Point in Time
Act No: No. 43 of 2016
Act Title: WATER
[ Date of commencement: 21st April, 2017 Except for:-(i) Sections 152 and 155;(ii)* Section 153 shall not commence in so far as it relates to the water services boards. ]
[ Date of assent: 31st August, 2016. ]
Arrangement of Sections
PART I — PRELIMINARY
1.
Short title and commencement

This Act may be cited as the Water Act, 2016 and shall come into operation on such a date as the Cabinet Secretary responsible for matters relating to water may, by notice in the Gazette, appoint, and different dates may be appointed for the coming into operation of different provisions.

2.
Interpretation

In this Act, unless the context otherwise requires—

"Authority" means the Water Resources Authority established under section 11;

"aquifer" means an underground geological formation able to store and yield water;

"basin area" means an area designated as such under section 24;

"basin water resources committee" means a water basin organization established under section 25;

"bulk water" means water supplied to a water services provider by the water services provider making the supply;

"Cabinet Secretary" means the Cabinet Secretary responsible for matters relating to water;

"catchment area" means an area that is part of a basin designated as such under section 22;

"charges" in relation to the use of water from a water resource, includes fees, levies and premiums of any kind;

"county government" means a county government as provided for under Chapter 11 of the Constitution Kenya;

"county government executive" means the county executive committee member responsible for matters relating to water;

"cross-county water services provider" means a water services provider providing water services to more than one county;

"easement" means the right to occupy so much of the land of another as may be necessary for or incidental to the construction or maintenance of works authorised, or the exercise of rights conferred by a permit;

"Equalisation Fund" means the Equalisation Fund provided for in Article 204 of the Constitution;

"Fund" means the Water Sector Trust Fund established in section 113;

"ground water" means the water of underground streams, channels, artesian basins, reservoirs, lakes and other bodies of water in the ground, and includes water in interstices below the water table;

"inspector" means a person appointed by the Cabinet Secretary, the Authority, a water basin resources committee, or the Regulatory Board, to exercise the powers of an inspector under this Act;

"in-stream habitat" includes the physical structure of a water resource and the associated vegetation in relation to the bed of the water course;

"international waters" means the ocean water beyond territorial waters:

"Land and Environment Court" means the Land and Environment Court as established under article 162 (2) of the Constitution;

"landholder" in relation to land, means the registered owner of the land or the person in whom the land is otherwise vested by law, and includes—

(a)

any person who by any established right, custom or estate is entitled to be the holder or possessor of land;

(b)

any person lawfully holding or occupying land in accordance with the provisions of any law empowering the allotment of land upon the promise of title, subject to the fulfilment by the allottee of prescribed conditions; and

(c)

any person to whom a mining lease or mining location has been granted under the Mining Act, 2016 (No. 12 of 2016);

"licence" means a licence in force under this Act;

"licensee" means a water service provider licensed by the Regulatory Board under this Act;

"limits of supply", in relation to a water undertaking, means the limits within which the licensee is for the time being authorised to supply water;

"Management Board" means the Board of the Authority established under section 14;

"management of water resources" means the development, augmentation, conservation or protection of a water resource;

"peri-urban water services" means services provided in peri-urban areas as shall be defined by the Regulatory Board from time to time;

"permit" means a permit for the time being in force under this Act;

"person" includes a company, association or other body of persons whether incorporated or unincorporated;

"pollution", in relation to a water resource, means any direct or indirect alteration of the physical, thermal, chemical or biological properties of the water resource so as to make it —

(a)

less fit for any beneficial purpose for which it is or is reasonably be expected to be used; or

(b)

harmful or potentially harmful to—

(i)

the welfare, health or safety of human beings;

(ii)

any aquatic or non-aquatic life or property; or

(iii)

the environment;

"public consultation", in relation to any application made, or action proposed to be taken under this Act, has the meaning assigned to it in section 139;

"reasonable water use" means the use of water without wastage;

"Regulatory Board" means the Water Services Regulatory Board established under section 70;

"reserve", in relation to a water resource, means that quantity and quality of water required—

(a)

to satisfy basic human needs for all people who are or may be supplied from the water resource; and

(b)

to protect aquatic ecosystems in order to secure ecologically sustainable development and use of the water resource;

"resource quality", in relation to a water resource, means the quality of all the aspects of a water resource including—

(a)

the water quality stipulated for the reserve;

(b)

the quantity, pattern, timing, water level and assurance of in-stream flow;

(c)

the physical, chemical and biological characteristics of the water:

