N ANALYSIS ON THE EFFICACY OF ENVIROMENT LAW IN URBAN ECOSYSTEM

SUSTAINABILITY IN KENYA.

LAIBUTA LEAH NKATHA

A DISSERTATION PROPOSAL SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIMENTS FOR THE AWARD OF MOUNT KENYA UNIVERSITY

BACHELOR OF LAWS

JANUARY 2023
 DECLARATION AND APPROVAL.

Declaration by the student.

The dissertation proposal is my original work and has not been presented for a degree in any

other University or any other award.

Signature………………………….. Date………………………..

Laibuta Leah Nkatha

BLAW/2020/63272

Approval by supervisor.

I confirm the work reported in this dissertation proposal was carried out by candidate under my

supervision.

Signature…………………………… Date………………………….

Madam Hellen Mogeni

Mount Kenya University

School of Law

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 CHAPTER ONE

INTRODUCTION.

1.0 Introduction.

The urban ecosystem balancing and integration spheres is becoming a great challenge in globally

.Unhealthy urban ecosystems is leading to local and wider environmental degradation, social

problems, economic decline, human health problems and further disconnection from nature. The

three spheres are natural environment, built environment and socio-economic environment

they are recognized as the living entities that are dynamic hence an action should be taken

towards them for sustainability. The policies were formulated first in UN Conference on the

Human Environment, the Stockholm Declaration (1972). It was adopted in 2010 Constitution

of Kenya article 42, 69, 70 and 72, hence efficacy of the environmental laws in Kenya is

fundamental in the achievement of the urban ecosystem sustainability.

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1.1 Background of the study.

The genesis of the urban ecosystem sustainability started in the bible. In the 4004 BC, God

created the earth after perceiving the goodness of what He had created, God created humanity

with his own image.1 The human being was kept in harmony with earth and he was given the

mandate to subdue. God gave a duty of stewardship to the human beings by telling them to rule

the earth and not to destroy it. 2 Creation of human being was fundamental to the ecosystem

sustainability which affirms the economic and social rights as well as environmental social

determination.

God gave the Garden of Eden to Adam and Eve to recreate and add other resources. They

disobeyed God by eating the forbidden tree and discovered they were naked. 3 This was the

beginning of interfering with God ecosystem by plucking the fig tree to cover themselves. It

caused destruction of own peace and marked the beginning of economic system from socialism

to capitalist society.4 It changed the manner in which people related to each other and use of

environmental resources .Human being became more oriented on wealth creation and profiting

without consideration of the ecosystem sustainability.

In 722 BC in Samaria a city in Israel, God spoke of making a heap of rubble, of planting

vineyard, pouring out stones in the valley and laying bare foundations. 5 The punishment was

introduced in order for the people to start minding about the ecosystem sustainability. This

punishment marked the beginning of the environment policies.

1
Smart, J. J. (1959). Sensations and brain processes. The Philosophical Review, 68(2), 141-156.
2
Onyekwelu, Jonathan Chukwujekwu. "Sustainable Forest Management: The Pathway Back to The Garden of
Eden." (2017).
3
Petcu, L. (2020). Highlights from Orthodox Spirituality on the Temptation of Man by the Devil and Man’s Fall
into Sin. Romanian Journal of Artistic Creativity, 8(1), 41-56.
4
Clemence, M., 2015. Environmental Justice for Sustainable Development: A Biblical Perspective. Global Journal
of Interdisciplinary Sciences, 4(3), pp.33-38.
5
Waltke, B. K. (2008). A commentary on Micah. Wm. B. Eerdmans Publishing.

4
In 500 B.C.E. - 400 C.E Greece and Rome civilization began and now called France. 6 It started

with treatment of slaves and use of barter trade to grow wealth and practice of economic

activities which led to establishment of cities. The Greeks and Romans after the growth of cities

there was failure to maintain a balance of natural environment as a result of the human

activities.7 French-style became a centralized system which led to concentrated population main

reasons being economic, financial, cultural and political centers, all located in the French capital

Paris.8 Paris is among the largest urban centers on the world.

The centralization of power led to a very diverse distribution leading to high population

concentration. Which is ten times higher than the Haut-de-France region, the second

concentrated urban area in France. Environment laws in France were found in the 2004

Environmental Charter which is part of the France Constitution with main aim being to achieve

urban ecosystem sustainability.9 French environment laws were influenced by European Union

law as the legislation consists, the directives from the European Union. France constitution laws

are concerned with the preservation of natural resources to promote ecosystem sustainability,

monitoring of hazardous activities that lead to death of species due to growth of urban

ecosystem.10 It also extends to the environment assessment and public information on projects it

includes building of the cities.

