Kenyan roads can be treacherous for travellers. Whilst you probably won’t be met by bandits, you will have challenges getting the necessary sanitary facilities to allow travellers to respond to the most basic calls of nature, as these are only available in petrol stations and public toilets, both of which require an access fee. Fortunately for road users in Kenya, the matter was brought to the attention of the Environment and Land Court (ELC) in Adrian Kamotho Njenga v Council of Governors & 3 others [2020] eKLR in which the Government was directed to draft a policy for the provision of toilets and other sanitation facilities along the country’s road networks. It is upon this background that The Kenya Roads (Roadside Stations) Regulations, 2023 (the Regulations) were formulated.
Snapshot of the Regulations
1. Scope
The Regulations provide for the development of roadside stations, which they define as “roadside developments established along a national road, containing facilities specified in the Second Schedule, for purposes of providing amenities for road users”. The facilities provided in the Second Schedule include sanitation facilities, restrooms, electric car charging points and convenience stores. It is worth noting that the above definition only refers to structures erected on “national roads”, which the Regulations define as “roads classified as ‘class S, A, B and C’ in the Classification and Register of Roads, 2016”.
2. Construction of Roadside Stations
The Regulations provide that the Kenya National Highways Authority, the Kenya Rural Roads Authority or the Kenya Urban Roads Authority (altogether the Relevant Authority) will determine the location of a roadside station based on factors like availability of land, the demand for utilization of the station and the distance between road stations, after which it will develop the roadside station either on its own or through public-private partnerships. Roadside stations may also be developed entirely by private entities or government agencies.
They further provide that any person intending to construct a roadside station is required to apply to the Relevant Authority, accompanied by a feasibility study, traffic study, approved architectural plans, environmental and social impact assessment and proof of land ownership. If the developer is a private person, they are also required to furnish proof of business registration, confirmation of business ownership and tax registration and compliance certificates. The Relevant Authority will then consider the application and issue a decision either approving or rejecting the development within twenty
days.
Standards for Roadside Stations
In addition to regulating the construction of roadside stations, the regulations also prescribe certain minimum standards. For starters, a roadside station will be required to operate on a 24-hour basis, have licenses for all services it provides and be adequately staffed to ensure high standards of service delivery. Further, the stations will be required to adhere to the health and safety standards applicable in the country and, at a minimum, will be required to provide hand washing stations, FREE, clean and adequate sanitation facilities, emergency response services and garbage disposal points. Finally, the stations will be required to designate spaces exclusively for explosives, ammunition, petroleum or any inflammable substance they classify as dangerous goods.
To ensure the stations comply with these standards, the Regulations provide that the National Transport and Safety Authority may conduct compliance checks at any roadside station subject to relevant laws. Further, the Relevant Authority may also order the inspection of a roadside station to ensure compliance and, subject to the inspection, either order its closure or suspend an operator’s license.
3. Incentives
Once a roadside station is compliant, it will be conferred with a “Roadside Station Status”. Upon
conferment, the operator must prominently display by ensuring the name “Roadside Station” appears conspicuously in or around the station. Presumably, in a bid to encourage private players to participate, the Regulations provide several incentives such as tax incentives, discounted business permits, access to infrastructure, convenient access to government services and garbage collection.
4. Transition
The Regulations, if gazetted, will require any person already providing facilities and services for road users along national roads and who intends to develop or operate the same facility as a roadside station to comply with the provisions of the Regulations within two years from the date of their coming into effect.
Impact of the Regulations
1. Social Impact
The most obvious impact of the Regulations will be the provision of free restrooms and sanitary stations, which was the matter in issue in the above-mentioned ELC case that prompted the drafting of the Regulations. The stations will, therefore, ensure that Kenyan road users enjoy their right to a clean and healthy environment as prescribed by the Constitution of Kenya. The roadside stations will also provide emergency response services that could be useful during road emergencies.
2. Economic Impact
The roadside stations provide a new revenue base for the government through the application fees, renewal fees and licensing fees required to operate the roadside stations. The businesses set up in the stations will also create a new tax base for the government.
Room for Improvement
1. Classification of Roadside Stations
The Second Schedule to the Regulations classifies roadside stations as either large, medium or small. The Regulations additionally specify the minimum acreage on which these stations may be erected, with the minimum acreage required to erect a station being 3 acres. Petrol stations which provide most of the services prescribed for these roadside stations are able to do so while being erected on a fraction of the minimum acreage required for roadside stations. This, coupled with the difficulty of obtaining such large tracts of land along the roads, makes the minimum acreage requirement seem unnecessary.
2. Fees
The prescribed fee for an application to develop a roadside station is KES. 20,000, while the annual license fee for operating a roadside station is KES. 100,000 in cities and municipalities and KES. 50,000 in all other areas. These fees are quite steep and could be revised downwards to enable more investors to participate in the development of the stations. The annual license fee, in particular, could do with revision as the return on investment for the roadside stations is currently unclear.
3.
Dangerous Goods
While the Regulations require roadside stations to be equipped with designated areas for dangerous goods, they do not prescribe the standards to be applicable to these designated areas. The Regulations could be amended in this respect to provide for matters such as minimum distance between these designated areas and other facilities and minimum fire safety and response facilities for the designated areas.