeals to be lodged merely for the purpose of scuttling a development. There ought to be a balance in this regard either in terms of insisting on paying damages to the developer for lost monies if the Tribunal finds the appeal to have been frivolous, or an expedition of determination of such appeals by the Tribunal.

路 Notably, NEMA and the Ministry for Environment have since prepared to guide national and county governments in preparing their own plans.

路 Section 58 of the Act provides that any person being a proponent of a project (specified in the Second Schedule to the Act) shall before commencing or even financing a project or causing the same to be done, submit a project report to NEMA in the prescribed form upon payment of prescribed fee for purposes of conduct of an Environmental Impact Assessment. Notably, it is important to note that projects of the kind set out in the Second Schedule is by no means exhaustive as stated in where a court issued an injunction stopping works on construction of a public toilet by Nairobi City County in a land adjoining a mosque in Nairobi Central Business District on grounds that the proponent had not conducted an EIA yet the project would impose a major change in land use of a commercial nature. The real test to whether an EIA is necessary where the same is not listed in the Second Schedule to the Act, is to consider the: characteristics of the intended development; the location of the intended development and characteristics of potential impact; the size of the development as well as cumulation with other neighboring developments; the probability of any environmental impact; and the duration and reversibility of such impacts.

路 Some of the projects relevant to affordable housing listed in the Second Schedule of the Act (introduced through April 2019 amendments to the Second Schedule vide ) for which an EIA applies are; under the medium risk projects category, they include urban development including establishment of multi-dwelling housing developments of not exceeding one hundred units; transportation including parking facilities and water works. In the high-risk project category are; urban development including establishment of new housing estate developments exceeding one hundred housing units.

路 There is a detailed issued by NEMA in March 2020.

Environment Action Plan Preparation Guidelines 2016-2022
Registered Trustees of Jamie Masjid Ahl-Sunnait- Wal-Jamait Nairobi v Nairobi City County & 2 others [2015] eKLR
Legal Notice 31 of 2019
Public Notice on Processing of Environmental Impact Assessment Reports
https://new.kenyalaw.org/akn/ke/act/1999/8/eng@2022-12-31