While the conservatory order is in place, it simply means that the implementation of the Extended Producer Responsibility Regulations, 2024 has come to a temporary pause until the filed petitions are determined or until the courts rule otherwise.

The National Environment Authority (NEMA) and any other organization are not allowed to apply, enforce, or implement these regulations. During this period a producer will not be penalized for not complying with these regulations.

Stay prepared. Industry is currently having negotiations with the government to agree on a way forward regarding a sustainable implementation of the EPR Regulations.

Therefore, ensure the following:

1. All your monthly declarations are up to date that will be used to process your monthly EPR fees to your PRO.
2. You have registered as a producer on the NEMA eCitizen portal. Issuance of Producer Registration Certificates is currently on hold with the current conservatory orders. The Authority will resume issuance after the court proceedings are finalized.
3. Your Import Product Declarations are ready for submission. Have all your product and packaging certifications ready for submission even as negotiations are underway;

Where possible, reach out to your suppliers to increase the packing sizes of your goods for importation.

The EPR regulations are on pause but the Sustainable Waste Management Act,2022 provides legal foundation for EPR in Kenya. Each Producer is still required to be responsible for the management of the entire life cycle of its products and packaging up until end-of-life treatment or disposal.

Section 13: Extended Producer Responsibility

1. Every producer shall bear extended producer responsibility obligations to reduce pollution and environmental impacts of the products they introduce into the Kenyan market and waste arising therefrom.
2. Every producer shall fulfill their extended producer responsibility obligations individually or collectively in a compliance scheme.
3. The Cabinet Secretary shall, within two years of the coming into operation of this Act make regulations on extended producer responsibility.

Legally NEMA has authority to demand that a producer demonstrate how they are managing their products and packaging until the end of life. Reference is made to The Sustainable Waste Management Act (SWM), 2022.

The Authority has the jurisdiction to carry out facility inspections to interrogate how Producers are implementing EPR as per Section 13 of the SWM Act. Each Producer is legally required to demonstrate their implementation of Section 13.

All PAKPRO members will be issued with:

1. FY 2025 Membership Certificate (make sure your membership registration is up to date);
2. Summarized EPR Plan showing how each packaging material is recovered and treated post-consumption;
3. Waste Recovery Report for all 2024 compliant (fully paid EPR fees) companies. The report describes the total volume your EPR fees have contributed to recovering all your packaging material from the environment in the previous financial year.

Section 30: Restoration

1. A person who fails to manage waste in accordance with this Act shall be required to clean up and restore the site where the waste was being managed to its natural state.
2. The Authority shall issue the person with a site restoration order if the person fails to clean up and restore the site in accordance with subsection (1).
3. A restoration order issued under this section shall be effected in accordance with the Environmental Management and Co-ordination Act, 1999 (No. 8 of 1999).

The Authority resumed its river inspections to determine whether any products and packaging material are found polluting the river catchment basin. Restoration Orders could be issued out at any point in time.

Producers are therefore expected to meet and stay up to date with their PRO contractual conditions as outlined in their collective scheme agreement.

Section 32: General Penalty

A person who contravenes a provision of this Act for which a penalty has not been prescribed shall, on conviction, be liable to a fine of not less than two million shillings and not more than four million shillings or to imprisonment for a term not exceeding four years or to both.

The import fee was a key point of contention, with concerns that it will negatively impact investment in the country by increasing the cost of goods and ultimately reducing production. The Law Society of Kenya filed a motion against the Government of Kenya citing public participation on this section was not undertaken and that there are indeed financial obligations that are being imposed on the Citizen of Kenya.

“Each importer of either raw materials, intermediate goods and finished goods would be required to pay KES 150 at the port of entry for each consignment.”

What is expected for Producers under the Extended Producer Responsibility Regulations, 2024

This regulation applies to producers, extended producer responsibility compliance schemes and the products set out in the First Schedule.

Obliged Producers:

If you’re introducing products or packaging into the Kenyan market, you’d fall within the scope of EPR.

According to Regulation 4, of the Extended Producer Responsibility (EPR) Regulations 2024, it states as follows:

“4. (1) These Regulations shall apply to—

1. producers.
2. extended producer responsibility compliance schemes. And
3. the products set out in the First Schedule.

2) These Regulations shall apply to products that produce waste that negatively impact the environment, human and animal health, due to the—

1. challenge they pose on—
   1. reuse.
   2. recyclability; and
   3. recoverability; and
2. high management cost of the products at post-consumer stage because of the—
   1. quantities involved.
   2. hazardous nature; and
   3. risks involved.”

If you are the sole producer of a particular product in the country, you have the option to establish your own individual Extended Producer Responsibility (EPR) scheme. Alternatively, you may choose to join a collective EPR scheme such as PAKPRO.

For any packaging materials or products that fall outside the scope of your Producer Responsibility Organisation’s (PRO’s) management, your PRO can engage another authorised PRO that specialises in the post-consumer management of those specific materials.

All applications for Producer Registration and EPR – Import Certificate are now done via the NEMA eCitizen portal.

• Turnaround time: Up to 21 days total:
  • The Authority must act within 14 days (approve, reject, or request more info),
  • The Authority must notify the applicant within 7 days after making the decision.
• Producer Registration:
  • One-time fee: KES 5,000 (paid via eCitizen)
• Issued Producer Registration Certificate,
• EPR Import Certificate:
  • Apply at point of import for every consignment using Form A (Second Schedule)
  • Producer Registration Certificate required
  • Pay applicable import product fee (see First Schedule).

The KES 150 import fee per item will be applied to your outermost or tertiary packaging. The fee will be charged per master carton box, rather than on the individual retail units contained within that carton.

The same principle applies to other forms of tertiary packaging, such as:

1. Shrink-wrapped pallets
2. Drums (used for liquids or raw materials)
3. Jumbo bags (Flexible Intermediate Bulk Containers – FIBC)
4. Bales
5. Or any other outermost packaging unit, where applicable

This approach ensures that the charge is levied per discrete shipping unit, as presented at the point of import.

Subject to how it is presented at port, the fee may apply per shipping container (e.g., per 20ft/40ft container) or per dunnage unit used to contain or transport the bulk (like a liner).

For oils that come in food-grade flexibags or flexitanks, in a 20ft or 40ft container may be considered as an item since that’s the bulk packaging unit at the point of entry.

The jurisdiction of EPR is within the Kenyan borders as long as those products are destined for the Kenyan market. If their final destination is to our neighbouring countries, then their regulations, if any, will apply to those goods.

If you can prove or provide evidence of this claim, then you can make early provision for applying for an exemption to NEMA and at their discretion, may or may not grant the exemption.

The principle that anchors EPR requires each producer to manage the entire life cycle of a product, its packaging and any waste arising thereof. The EPR Import Fee is meant to support the County and National Governments to manage the end – of life treatment of locally disposed off waste material that is unable to be reused, refurbished or recycled.

It is intended that the conservatory orders will enable negotiations between government and industry to align on a more sustainable approach at regulatory enforcement that encourages investment while promoting environmental stewardship.

You can only apply for the EPR Import Certificate once you have received the Producer Registration Certificate.

NEMA is in the process of doing this to ease the time and cost of doing business and will communicate the same once they’ve put such systems in place.