(d)

the character and condition of the in-stream and riparian habitat; and

(e)

the characteristics, condition and distribution of the aquatic biota;

"resource quality objectives", in relation to a water resource, means the level to be achieved and maintained in each aspect of resource quality for the water resource;

"riparian habitat" means the dynamic complex of plant, animal and micro-organism communities and their non-living environment adjacent to and associated with a watercourse;

"rural water services" means services provided in rural areas as shall be defined by the Regulatory Board;

"Salaries and Remuneration Commission" means the Salaries and Remuneration Commission established under Article 230 of the Constitution;

"sanitation" means the provision of on-site sanitation services including latrines, septic tanks and conservancies including the associated exhauster services;

"sector wide approach" means coordinated development in the sector to achieve national goals, effectiveness of funds and ownership of government institutions including sector wide planning and coordination, national monitoring and information and national implementation concepts;

"sewerage services" means the development and management of infrastructure for transport, storage, treatment waste water originating from centralized and decentralized systems but shall not include household sanitation facilities;

"spring" means water emerging from beneath the surface of the ground other than as a result of drilling or excavation operations;

"state organ" has the meaning assigned in Article 260 of the Constitution;

“stream" means the water contained in a watercourse, and includes a river;

"supply of water in bulk" means a supply of water to a licensee for distribution by or on behalf of the licensee taking the supply;

"swamp" means any shallow depression in which water collects either intermittently or permanently and where there is a small depth of surface water or a shallow depth of ground water and a slight range of fluctuation either in the surface level of the water or of the ground water level so as to permit the growth of aquatic vegetation;

"transboundary waters" means water resources shared between Kenya and another State;

"urban water services" means services provided in urban areas as shall be defined by the Regulatory Board from time to time;

"use of water", in relation to a water resource includes, without any limitation to—

(a)

abstraction, obstruction, impoundment or diversion of water forming part of a water resource;

(b)

the discharge of materials or substances into a water resource or

(c)

any activity of a kind prescribed by Regulations under this Act, in relation to a water resource;

"watercourse" means any natural channel or depression in which water flows regularly or intermittently, unless declared not to be a watercourse under this Act;

"water resource" means any lake, pond, swamp, marsh, stream, watercourse, estuary, aquifer, artesian basin or other body of flowing or standing water, whether above or below the ground, and includes sea water and transboundary waters within the territorial jurisdiction of Kenya;

"water right" means the right to have access to water through a water permit;

"water resource management" means the conservation, including soil and water conservation, protection, development and utilization of water resources; and

"water services" means any services of or incidental to the supply or storage of water and includes the provision of sewerage services;

"water services provider" means a company, public benefits organization or other person providing water services under and in accordance with a licence issued by the Regulatory Board for the service areas defined by the licence;

"water storage" means a location or structure where water is stored for future use;

"Water Storage Authority" means the National Water Harvesting and Storage Authority established in section 30;

"Water Storage Board" means the Board of the National Water Harvesting and Storage Authority established under section 31;

"Water Strategy" means the Integrated National Water Services Strategy formulated by the Cabinet Secretary in section 64;

"water table" means —

(a)

impervious granular or detrital material, the upper surface of the body of free water which fills all openings in material that is sufficiently pervious to permit percolation; and

(b)

in fractured impervious rocks and in solution openings, the surface at the contact between the water body in the openings and the overlying ground air;

"water user" means a person using water from a water resource;

"water works development agencies" means the agencies of the national government established under section 65;

"works" means any structure, apparatus, contrivance, device or thing for storing, recharging, treating, carrying, conducting, providing or utilizing water or liquid waste, but does not include hand utensils or such other contrivances as may be prescribed by Regulations made under this Act.

3.
Purpose of the Act

The purpose of this Act is to provide for the regulation, management and development of water resources and water and sewerage services in line with the Constitution.

4.
Principles

The Cabinet Secretary, the Authority, the Regulatory Board, county governments and any person administering or applying this Act shall be guided by the principles and values set out in Articles 10, 43, 60 and 232 of the Constitution.

PART II — OWNERSHIP, USE AND MANAGEMENT OF WATER RESOURCES
5.
Ownership of water resources

Every water resource is vested in and held by the national government in trust for the people of Kenya.

6.
Regulation of the management and use of water resource

The Authority established in section 11 shall serve as an agent of the national government and regulate the management and use of water resources.

