Kenya EPR regulations 2024: Legal Notice 176 makes every producer register, certify imports and fund a scheme

Kenya EPR regulations: what Legal Notice 176 contains and who it binds

The regulations run to 23 regulations and three schedules. Exhibit 2 sets out the dates that define the regime. The regulations are tracked as PR-KE-002 on the Kenya page of the SPI Regulation Tracker.

L.N. 62 of 2025 is short but telling. It deleted paragraph (p) of regulation 16(1), which let a scheme’s EPR plan be loaded with any other action requested by the Authority, and paragraph (d) of regulation 17, which let NEMA set any other obligations for PROs. It also requires the annual work plan and progress report in regulation 16(2) to reach NEMA within sixty days before the application for the annual operating licence. SPI analysis: the net effect is to fix the duties of schemes to what the text lists, and to put the work plan on a clock tied to the licence.

The scope clause has two limbs. Regulation 4(1) applies the regulations to producers, compliance schemes and the products in the First Schedule. Regulation 4(2) adds products whose waste harms the environment because it is hard to reuse, recycle or recover, or costly to manage after use. The first limb is what binds today; the second gives a basis for adding products later.

The First Schedule has five groups: packaging for non-hazardous products, made of plastics, metals, glass, paper and cardboard; packaging of hazardous products such as chemicals, fuels and lubricants, medicines, agrochemicals, veterinary products, cosmetics and paints, together with treated wood and agricultural films; electrical and electronic equipment, including batteries; end-of-life vehicles; and a group of non-packaging items from furniture to tyres, textiles, diapers and sanitary towels. NEMA’s 2026 FAQ adds a point many importers miss: packaging is treated as a product, so a producer declares both the generator and the box it came in.

Who is a producer: SPI's four-gate test

The Act’s definition is broad and has no threshold. SPI reads it, with regulation 4 and NEMA’s FAQ, as four gates (Exhibit 3). This is a planning framework drawn from the texts, not a legal reading; check edge cases with counsel.

Gate 1, the product. Two of the five groups catch almost all consumer packaging. A beverage bottler, a food brand or a cosmetics importer is in group one or two from its first unit. Agrochemical and paint suppliers sit in group two, alongside agricultural film.

Gate 2, the route. Seven routes and the brand owner are named. NEMA’s October 2026 FAQ says there is no difference between a manufacturer and a brand owner: both introduce products into the Kenyan market and both must account for their share to avoid double counting of EPR fees. For a screen-printed T-shirt or a contract-packed food, the advice is the same: map the value chain and agree who declares each unit. SPI’s comparison of EPR producer definitions shows that most EU, UK and US schemes allocate the duty to one party in a fixed order; Kenya leaves the split to the chain.

Gate 3, the market. NEMA’s 2026 FAQ says EPR applies to products introduced into the Kenyan market and that the regulations have no export certificate or fee. Imported goods that become waste in Kenya bring the producer’s responsibility with them.

Gate 4, no floor. This is the sharpest contrast with South Africa, where the paper and packaging notice catches only producers above 10 tonnes a year (SPI’s South Africa EPR piece). In Kenya a trader importing one pallet of packaged goods is a producer.

Two parties outside the definition still carry risk. A transporter or retailer is not a producer, but regulation 21(3) makes it an offence to introduce a product on behalf of a producer who is not in NEMA’s published register. The October 2026 FAQ adds that a producer that fails to pay PRO fees for three months is treated as non-compliant and reported to NEMA.

The ten producer duties

Regulation 5(1) is the core of the regulations (Exhibit 4). Regulation 8 lets a producer meet the duties individually or collectively, and regulation 8(3) closes the gap: the lack of an established compliance scheme does not exempt a producer from them.

The take-back duty is the one with the widest range. Regulation 5(1)(a) lets it include a deposit refund system, but Kenya has no statutory deposit law, and SPI’s Kenya data records voluntary refunds on returnable glass bottles that predate the regulations. NEMA’s October 2026 FAQ describes how money reaches collectors: producers publish a payment rate per product for collection services, paid directly to waste pickers at collection points or material recovery facilities.