The first urban ecosystem sustainability in Africa started in 12000 BCE in Mesopotamia

currently called Egypt this due to the economic activities that occurred along river Nile that is
6
Hughes, J. D., & Hughes, J. D. (2014). Environmental problems of the Greeks and Romans: Ecology in the ancient
Mediterranean. JHU Press.
7
Butzer, K. W. (2005). Environmental history in the Mediterranean world: cross-disciplinary investigation of cause-
and-effect for degradation and soil erosion. Journal of Archaeological Science, 32(12), 1773-1800.
8
Elazar, D. J. (1975). Urbanism and federalism: twin revolutions of the modern era. Publication, 5(2), 15-39.
9
Brodhag, C., & Talière, S. (2006, May). Sustainable development strategies: Tools for policy coherence. In Natural
Resources Forum (Vol. 30, No. 2, pp. 136-145). Oxford, UK: Blackwell Publishing Ltd.
10
Duvernoy, I., Zambon, I., Sateriano, A., & Salvati, L. (2018). Pictures from the other side of the fringe: Urban
growth and peri-urban agriculture in a post-industrial city (Toulouse, France). Journal of Rural Studies, 57, 25-35.

5
agriculture.11 More cities started developing Meroe today called Sudan was one of the major

cities in Sub-Sahara Africa. In 590 BC there was development and people were advancing and

becoming innovative through building and carrying out trade, the Meroitic kingdom developed

independently. Meroe advanced in iron technology, and building construction dates back to at

least 900 BC.12 Meroe was one of the great center of agriculture leading to urban ecosystem

growth with three spheres experienced social economic environment, natural environment and

built environment.13The innovations has led to the collapse of the Meroe urban ecosystem due

lack of sustainability due to unsuccessful environment laws.

Most African countries experienced colonialization the major contribution of Africans in the

world is slaves, minerals, farm and forest produce to the global capitalist system leading to

growth urban ecosystem.14 . African urban ecosystem sustainability has been dominated by

colonial experiences and its legacies led to economic, social and political practices led to rapid

urbanization. This reality is not taken seriously by development agendas, what the government

and people focus on is infrastructure and finance gaps leading to the government frailer towards

the efficacy of environment laws. 15 However, it provides the foundation, and implementation of

laws, that address sustainable urban development in Africa which must be built. African urban

ecosystem sustainability has been dominated by colonial experiences and its legacies led to

economic, social and political practices which led to urbanization.

11
Elmqvist, T., Redman, C. L., Barthel, S., & Costanza, R. (2013). History of urbanization and the missing
ecology. Urbanization, biodiversity and ecosystem services: challenges and opportunities: a global assessment, 13-
30.
12
Tracy, J. D. (Ed.). (2000). City walls: the urban enceinte in global perspective (Vol. 4). Cambridge University
Press.
13
Fuller, D. Q. (2014). Agricultural innovation and state collapse in Meroitic Nubia. Archaeology of African plant
use, 61, 165-177.
14
Cirolia, L. R. (2020). Fractured fiscal authority and fragmented infrastructures: Financing sustainable urban
development in Sub-Saharan Africa. Habitat International, 104, 102233
15
Afriyanie, D., Julian, M. M., Riqqi, A., Akbar, R., Suroso, D. S., & Kustiwan, I. (2020). Re-framing urban green
spaces planning for flood protection through socio-ecological resilience in Bandung City, Indonesia. Cities, 101,
102710.

6
 In South Africa 1980s and early 1990s business and retail was propelled by the manifestation of

deteriorated buildings, an increase in slums and crime and a shabby, poorly managed urban

environment.16 The increase in urbanization have putted tremendous pressure on already strained

infrastructure services, economic systems, the natural environment, and governance processes.
17
Food insecurity, homelessness, crime and violence, unemployment, a lack of access to clean

water and sanitation, pollution, and energy, poverty are an ongoing concern and coupled with

environmental and economic shocks, risks and hazards, present problems that need to be

grappled.

South Africa was headed by minority who were British and they controlled the trade, had divided

country to three groups British, Dutch and blacks within 1994 it marked the end of the
18
Apartheid. Africans were allowed to participate, it brought about the issue of whether

democracy would help redress the issue of economic and social inequalities that hinder

development.19 The Apartheid regime was opposed by many it led to boycott of economic and

cultural practices which affected the life in South Africa and Apartheid law were amended. 20 As

this transition attests, the country has made remarkable progress in establishing social equity in a

short period of time.

The law on human right to clean Environment was adopted in, African Charter on Human and

People's Rights, in 198121.South Africa became a democratic in 1994, and ratified the
16
Sineke, C., & Smallwood, J. (2016). The Rejuvenation of a Historical Neighbourhood in South Africa.
In Sustainable Ecological Engineering Design: Selected Proceedings from the International Conference of
Sustainable Ecological Engineering Design for Society (SEEDS) (pp. 309-324). Springer International Publishing.
17
Massey, R., & Gunter, A. (2020). Urban geography in South Africa: an introduction. Urban Geography in South
Africa: Perspectives and Theory, 1-15.
18
Clark, N., & Worger, W. (2013). South Africa: The rise and fall of apartheid. Routledge.
19
Heller, P. (2001). Moving the state: the politics of democratic decentralization in Kerala, South Africa, and Porto
Alegre. Politics & society, 29(1), 131-163.
20
Simon, D. (1989). Crisis and change in South Africa: implications for the apartheid city. Transactions of the
Institute of British Geographers, 189-206.
21
Amechi, E. P. (2009). Enhancing Environmental Protection and Socio-Economic Development in Africa: A Fresh
Look at the Right to a general Satisfactory Environment under the African Charter on Human and Peoples'

7
Convention on Biological Diversity in 1995. 22 Article 8 (h) of the Convention on Biological

Diversity requires each contracting party to, as far as is possible and as appropriate, prevent the

introduction of, eradicate those alien species which threaten ecosystems, habitats or species. East

London and Port Elizabeth, both of which lie along the country’s southern coast, are important

commercial, industrial and cultural centers. 23The growth of the industrial areas leading to the

problems experienced in the South Africa urban ecosystem unsustainability.