7.
Rights to water resources

Upon the commencement of this Act, no conveyance, lease or other instrument shall convey, assure, demise, transfer or vest in any person any property, right, interest or privilege in respect of any water resource except as may be prescribed under this Act.

8.
National Public Water Works
(1)

A national public water works means a water works which has been designated by the Cabinet Secretary, by notice published in the Gazette, as a national public water works based on the fact that—

(a)

the water resource on which it depends is of a cross county in nature;

(b)

it is financed out of the national government's share of national revenue pursuant to the provisions of the Public Finance Management Act, 2012 (No 18 of 2012);

(c)

it is intended to serve a function of the national government; or

(d)

it is intended to serve a function which by agreement between the national and county government, has been transferred to the national government.

(2)

National public water works include—

(a)

water storage;

(b)

water works for bulk distribution and provision of water services;

(c)

inter-basin water transfer facilities; and

(d)

reservoirs for impounding surface run-off and for regulating stream flows to synchronize them with water demand patterns which are of strategic or national importance.

(3)

A national public water works for domestic use shall, subject to the acquisition of a permit from the Authority in case of inter basin water transfer, take precedence over all other water works for the use of water or the drainage of land.

(4)

Subject to the Land Act, 2012 (No. 6 of 2012) land required for national public water works may be acquired in any manner provided by law for the acquisition of land for public purposes.

(5)

The Cabinet Secretary may, after reasonable notice to any landholder concerned, cause to be constructed and maintained upon any land such works as the Cabinet Secretary may consider necessary for the purposes of any national public water works.

(6)

Compensation on just terms shall be payable by the Government to the owner of the land on which any such works are constructed, but in assessing the amount of compensation payable, the Cabinet Secretary shall take into consideration any benefit accruing to the land by the construction of the works and any adverse effect on the land caused by the works, as the case may be.

(7)

The Cabinet Secretary shall make Regulations for the better carrying into effect of subsections (5) and (6).

9.
Administration of National Water Resources

Every person has the right to access water resources, whose administration is the function of the national government as stipulated in the Fourth Schedule to the Constitution.

10.
National Water Resource Strategy
(1)

The Cabinet Secretary shall, within one year of the commencement of this Act and every five years thereafter, following public participation, formulate a National Water Resource Strategy.

(2)

The object of the National Water Resource Strategy shall be to provide the Government's plans and programs for the protection, conservation, control and management of water resources.

(3)

The National Water Resource Strategy shall contain, among other things, details of —

(a)

existing water resources and their defined riparian areas;

(b)

measures for the protection, conservation, control and management of water resources and approved land use for the riparian area;

(c)

minimum water reserve levels at national and county levels;

(d)

institutional capacity for water research and technological development;

(e)

functional responsibility for national and county governments in relation to water resources management; and

(f)

any other matters the Cabinet Secretary considers necessary.

(4)

The Cabinet Secretary shall —

(a)

prepare and issue an annual report on the state of national water resource strategies in Kenya; and

(b)

may direct any lead agency to prepare and submit to it a report on the state of national water resources under the administration of that lead agency.

(5)

The Cabinet Secretary shall review the National Water Resource Strategy every three years.

PART III — REGULATION OF THE MANAGEMENT AND USE OF WATER RESOURCES
11.
Establishment of the Authority
(1)

There is established the Water Resources Authority.

(2)

The Authority is a body corporate with perpetual succession and a common seal and shall in its corporate name be capable of —

(a)

suing and being sued;

(b)

taking, purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; and

(c)

doing or performing all such other things or acts for the proper discharge of its functions under this Act and any other written law as may be lawfully done or performed by a body corporate.

12.
Functions of the Authority

The functions of the Authority are to —

(a)

formulate and enforce standards, procedures and Regulations for the management and use of water resources and flood mitigation;

(b)

regulate the management and use of water resources;

(c)

enforce Regulations made under this Act;

(d)

receive water permit applications for water abstraction, water use and recharge and determine, issue, vary water permits; and enforce the conditions of those permits;

(e)

collect water permit fees and water use charges;

(f)

determine and set permit and water use fees;

(g)

provide information and advice to the Cabinet Secretary for formulation of policy on national water resource management, water storage and flood control strategies;

(h)

coordinate with other regional, national and international bodies for the better regulation of the management and use of water resources; and

(i)

advise the Cabinet Secretary generally on the management and use of water resources.

13.
Powers of the Authority
(1)

The Authority shall have all the powers necessary for the execution of its functions under this Act.