Registration, import certificates and the forms

The regulations run on eight forms in the Second Schedule (Exhibit 5). Every application has the same regulator clock: 14 days to approve, ask for more particulars or reject, then 7 days to notify the applicant in writing.

Producer registration. A producer files Form C with its Registrar of Companies certificate, a list of the goods, products and packaging it deals in, and the fee (reg. 7). NEMA’s 2026 FAQ says registration is done on the NEMA eCitizen portal, is a one-time step and costs KSh 5,000. Regulation 23 gave producers already trading six months from commencement to apply, which SPI counts to 4 May 2025.

Import certificates. Regulation 6 makes the border the checkpoint. The importer pays the First Schedule fee at import and files Form A with the nature of the products, quantities and proof of payment; the Form B certificate then forms part of clearance and inspection documents. NEMA’s 2026 FAQ says the application goes through the KenTrade Trade Facilitation Platform, may be lodged by a clearing agent, needs a certificate for every consignment, and can only be made by an importer that already holds a producer registration certificate.

Own scheme or PRO: what each route files

Regulation 9 lets NEMA register individual schemes, run by one producer, and collective schemes, run by a PRO for several producers grouped by product similarity, use and waste type. The paperwork differs sharply (Exhibit 6).

The PRO list is demanding. It includes a certified register of members, copies of each member’s EPR registration certificate, agreements with approved waste service providers, the fee structure agreed among members, the EPR plan, a budget, signed minutes adopting the plan, an organogram, audited accounts, a dispute resolution mechanism and a memorandum of association declaring that the company’s sole business is EPR on behalf of its members (reg. 11(2)). On renewal it adds a progress report on targets, the annual EPR audit and an independent auditor’s report.

An individual scheme files less: a producer declaration, a conformity certificate, company registration, its EPR plan, agreements with waste service providers and proof of the fee (reg. 10). Approval of either route lasts at most four years and can be renewed if the scheme shows operational, technical, managerial and financial capacity (reg. 12).

Both routes then need an annual operating licence (reg. 14). The Form G application carries eight items: the previous year’s progress report, the list of directors, the certified member register, service provider agreements, the registration certificate, a work plan and budget for the coming year, proof of fees and a company resolution. NEMA issues the Form H licence only to schemes that meet performance standards and are in good standing.

Switching PROs. A producer can move between collective schemes only at the start of a contract year, with three months’ notice to its scheme, copied to NEMA (reg. 11(7)). SPI analysis: a producer unhappy with its PRO’s reworked fee in 2027 should diarise the notice date now, because missing it locks the producer in for another contract year.

The EPR plan: fifteen elements, one 100% rule

Every scheme submits a four-year EPR plan before registration (reg. 16(1)). After L.N. 62 of 2025, the plan has 15 required elements (Exhibit 7).

Paragraph (b) is the rule that does the work. A scheme must plan for one hundred per cent of the volume its members declare. Paragraph (c) refers to national targets for reuse, recycling and recovery, but neither the regulations nor NEMA’s 2026 FAQ state any figures. SPI’s Kenya data records an earlier NEMA FAQ, of 15 March 2025, telling PROs to collect 100% of what members introduce where no national target exists. In practice the target is set scheme by scheme; KEPRO’s plan for plastics, set out in SPI’s African EPR piece, runs to 75% collection by year 4.

How scheme fees are set: seven factors

Regulation 18 sets the rules for what members pay. Fees must be calculated on the same parameters for all members, but vary by producer according to seven factors (Exhibit 8). The collective scheme submits the agreed fee structure to NEMA (reg. 18(2)).

Two further clauses bind PROs. Regulation 18(3) requires a scheme to remit five per cent of the membership fees it collects to NEMA by 10 February each year, for monitoring, inspection and control audits, and regulation 18(4) puts that money in the Restoration Fund under section 25 of the Act. SPI notes that section 25 of the 2022 Act deals with incentives for waste management; SPI has not yet confirmed which fund the reference means.