The main focus of the drafters of the South African Constitution was the direct injustices created

by the previous dispensation. Consequently, poverty and the lack of political rights were at the

forefront of debate, while the environmental issues were relegated to the backseat of the

discussion.24 South Africa constitution Section 24, gives the right to an environment that is not

harmful to wellbeing, and calls on the government to take legislative and other actions to prevent

ecological degradation, promote conservation and secure ecologically sustainable

development.25The efficacy of this laws have been a challenge and urban ecosystem is becoming

worse every day in South Africa

Kenya is part of Eastern Africa the territory it has human habitation since the beginning of

the Lower Paleolithic.26 In the 1st century CE, many people had migrated to urban areas for

purposes of carrying out the trade such this areas were for example Mombasa, Nairobi and

Kisumu. It began first to establish trade relations which led to rapid growth in economic
Rights. Law Env't & Dev. J., 5, 58.
22
Potgieter, L. J., Douwes, E., Gaertner, M., Measey, J., Paap, T., & Richardson, D. M. (2020). Biological invasions
in South Africa’s urban ecosystems: patterns, processes, impacts and management. Biological Invasions in South
Africa, 14, 275.
23
Griffiths, C. L., Robinson, T. B., Lange, L., & Mead, A. (2010). Marine biodiversity in South Africa: an
evaluation of current states of knowledge. PloS one, 5(8), e12008.
24
Blackmore, A. C. (2018). Rediscovering the origins and inclusion of the public trust doctrine in South African
environmental law: A speculative analysis. Review of European, Comparative & International Environmental
Law, 27(2), 187-198.
25
Du Plessis, A. (2018). The promise of ‘well-being’in Section 24 of the Constitution of South Africa. South
African Journal on Human Rights, 34(2), 191-208.
26
Cole, S. (1954). The Prehistory of East Africa. American Anthropologist, 56(6), 1026-1050

8
activities there was cultural diffusion e.g. in Mombasa due to Arabic and Bantu language people

interacted through trade and settled in the areas around coastal making it densely populated area.

Kenya government had the responsibility of establishing governance structures in order to ensure

the development at all levels.27 The change in urban governance over the years from British rule

to the coming of the democracy where blacks started to be involved in the government the core

problems of urban development was still not addressed. 28 Environmental, economic, social and

governance dimensions the problems were interrelated which built up the urban ecosystem. 29

Over the years, the government has failed to recognize the growth and proliferation of slums and

has thus excluded them from the rest of the city’s development plan.

African Charter on Human and People's Rights, 1981 treaty was first established in East Africa

in 1999. Kenya, Environmental laws were not adopted in the old constitution 1964, as the time

progressed were groups that came to combat the Environment condition in Kenya. 30 The courts

developed the law due to number of cases presented. In the 2010 Constitution of Kenya the

adopted the charter on Rights to clean Environment like its neighbor Tanzania.

1.2 Statement of the problem.

Whereas, Environment laws was adopted in 2010 Article 42, 69, 70 and 71 Constitution of

Kenya. It addressed following issues, first under article 42 every person has the right to a clean

and healthy environment. Which includes the right to the environment protected for the benefit

of present and future generations through legislative and other measures, particularly those
27
Khaunya, M. F., & Wawire, B. P. (2015). Devolved governance in Kenya; is it a false start in democratic
decentralization for development.
28
Global Campaign on Urban Governance. (2002). Local Democracy and Decentralization in East and Southern
Africa: Experiences from Uganda, Kenya, Botswana, Tanzania, and Ethiopia. Un-habitat.
29
Mutisya, E., & Yarime, M. (2014). Moving towards urban sustainability in Kenya: a framework for integration of
environmental, economic, social and governance dimensions. Sustainability science, 9, 205-215.
30
Boyd, D. R. (2011). The environmental rights revolution: a global study of constitutions, human rights, and the
environment. UBC Press.

9
 contemplated in Article 69 e.g. Ensure sustainable exploitation, utilization, management and

conservation of the environment and natural resources and ensure equitable and sharing of

accruing benefits. Thirdly, enforcement of the environment laws and lastly agreements relating

on natural resources.

However, the reality on the ground social economic environment, natural environment and built

environment spheres, it has become difficult to balance due to non-unenforceability of the

principles of the environment law. Innovative approach is providing the resilience and function

of urban ecosystems sustainability. The problem is very serious Urban ecosystem sustainability

today is an issue if not addressed can lead to endangering of the species due to inadequate water

supply, wastewater, solid waste, and energy, loss of green and natural spaces, urban sprawl and

pollution of soil, air, traffic and noise. There are a lot of gaps on the urban ecosystem

sustainability which are the on knowledge of biodiversity and ecosystem conservation due to

limitations of environment laws effectiveness. The urban ecosystem sustainability and efficacy

on environment laws, it objectives is to ensure that governance mechanisms balance use of

natural resources with their conservation and management.