(2)

Without prejudice to the generality of subsection (1), the Authority shall have the power to —

(a)

source and receive funding for the activities of the Authority;

(b)

collect, analyze and disseminate information on water resources;

(c)

monitor compliance by water users with the conditions of permits and the requirements of the Act;

(d)

issue permits for inter-basin water transfer; and

(e)

delegate regulatory functions to the basin water resource committees provided for under section 25.

14.
Management Board
(1)

The powers and functions of the Authority shall be exercised and performed under the direction of a Management Board, which consists of —

(a)

a chairperson, who shall be appointed by the President; and

(b)

the Principal Secretary responsible for matters relating to finance or his representative;

(c)

the Principal Secretary responsible for matters relating to water or his representative;

(d)

the Principal Secretary responsible for matters relating to the environment or his representative;

(e)

the Principal Secretary responsible for matters relating to land or his representative;

(f)

four other members, who shall be appointed by the Cabinet Secretary; and

(g)

the Chief Executive Officer.

(2)

The Chief Executive Officer shall be an ex officio member of the Management Board with no voting rights.

(3)

The chairperson and members of the Management Board shall hold relevant professional qualifications and experience and shall be appointed following an open and competitive recruitment process.

(4)

The First Schedule has effect with respect to the membership and procedure of the Management Board.

15.
General duties and responsibilities of the Management Board

The Management Board shall be responsible for overseeing the operations of the Authority with the goal of —

(a)

securing continuing improvements performance;

(b)

protecting the long term viability of the Authority; and

(c)

ensuring fiscal discipline of the Authority.

16.
Powers of the Management Board
(1)

The Management Board shall have all powers necessary for the proper performance of the functions of the Authority under this Act.

(2)

Without prejudice to the generality of the foregoing, the Management Board shall have power to—

(a)

administer the assets of the Authority in such manner as best promotes the purpose for which the Authority is established;

(b)

ensure protection, where necessary, of the assets and developments of the Authority;

(c)

determine the provisions to be made for capital and recurrent expenditure and for the reserves of the Authority;

(d)

receive any grants, gifts, donations or endowments and make legitimate disbursements there from;

(e)

invest any funds of the Authority not immediately required for its purposes;

(f)

delegate any of its powers; and

(g)

undertake any activity necessary for the fulfilment of any of the functions of the Authority.

17.
Chief Executive Officer
(1)

The Cabinet Secretary shall, on the recommendation of the Management Board, appoint a Chief Executive Officer of the Authority on such terms and conditions as may be specified in the instrument of appointment.

(2)

A person is qualified for appointment as Chief Executive Officer if that person—

(a)

is a citizen of Kenya;

(b)

holds a degree from a university recognized in Kenya;

(c)

has at least ten years relevant work experience with at least five years in a senior management position either in a public service or private sector organization; and

(d)

meets the requirements of leadership and integrity set out in Chapter Six of the Constitution.

(3)

The Chief Executive Officer is the accounting Officer of the Authority.

(4)

The Chief Executive Officer is subject to the direction of the Management Board and is responsible to it for the —

(a)

implementation of the decisions of the Management Board;

(b)

day to day management of the affairs of the Management Board;

(c)

organization and management of the employees; and

(d)

any other function that may be assigned by the Management Board.

(5)

The Chief Executive Officer shall hold office for a term of five years and is eligible for re-appointment for one further term upon exemplary performance.

18.
Removal of the Chief Executive Officer

The Chief Executive Officer may be removed from office by the Cabinet Secretary on the recommendation of the Management Board, in accordance with the terms and conditions of service.

19.
Employees of the Authority
(1)

The Authority may appoint such other employees as it may consider necessary for performance of its functions under this Act.

(2)

The terms and conditions of service of the employees of the Authority shall be determined by the Cabinet Secretary responsible for public service on the advice of the Salaries and Remuneration Commission.

20.
Classification of water resources and determination of quality objectives
(1)

The Authority shall prescribe the criteria for classifying water resources for the purpose of determining water resources quality objectives for each class of water resource.

(2)

The prescribed classification criteria shall take into account —

(a)

trans-boundary considerations;

(b)

strategic functions served by the water resource;

(c)

the use or potential for use of the water resource for inter-basin transfers;

(d)

ecological functions of the water resource; and

(e)

vulnerability to degradation or depletion and other related factors.

(3)

The Authority shall, by notice in the Gazette

(a)

classify each water resource in accordance with the prescribed classification criteria;

(b)

specify the resource quality objectives for a water resource of the class to which it belongs; and

(c)

specify the requirements for achieving the objectives, and the dates from which the objectives will apply.