The KSh 150 per item fee: three readings

The First Schedule sets KSh 150 per item against each of its five groups, and regulation 6 ties payment to the import certificate. What an item is has been read three ways in public (Exhibit 9).

NEMA’s own wording is the most recent. Its 2026 FAQ says: “Importers pay KSh 150 per item of a finished First Schedule product at the point of import.” That settles the agency’s position but not the dispute. The Standard reported on 24 March 2026 that a regulatory and compliance officer at the Kenya Association of Manufacturers had asked for the formula used to reach KSh 150, saying there had been no public participation on it, and that KEPRO’s chief executive warned a miscalculation could raise shelf prices of some essential goods by more than 300%. Both reports quoted a NEMA principal environment officer as saying nationwide stakeholder engagements were under way.

Reporting and the annual calendar

The reporting cycle is annual and fixed by date, not by approval anniversary (Exhibit 10). Regulation 19 requires each scheme to keep records of products managed, eco-design standards, contracts and performance; to feed updated data on quantities, recyclability, labels and traceability into NEMA’s reporting system; to file an annual report on the previous year by 31 January; and to report collected, recycled and treated volumes to county governments each year.

The licence adds a moving date. Since L.N. 62 of 2025, a PRO’s annual work plan and progress report must reach NEMA within sixty days before its licence application. For a PRO renewing its licence at the start of a calendar year, that puts the work plan in the last quarter of the previous year, the period in which members are asked for their volume forecasts.

Enforcement: from revocation to prosecution

SPI sets out the sanctions as a five-step ladder (Exhibit 11). The order is SPI’s; the powers are NEMA’s and the courts’ under the texts.

Regulation 21 lists the offences: a scheme or PRO that wilfully fails to carry out any obligation; a person who introduces a product on behalf of a producer missing from NEMA’s register; a producer or PRO that supplies false information on the quantities it holds or manages; and a free rider, a producer outside any PRO that does not meet its obligations individually. The regulations define a free rider widely, to include a producer that under-declares volumes and a scheme member that does not pay or reports inaccurately.

The court record is unsettled. The Nation reported that the Law Society of Kenya petitioned the court on 2 May and that the Milimani court issued temporary orders on 7 May suspending registration, volume declarations, the KSh 150 fee and penalties; SPI reads this as 2025. Citizen Digital reported on 24 March 2026 that a court had lifted conservatory orders, so firms must pay while the full case is heard. Streamline Feed reported on 16 July 2026 that the Retail Trade Association of Kenya had obtained a temporary injunction stopping NEMA from raiding, prosecuting or closing supermarkets over EPR non-compliance. SPI has not yet confirmed the case numbers, the rulings or which instruments each order covers.

Scenarios: what NEMA's 5% means for a PRO

Exhibit 12 shows how the regulation 18(3) remittance scales with a PRO’s membership income, using KEPRO’s published tiers and member count as the inputs.

By SPI’s calculation, even in the low case the remittance is 3.5 times the annual collective licence fee, so for any PRO of scale the 5% is the main payment to the regulator. Over a four-year approval, the base case remittance comes to KES 4,620,000, against KES 410,000 in statutory fees (Exhibit 1). SPI analysis: the remittance is levied on membership fees, so a PRO that moves cost from membership into a separate EPR fee changes the base; SPI has not yet confirmed whether NEMA reads the membership fee to include EPR fees.

How Kenya compares with South Africa

SPI published its South Africa EPR regulations piece on 3 November 2026. Exhibit 13 sets the two regimes side by side on design, not on cost; currencies are not compared.

The design difference is about where control sits. South Africa controls through targets and audited PRO performance; Kenya controls through registration, the border and an annual licence. SPI analysis: for a group selling into both, the Kenyan entity needs better unit data at import, while the South African entity needs better tonnage data by material class. SPI’s bag and film comparison covers the separate Kenyan licence for plastic film up to 250 microns.