Research Objective.

The research of objective of this study;

i. To examine the efficacy of the Environment institutional legal frame work in management of

urban ecosystem sustainability in Kenya.

ii. To determine the environment penalties available in achieving urban ecosystem sustainability in

Kenya.

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iii. To find out the efficacy of the Environment policy making mechanism in understanding urban

ecosystem sustainability in Kenya.

1.4 Research question.

The research questions of the study;

i. What is the efficacy of the Environment institutional legal frame work management of urban

ecosystem sustainability in Kenya?

ii. To what extent are environment penalties available help in achieving urban ecosystem

sustainability in Kenya?

iii. How have the Environment policy making mechanism helped in the broad understanding of the

urban ecosystem sustainability in Kenya?

1.5 Justification of the study.

The research problem is on the urban ecosystem sustainability this is global demographic

transition has enormous environmental, economic, and social consequences that are not yet fully

understood. The lack of understating have led to the in balance and a great risk to the future

11
generations. The policies have been formulated on environment that contribute to improvement

of the urban ecosystem and achieve the intended objective. Justification on the knowledge gap is

that many scholars have conducted the effects of the urban ecosystem sustainability .The efficacy

of the environment laws on urban ecosystem have not been studied .The effectiveness of the

environment laws help solve serious problems in the society.

The policies have been formulated and efficacy of the environment law gives the meaning that if

people respect the laws or not. Better legislation can lead to efficacy of environment laws

towards achieving urban ecosystem by it being cost-effective, equitable, politically acceptable,

and optimal. The research method to be used is doctrinal method. I will use statutes and

regulations that already in place. The concept of urban ecology sustainability first appeared in a

1984 report by the United Nations Educational, Scientific, and Cultural Organization’s

(UNESCO) Man and Biosphere Program. The dynamic heterogeneity approach is a useful tool

that help in enhancing ecological integration and exploring the interactions between social and

biophysical patterns and processes in urban ecosystems sustainability.

1.6 Significance of the Study.

The research will be able to provide insight to the major parties that will able to profit from the

study .The legislators are among the people that will benefit from the study ,they will be able to

learn the pitfalls in the urban ecosystem sustainability, make the policies ,regulate, authorize and

make sanctions. The executive will gain out of the study it will helps in funding the urban

ecosystem to ensure the future .It will help in improvement of the design and green initiatives to

ensure balance of the urban spheres. The will judiciary gain by ensuring that there is compliance

and the enforcement of the environment laws.

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 The study will help the society gain in improvement on how they handle the urban ecosystem

spheres for the purposes of present and future generation. The urban ecosystem affects the

community stability, health and social relationships. The last but not least the scholars will

benefit from the study, it will allow them explore the gaps in the urban ecosystem sustainability

and be part of problem solvers.

1.7 Scope of the study.

The study will be carried out in Kenya. To address the issues on urban ecosystem sustainability

as it is specified in the Kenya constitution article 42, 69, 70 and 71.This study will take place

from January to August 2023. The scope by content is that I will be analyzing the efficacy of the

environment laws in urban ecosystem sustainability in Kenya.

The method that will be used to conduct the research is the doctrinal method from the start to the

conclusion of the research period. The design that will be used is content analysis design,

document analysis checklist and research log. The two theories to be used to conduct the study

will be have dependent variables and independent variables will be both addressed. The theories

are cooperate responsibility theory and green economics theory.

1.8Assumption of the study.

The assumptions of the study;

i. That if the issue of the urban ecosystem sustainability is not addressed, there will be no future in

the urban areas.

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 ii. That the secondary data used is authentic.

iii. That the large population in the cities have no knowledge and understating, on the urban

ecosystem and government made policies.

1.9 Literature Review.

In this study, the researcher will review in regards to the efficacy of the Environment Laws in

Kenya. The literature review will be from the various articles, publications, books and journals

on the topic of study. The review will be able to identify the gaps and loopholes that are there in

the interested area of study.

1.9.1 Environment laws.

In colonial heritage the systems was based on the exploitation and the removal of the natural

resources.31 The implementation of measures for sustainable urban environmental conditions

allow success in social and economic sustainability as well. Therefore planning, management

and policy-making must be conducted in such a way as to ensure healthy economic growth,

citizen satisfaction and adequate maintenance, development and redevelopment of

infrastructure32

The policies made by the colonial regime was in the benefit of the few who were the British

colonizers. International and legal bodies begun to develop the concepts on the Rights to the

environment and clean environment which led to Kenya constitutionalism of environment

laws.33African Charter on Human and Peoples Rights was the first document to be established

31
Domínguez, L., & Luoma, C. (2020). Decolonising conservation policy: How colonial land and conservation
ideologies persist and perpetuate indigenous injustices at the expense of the environment. Land, 9(3), 65
32
Alias, N. A., & Hashim, H. S. (2016). House crow presence as unsustainable urban indicator. International
Journal of the Malay World and Civilization (Iman), 4(2016), 59-65.
33
May, J. R., & Daly, E. (2015). Global environmental constitutionalism. Cambridge University Press.