(4)

All State organs shall when exercising any statutory power or performing any statutory duty, take into account and give effect to the resource quality objectives determined under this section in respect of a water resource.

21.
National Monitoring and Information System
(1)

The Authority shall ensure that there is in place a national monitoring and geo referenced information system on water resources.

(2)

The Authority may require any person, within a reasonable time or on a regular basis, to provide it with specified information, documents, samples or materials in relation to the system referred to in subsection (1).

(3)

Subject to Article 35 of the Constitution, a member of the public on payment of the prescribed fee shall —

(a)

have access to any specific information contained in any national information system; and

(b)

be supplied with a copy of any document contained in the information system which is accessible to the public.

22.
Protection of catchment areas
(1)

Where the Authority is satisfied that in order to conserve a vulnerable water resource, special measures are necessary for the protection of a catchment area or a part thereof, it may by Order published in the Gazette declare such catchment area to be a protected area.

(2)

The Authority may impose such requirements or regulate or prohibit such conduct or activities, in or in relation to the protected catchment area as the Authority may consider necessary for the protection of the area and its water resources.

23.
Conservation of ground water
(1)

Where the Authority is satisfied that, in any area, special measures for the conservation of ground water are necessary in the public interest for —

(a)

the protection of public water or water supplies used for industry, agriculture or other private purposes;

(b)

the conservation of the water resources of the aquifer of the ground water resources; or

(c)

ecological reasons, it may by Order published in the Gazette, declare the area to be a ground water conservation area.

(2)

The Authority may impose such requirements or prohibit such conduct or activities in relation to a groundwater conservation area as it may consider necessary for the conservation of the ground water.

(3)

The Cabinet Secretary may make Regulations for the better carrying into effect of this section.

Basin Areas

24.
Basin areas
(1)

The Authority shall in consultation with the Cabinet Secretary by notice published in the Gazette, designate a defined area from which rain water flows into a watercourse to be a basin area for the purposes of this Act.

(2)

The Authority may designate a basin area lying wholly or partly within another basin area as a sub-basin.

25.
Establishment of a basin water resources committee
(1)

The Cabinet Secretary shall by notice published in the Gazette establish a basin water resources committee for each respective basin area provided for under section 24.

(2)

The Cabinet Secretary shall assign a name to each basin water resources committee established in accordance with subsection (1).

(3)

A basin water resources committee shall be responsible for the management of the water resources within a respective basin area.

(4)

A basin water resources committee shall operate under the Regulations made by the Authority.

26.
Basin water resources committee
(1)

A basin water resources committee shall consist of —

(a)

not less than four and not more than seven members appointed by the Authority in consultation with the Cabinet Secretary; and

(b)

a representative of each county government whose area falls within the basin appointed by the appointing authority after approval by the county assembly.

(2)

The Cabinet Secretary shall, by notice in the Gazette, appoint the chairperson from amongst the members appointed under subsection (1) (a), who shall hold office for a period of three years.

(3)

The persons appointed under subsection (1) (a) must be residents of the respective basin area and shall include—

(a)

a representative of a ministry responsible for matters relating to water resources;

(b)

a representative of farmers or pastoralists within the basin area concerned;

(c)

a representative of a public benefits organisation engaged in water resources management programmes within the basin area concerned; and

(d)

a representative of the business community operating within the basin area concerned.

(4)

In appointing the members in subsection (1), the Authority shall ensure that at least three members have technical expertise in matters relating to water.

(5)

Paragraphs 2, 3, 5, 6, 7, 9, 11, 12 and 13 of the First Schedule shall apply in relation to the members and procedure of the basin water resources committee.

(6)

The Authority shall facilitate the activity of the basin water resources committee by making available secretariat services, logistical and administrative support.

(7)

The salaries, allowances and other expenses of the committee referred to in subsection (1) shall be determined by the Cabinet Secretary responsible for public service on the advice of the Salaries and Remuneration Commission.

27.
Functions of the basin water resources committees

The powers and functions of the basin water resources committee shall be to advise the Authority and county governments, at the respective regional office, concerning —

(a)

conservation, use and apportionment of water resources;

(b)

the grant, adjustment, cancellation or variation of any permit;

(c)

protection of water resources and increasing the availability of water;

(d)

annual reporting to the users of its services and the public on water issues and their performance within the basin area;

(e)

collection of data, analyzing and managing the information system on water resources;

(f)

review of the basin area water resources management strategy;

(g)

facilitation of the establishment and operations of water resource user associations;

(h)

flood mitigation activities;

(i)

information sharing between the basin area and the Authority;

(j)

the equitable water sharing within the basin area through water allocation plans; and

(k)

any other matter related to the proper management of water resources.

