Plastic bag ban in Kenya: Beware offences that could attract a Sh4 million fine

Kenya introduced its national plastic carrier bag ban on August 28, 2017, following Gazette Notice No. 2356 issued on February 28 of that year.

The ban was introduced to address environmental pollution caused by single-use plastic bags, which commonly ended up in drainage systems, rivers, agricultural land, open spaces and waste disposal sites.

The National Environment Management Authority (NEMA) was given responsibility for implementing and enforcing the restrictions.

The original notice targeted two categories of plastic bags used for commercial and household packaging: carrier bags and flat bags.

A carrier bag is constructed with handles, with or without gussets.

Flat bags are constructed without handles and can also have gussets.

Which plastic bags are prohibited?

The first category comprises ordinary plastic carrier bags, commonly known as juala, used by shops, supermarkets, markets and other retailers to package customers' purchases.

NEMA states that these carrier bags are completely prohibited, with no exemptions under its interpretation of the 2017 notice.

The second category covers flat plastic bags used for carrying items outside industrial settings, including ordinary grocery and household packaging.

The ban applies to their manufacture, importation and use for the prohibited commercial and household purposes.

Retailers, wholesalers, manufacturers, importers and ordinary users are expected to comply.

Small shops and informal businesses do not receive a general exemption simply because they operate on a small scale.

Are all plastic packaging materials banned?

No. Kenya's restrictions are not a blanket prohibition on every plastic product.

The 2017 notice specifically targeted plastic carrier and flat bags used for commercial and household packaging.

NEMA recognises exemptions for certain industrial primary packaging where the plastic comes into direct contact with a product at the point of manufacture.

Such packaging cannot simply be sold over a retail counter or distributed freely as an ordinary shopping bag.

The Authority also recognises specified exemptions for hazardous-waste liners, biomedical waste bags and garbage-bin liners, subject to labelling, waste-handling and extended producer responsibility requirements.

Manufacturers and users relying on these exemptions must obtain the appropriate NEMA clearance or authorisation and satisfy the applicable conditions.

What changed under the 2024 regulations?

Kenya introduced the Environmental Management and Co-ordination (Management and Control of Plastic Packaging Materials) Regulations, 2024, through Legal Notice No. 181 dated November 4, 2024.

The regulations extend environmental controls beyond the original shopping-bag restrictions to cover plastic packaging materials and plastic films, including packaging on imported products.

Regulation 6 prohibits the manufacture, importation, exportation, possession, use or sale of specified flat bags, plastic bags and plastic films without NEMA authorisation.

The Authority may authorise eligible industrial packaging and certain non-industrial packaging listed in the regulations' First Schedule.

Businesses seeking permission to manufacture, import, export, possess, use or sell regulated flat bags or plastic films must apply through NEMA, provide an extended producer responsibility plan and pay the prescribed application fee.

Licences issued under the regulations are valid for 12 months.

NEMA is required to determine an application within 21 days of receiving it, although it may request additional information or reject an application.

The regulations also require manufacturers, importers, exporters and users of plastic packaging materials to maintain records and submit annual returns.

Importers must declare the quantities and intended purpose of plastic packaging materials at the point of entry into Kenya.

What is extended producer responsibility?

Extended Producer Responsibility (EPR) requires businesses involved in producing, importing or using regulated packaging materials to take responsibility for the environmental impact of those materials throughout their life cycle.

Under the 2024 regulations, manufacturers, importers and users must develop and maintain an EPR plan covering the collection, reduction, reuse, recycling, recovery, treatment and disposal of plastic packaging waste.

Businesses can implement the plan individually, jointly or through a licensed Extended Producer Responsibility Organisation.

The regulations also introduce labelling requirements.

Plastic packaging offered for sale must carry the relevant producer or seller details and appropriate resin identification codes indicating whether the material is recyclable or non-recyclable.

These requirements are intended to improve traceability and encourage better management of plastic waste.

What are the penalties?

The penalties are substantial.

Under Regulation 24 of the 2024 rules, a person who manufactures, imports, exports, uses, sells, offers for sale or possesses a prohibited plastic carrier bag without a licence commits an offence.

Similar offences apply to dealing in plastic flat bags or plastic film products without the required authorisation.

The penalties are prescribed under Section 144 of the Environmental Management and Co-ordination Act.

A person convicted under the applicable provisions faces imprisonment of between one and four years, a fine ranging from Sh2 million to Sh4 million, or both.

The penalties apply following conviction.

An arrest, seizure or charge does not by itself establish guilt.

NEMA has renewed enforcement operations against illegal plastic bags, including businesses found importing, selling or possessing prohibited products.