14
 34
which dealt with third Generation Rights in 1981. It further went ahead and established East

Africa Community in 1999 which went ahead and established the Council Minsters. It duties was

to issue directives, make regulations, make recommendations and give opinions which are

binding to the East Africa states and becomes the part of the East Africa Environment laws. 35

Kenya, experiences high level of poverty, poor economic performance and land degradation
36
which led to emergence of urban centers Environment decision-making involves delicate

balancing, the three-part dilemma on how to maintain environmental integrity, while reasonably

meeting socio-economic needs including security, poverty and food by mitigating and

reasonably facilitating the business and industry necessary for economic progress and

prosperity.37

The emergence of the environment democracy in Kenya was experienced in constitution. 38 It

recognizes right of all whose daily lives are affected by the quality of the environment to

participate in environmental decision-making as freely as they do in other public interest matters

such as education, health care, finance and government. 39 The Constitution of Kenya at Article

69 [1] [d] however, encourages public participation in the management of the environment. In

order to allow the efficacy of the Environment laws Kenya dealt with Environment cases in court

with led to formation of the legislation that deals with urban ecosystem sustainability,

Environmental Management and Coordination Act 1999. Sustainability is the meeting of the

34
Larkin, J. B. (2011). The Evolution of Constitutional Environmental Law in Kenya. Kentucky Journal of Equine,
Agriculture, & Natural Resources Law, 3(2), 6.
35
Odhiambo, W., & Kamau, P. (2003). Public procurement: lessons from Kenya, Tanzania and Uganda.
36
Kahl, C. H. (1998). Population growth, environmental degradation, and state-sponsored violence: The case of
Kenya, 1991-93. International Security, 23(2), 80-119.
37
Kibugi, R. (2011). Development and the balancing of interests in Kenya. The balancing of interests in
environmental law in Africa, 169.
38
Cottrell, J., & Ghai, Y. (2007). Constitution making and democratization in Kenya (2000–
2005). Democratisation, 14(1), 1-25.
39
Boyd, D. R. (2011). The environmental rights revolution: a global study of constitutions, human rights, and the
environment. UBC Press.

15
needs of the present generation without compromising the ability of future generations to meet

their needs by maintaining the carrying capacity of the supporting ecosystems it is dealt with

under section 3 [5] of Environment Management and Coordination Act.

The body that is in charge of enforcing Environment Management and Coordination Act 1999 is

called NEMA. It have other mandates subsidiary legislation includes water quality, waste

management, controlled substances, biodiversity, wetland, river and seashore, and environmental

impact assessment (EIA) regulations.40In Kenya also we have Urban Areas Act 2011 which gave

effect through the Article 184 of the constitution 2010 .The act gives the structure for

governance and the management of the urban areas.41

1.9.2. Urban Ecosystem Unsustainability.

The urban areas, as a complex and open system, performs a variety of Kenya important

functions, such as social, political and economic. All the natural recourses which include water,

food, energy and fertile land are the basis for populations’ existence and prosperity, however, is

dependent on humanity’s consumption rates.42 The concept on the urban ecosystem sustainability

it is characterized by the by a distinctive system of individual elements and functions which

combine structural components. Urban ecosystems include blue and green spaces, such as parks,

cemeteries, yards, gardens, forests, swamps, rivers, lakes and ponds.43

40
Barczewski, B. (2013). How well do environmental regulations work in Kenya? a case study of the Thika highway
improvement project. Center for Sustainable Urban Development.
41
Muthama, N. J. (2019). Towards an Indicator Framework for Sustainable Cities in Kenya: A Theoretical and
Methodological Overview. Sustainable Development in Africa: Concepts and Methodological Approaches, 5, 45.
42
Morey, B., Deshkar, S., Sukhwani, V., Mitra, P., Shaw, R., Mitra, B. K., ... & Das, A. K. (2022). Towards
Circulating and Ecological Sphere in Urban Areas: An Indicator-Based Framework for Food-Energy-Water Security
Assessment in Nagpur, India. Sustainability, 14(13), 8123.
43
Rees, W., & Wackernagel, M. (2008). Urban ecological footprints: why cities cannot be sustainable—and why
they are a key to sustainability. Urban ecology: an international perspective on the interaction between humans and
nature, 537-555.

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The management of the urban ecosystem it allows the sustainability. The United Nations defines

sustainable development as a development that meets the needs of the present human population

without compromising the ability of future generations to meet their needs. It is a long-term

economic and environmental stability that can be reached while integrating each of the social,

economic and environmental elements into the decision-making process attainable development.

Therefore, the urban ecosystem is represented as a synthesis of green and built infrastructure. In

length of time, the components of the urban ecosystems have been expanded assigning a

biological complex by human population and its’ demographic characteristics, institutional

structures, social and economic tools and physical complex by buildings, networks of transport,

modified surfaces, environmental changes, energy consumption and the import of materials,

transformation and export of waste, pollution and excess heat.

To achieve the sustainability in the urban ecosystem the principles have to be a key

factor.44 According to the United Nations, a number of cities are already struggling with

environmental degradation, traffic congestion, lack of urban infrastructure and basic services,

such as water supply, sanitation and waste management. Inadequate sustainability which

promotes industrial growth, the pursuit of a better life and its’ results are not only damaging to

the natural ecosystem, but also pose a threat to human health and determine climate change. 45 In

the coming years the problem on urban ecosystem sustainability management it will have to

bring about the disasters if not looked at. 46 “The future of humanity lies in cities Weak cities will

44
Lindsey, T. C. (2011). Sustainable principles: common values for achieving sustainability. Journal of Cleaner
Production, 19(5), 561-565.
45
Shrivastava, P., & Berger, S. (2010). Sustainability principles: A review and directions. Organization
Management Journal, 7(4), 246-261.
46
Wu, J. (2014). Urban ecology and sustainability: The state-of-the-science and future directions. Landscape and
urban planning, 125, 209-221.

17
almost certainly act as a brake on national development. Strong cities can be a key factor

enabling a country to thrive in the global economy” (Annan, 2002).

1.9.3 Efficacy of the environment institutional legal framework in management of urban

ecosystem unsustainability in Kenya.

The environment legal framework when it comes to the urban ecosystem unsustainability, it is an

agenda which the government have to balance the people’s welfare and the economic growth .It

is by controlling the human being and activities that may bring concern to the urban ecosystem.

Adaptive governance it is the most important form of the environment governance that help in

management and the coordination of the urban ecosystem resources. The environment institution

it is guided by the design principles this are the existence of the economically autonomous,

well-funded, technically qualified regulatory agency and independent. Second it is the

regulatory mechanism and the accountability mechanism to prevent favorism.

The regulatory mechanism of the environment institution to allow management of the urban

ecosystem, it has led to the efficacy when it comes to production. Globally, China relationship

between environmental policy and total factor productivity has led to negative and positive

factors. The mandatory environmental regulation negatively impacts the total factor productivity

of the industry.47 Likewise, the additional cost due to increased environmental regulation

intensity adversely affects the total factor productivity in the short term. 48 In the production

process of enterprises, when environmental regulation improves the environmental performance,

it will inevitably affect the activities such as resource redistribution, capital investment, and

47
Gray, W. B., and Shadbegian, R. J. (2003). Plant Vintage, Technology, and Environmental Regulation Journal of
Environmental Economy Management 46, 384–402. doi:10.1016/S0095-0696(03)00031-7
48
Lanoie, P., Patry, M., and Lajeunesse, P. (2008). Environmental Regulation and Productivity: Testing the Porter
Hypothesis. Journal of Productivity Analysis 30, 121–128. doi:10.1007/S11123-008-0108-4

18
technological innovation, and ultimately affect the total factor productivity in the urban areas

including Kenya.49

Secondly, the environment institution it is guided by the design principles this are the existence

of the economically autonomous, well-funded, technically qualified regulatory agency and

independent. Regionally, South Africa environment institution funding it is one of the problem

leading to urban ecosystem unsustainability .The World Bank environmental deterioration and

the carbon are at 50% more than during the industrial period. 50. South Africa in order to cub the

issue on the urban ecosystem it have it policies on financial development. 51When it comes to this

factor and other less developing countries including Kenya leading to the lack of the efficacy in

the independent and well-funded environment institutions legal frame work on the urban

ecosystem sustainability due to increased finances directed investments leading to degradation. 52

Lastly is accountability by the environment legal institution it have Clear responsibilities and

mandates, Transparency, Political oversight, Citizen control and Checks and sanctions against

caused or is likely to cause a personal injury. The efficacy on the environment laws in Kenya is

not achieved, when deciding environmental matters the court is obliged to be guided by

principles of sustainable development which include public participation. 53 Public participation

allows the efficacy on the environment laws in development of policies, plans and process in

49
Rubashkina, Y., Galeotti, M., and Verdolini, E. (2015). Environmental Regulation and Competitiveness:
Empirical Evidence on the Porter Hypothesis from European Manufacturing Sectors. Energy Policy 83, 288–300.
doi:10.1016/j.enpol.2015.02.014
50
Hamilton, K., & Clemens, M. (1999). Genuine savings rates in developing countries. The World Bank Economic
Review, 13(2), 333-356.
51
Nasir MA, Huynh TLD, Tram HTX (2019) Role of financial development, economic growth & foreign direct
investment in driving climate change: a case of emerging ASEAN. J Environ Manag 242:131–14
52
Adebayo TS, Odugbesan JA (2021) Modeling CO2 emissions in South Africa: empirical evidence from ARDL
based bounds and wavelet coherence techniques. Environ Sci Pollut Res 28(8):9377–9389
53
M Muriithi, P., & Wachira, B. (2021). Enhancing Public Participation for Effective Management and Protection of
Environmental Resources in Kenya. Journal of Conflict Management & Sustainable Development, 6(4).

19
management of environment public participation is decentralization, de-concentration and

devolution of decision-making and implementation power.54

1.9.4 Efficacy of Environment policy making mechanism in understanding urban

ecosystem unsustainability in Kenya.

Demonstration programs have been widely adopted by policymakers and proved to be a

necessary and effective tool to achieve designed urban ecosystem sustainability policy goals at

the lowest cost.55 In order to make a policy there should be identification first is the problem

emergence, secondly agenda setting, third is consideration of policy options, fourth decision-

making, fifth implementation, and lastly evaluation. 56 The policy makers always look for the

favorable course of action based on environment specialist advice, make the policy, next they

hand it on to administrators to be implemented. .

Governments and persons make the choices based on the benefit they will get and cost that might

be incurred hence allowing the decisions on others outside of their decision making on

addressing the urban ecosystem sustainability.57 These decision making mechanism have been

can be experienced across a wide range of geographic scales, from impacts that they create

locally to those that span the globe. Actors within the economy, even those with good motives,

are unlikely to undertake decisions that completely attend to these policies that are no goal

oriented absent some form of government intervention that lead to excessive levels of

environmental degradation leading to urban ecosystem unsustainability.

54
Mercy, E. A., Michura, E. G., & Ndege, A. Promotion of Efficacy in the Regulation of Noise Pollution in Kenya
through Devolution and Public Participation.
55
Wang, Q., & Yi, H. (2021). New energy demonstration program and China's urban green economic growth: Do
regional characteristics make a difference?. Energy Policy, 151, 112161.
56
Teisman, G. R. (2000). Models for research into decision‐makingprocesses: on phases, streams and decision ‐
making rounds. Public administration, 78(4), 937-956.
57
McCann, L. (2013). Transaction costs and environmental policy design. Ecological Economics, 88, 253-262.

20
Policy instruments that are not based on price they accomplish the decisions made codify into

law and regulatory statutes restrictions on environmentally damaging behaviors in urban

ecosystem. 58The policies that are based on price use the market to environmental harms and

hence they are avoided all way possible due to this factor there are disadvantages and advantages

in policy making.

The gaps on the urban ecosystem is that many ecological practitioners and researchers is that

policies are often developed without sound evidence from the research and not used it affects

decision-making.59 Globally, China Henan province have problem with the policy system of the

talent introduction, construction various innovative works allow talent development, and give

priority to the talent introduction work, so as to form a good atmosphere in the society and then

enhance the attraction of Henan province have problem in laying good talent foundation. 60 To

improve the urban ecological efficiency this problem can be dealt with through evidence for

decision making and policies to be formulated.

Policy instrument features on local governments' passive acceptance of the superior's

commands and regulations.61 In China when using these policy instruments, central government

typically enact them through various laws and regulations, such as Renewable Energy

Development Law (2009) and Guidance Catalog for Renewable Energy Industry Development

(2013). In order for the policies to be understood the guidance and restrictions on how to develop

58
Hahn, R. W., & Stavins, R. N. (1991). Incentive-based environmental regulation: A new era from an old idea.
Ecology LQ, 18, 1.
59
Sutherland, W. J., ARMSTRONG‐BROWN, S. U. S. A. N., Armsworth, P. R., Tom, B., Brickland, J., Campbell,
C. D., ... & Watkinson, A. R. (2006). The identification of 100 ecological questions of high policy relevance in the
UK. Journal of applied ecology, 43(4), 617-627.
60
Bai, X. (2016). Eight energy and material flow characteristics of urban ecosystems. Ambio, 45(7), 819-830.
61
Wang, Q., & Yi, H. (2021). New energy demonstration program and China's urban green economic growth: Do
regional characteristics make a difference?. Energy Policy, 151, 112161.

21
new energy it is key factor that should be provided by policy makers. 62 Setting energy

consumption and carbon reduction targets for local governments and relevant enterprises, the

short-term goals set by central government can be fulfilled. 63 Implementing central policies every

citizen is able to be aware and understand the urban ecosystem sustainability policies.

1.9.5 Efficacy of environment penalties in achieving urban ecosystem unsustainability in

Kenya.

The enforcement of environmental laws have done through many change over the years. When it

comes to the criminal and civil matters in the environment offences penalties have been imposed.

The incarceration have not only been imposed but also sentencing have become another

punishment that the court can give to a violator. 64 Despite this trend toward increased use of

individual sanctions in the form of fines or incarceration, the efficiency implications of this trend

have received little attention. In circumstances where an employee have committed an offence

there is an act of vicarious liability that show that the firm is on that liable of the act committed.

NEMA have already acted upon the enforcement options at its disposal as set out in various

provisions of the Environment coordination and management Act. 65 NEMA, it has issued a

permission of issuing of the penalties to the persons that violated the environment laws. Section

72 of the Environment Coordination and management Act t any person who is found guilty over

the offence of emission of wastes into aquatic environment is liable to an imprisonment for two

years or a fine of 2 million shillings or also it can be both. Another penalty is of polluter pays

62
Dincer, I. (2000). Renewable energy and sustainable development: a crucial review. Renewable and sustainable
energy reviews, 4(2), 157-175.
63
Tsang, S., & Kolk, A. (2010). The evolution of Chinese policies and governance structures on environment,
energy and climate. Environmental Policy and Governance, 20(3), 180-196.
64
Segerson, K., & Tietenberg, T. (1992). The structure of penalties in environmental enforcement: an economic
analysis. Journal of Environmental Economics and Management, 23(2), 179-200.
65
Muniafu, M., & Otiato, E. (2010). Solid Waste Management in Nairobi, Kenya. A case for emerging
economies. Journal of Language, Technology & Entrepreneurship in Africa, 2(1), 342-350.

22
principle where the violator have to make the payment for the cost of removal of toxic matter

and cost of returning the environment to it original condition before the violation the person is 2

years imprisonment or a fine of 500,000 shillings or both. 66 The removal of toxic substances is

on his cost also the third part can take person to the court for damages, restitution and restoration

.NEMA requires to act prosecution in order to achieve efficient environment laws to solve the

problem ecosystem unsustainability.

The court of law punishment imposed must of deterrents to avoid such violation from recurring

allowing people also to learn from the already passed judgments. Secondly, Section 57 of the

Environment Coordination and Management Act 1999 fiscal incentives and disincentives may

also be used to induce or promote the proper management of the environment. Tax incentives

may include rebates to industries or other establishments that invest in plants, equipment and

machinery for pollution control, recycling of wastes, water harvesting and conservation. There is

also the option of tax disincentives that prevent people from the environmental behaviors

environment that lead to the cause of the pollution by this it allows the act of complying with

environment regulations.67 An introduction of the user fee it is another option of regulating the

pollution in the urban areas.

Thirdly, compliance can be achieved through accountability by looking at the environment

through auditing and carrying out assessment.68 Environmental impact assessments enable the

authority to ensure that any development projects proposed to be carried out are of no negative

impact in urban areas before the construction take place. Section 68 of the Environment

66
Omedo, G., Muigua, K., & Mulwa, R. (2020). Financing Environmental Management in Kenya's Extractive
Industry: The Place of the Polluter Pays Principle. Law Env't & Dev. J., 16, 1.
67
Mitchell, R. B., & Mitchell, R. B. (1994). Intentional oil pollution at sea: environmental policy and treaty
compliance. mit Press.
68
Muigua, K. (2023). Enforcing the Right to Clean and Healthy Environment in Kenya through the Polluter Pays
principle.

23
coordination and management Act 1999, NEMA is responsible for carrying out of environmental

audits through its inspectors, of all activities that are likely to have a significant effect on the

environment. Self-regulation is another important enforcement that has come up recently. The

EMCA under section 68 provides that the owner of premises shall make annual reports to

NEMA describing how far the project conforms with the statements made in the

Environmental .Section 58 EMCA report on assessment shall take all reasonable measures to

mitigate undesirable effects on the environment. Making it sustainable. The environment

penalties have to be a key factor to a sustainable urban ecosystem.

1.10 Theoretical Frame Work.

The researcher in this case study will be able to use the two theories that will back up the

findings. This particular study will be legal Positive theory and sustainability theory.

1.10.1 Legal Positivism Theory.

Legal positivism is the thesis that the existence and content of law depends on social facts and

not on its merits it was formulated by English jurist John Austin (1790–1859). 69 Society has a

legal system depends on the presence of certain structures of governance, not on the extent to

which it satisfies ideals of justice, democracy, or the rule of law, society depend on the laws that

have been ordered.70 Every human beings in society has some form of social order, some way of

marking and encouraging approved behavior, deterring disapproved behavior, and resolving

disputes about that behavior this lead to the formulation of the laws that can run the society. The

field of study Legal positivism look at environment laws that have made to attain urban

ecosystem sustainability and whether they are of any impact to accomplish the mandate.
69
Coleman, J. L., & Leiter, B. (2010). Legal positivism. A companion to philosophy of law and legal theory, 228-
248.
70
Green, L., & Adams, T. (2003). Legal positivism.

24
1.10.2 Sustainability Theory.

At the start of the 1970s the term sustainable development was adopted by Barbara Ward,
71
founder of the International Institute for Environment and Development. The roots of issues

related to the interaction between development and sustainability it would be a good starting of

evolution due to explosion of the population, people have departed from traditions to white collar

jobs and people are shifting to urban centers for collar jobs becoming denser. 72It is divided to

three approaches, the first approach is, and weak sustainability disregards specific obligations to

sustain any particular good.73 The second approach is called strong sustainability view gives that

human systems depend on rich biodiversity strong sustainability allow human to benefit from the
74
environment but the perspective of future is at upper hand. The third approach, pragmatic

middle view holds that, while we may not have obligations to sustain any particular ecological

process neither should we assume that all future opportunities can be measured against one

another.75

CONCEPTUAL FRAMEWORK

Independent Variables Dependent Variable

ENVIROMENT LAW

71
Satterthwaite, D. (2006). Barbara ward and the origins of sustainable development (pp. 1-76). London, UK:
International Institute for Environment and Development (IIED).
72
Du Pisani, J. A. (2006). Sustainable development–historical roots of the concept. Environmental sciences, 3(2),
83-96.
73
Gutés, M. C. (1996). The concept of weak sustainability. Ecological economics, 17(3), 147-156.
74
Ott, K. (2003). The case for strong sustainability. Greifswald’s environmental ethics, 59-64.
75
York, J. G. (2009). Pragmatic sustainability: Translating environmental ethics into competitive advantage. Journal
of Business Ethics, 85, 97-109.

25

Policy making mechanism.

 Problem emergence.
 Institution legal frame work.

 Independence of the institution

and funding.
 Regulatory mechanism.
 Accountability mechanism.


URBAN ECOSYSTEM

UNSATAINABILITY.

 Lack of public

participation.

 Imbalance of natural
 Politics
environment and
 Finances built.

 Corruption.  Financial challenges.

(Intervening variables)

Figure 1; Conceptual Framework Source: Researcher, 2023

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27