28.
Basin area water resources management strategy
(1)

Upon the designation of a basin area, the Authority shall prescribe requirements and a time frame for the formulation of a basin area water resources management strategy.

(2)

The basin area water resources management strategy shall be formulated by a basin water resources committee in consultation with the Authority and the county governments whose areas of jurisdiction lie within the basin area.

(3)

A basin area water resources management strategy shall—

(a)

be consistent with the national water resources policy;

(b)

put in place measures to fulfil the water resource quality objectives for each class of water resource in the basin area;

(c)

describe the measures to be put in place for the sustainable management of water resources of the basin area;

(d)

contain a water allocation plan for the water resources of the basin area;

(e)

provide systems and guidelines to enable the users of water resources within the basin area to participate in managing the water resources of the basin area; and

(f)

provide a strategy for financing the management of the water resources of the basin area.

(4)

The Cabinet Secretary shall publish the strategy referred to in subsection (1) in the Gazette.

29.
Establishment and functions of water resource users associations
(1)

Water resource users associations may be established as associations of water resource users at the sub-basin level in accordance with Regulations prescribed by the Authority.

(2)

A water resource users association shall be a community based association for collaborative management of water resources and resolution of conflicts concerning the use of water resources.

(3)

Without prejudice to the generality of section 28 (3) (e), the basin area water resources management strategy shall facilitate the establishment and operation of water resources users associations.

(4)

The basin water resources committees may contract water resource users associations as agents to perform certain duties in water resource management.

National Water Harvesting and Storage Authority

30.
Establishment of the National Water Harvesting and Storage Authority
(1)

There is established the National Water Harvesting and Storage Authority.

(2)

The Water Storage Authority established under this section shall be a body corporate with perpetual succession and a common seal, capable of suing and being sued in its own name and doing all things that a corporation may lawfully do.

31.
Water Harvesting and Storage Board
(1)

The powers and functions of the Water Storage Authority shall be exercised and performed under the direction of a Water Harvesting and Storage Board which shall consist of—

(a)

a chairperson, who shall be appointed by the President;

(b)

the Principal Secretary responsible for matters relating to water;

(c)

the Principal Secretary responsible for matters relating to land;

(d)

the Principal Secretary responsible for finance;

(e)

five other members, who shall be appointed by the Cabinet Secretary; and

(f)

a Chief Executive Officer.

(2)

The Chief Executive Officer is ex officio member of the Water Storage Board with no voting rights.

(3)

The First Schedule shall have effect with respect to the membership and procedure of the Water Storage Board.

32.
Powers and functions of the Water Storage Authority
(1)

The functions and powers of the Water Storage Authority shall be to—

(a)

undertake on behalf of the national government, the development of national public water works for water resources storage and flood control;

(b)

maintain and manage national public water works infrastructure for water resources storage;

(c)

collect and provide information for the formulation by the Cabinet Secretary of the national water resources storage and flood control strategies;

(d)

develop a water harvesting policy and enforce water harvesting strategies;

(e)

undertake on behalf of the national government strategic water emergency interventions during drought; and

(f)

advise the Cabinet Secretary on any matter concerning national public water works for water storage and flood control.

(2)

The Water Storage Authority may appoint agents for the operation, management, maintenance and safety of any storage infrastructure that it has developed.

(3)

The Water Storage Authority shall have such other powers and functions as may be conferred or imposed on it by this or any other Act.

33.
Chief Executive officer
(1)

The Cabinet Secretary, on the recommendation of the Water Storage Board may appoint the Chief Executive Officer of the Water Storage Authority, on such terms and conditions as the Cabinet Secretary for public service may determine on the advice of the Salaries and Remuneration Commission.

(2)

A person is qualified for appointment as Chief Executive Officer if thatperson—

(a)

is a citizen of Kenya;

(b)

holds a degree from a university recognized in Kenya;

(c)

has at least ten years' experience, five of which should be in a senior management position in a public or private organisation; and

(d)

meets the requirements of leadership and integrity set out in Chapter Six of the Constitution.

(3)

The Chief Executive Officer shall be the accounting officer of the Water Storage Authority.

(4)

The Chief Executive Officer is subject to the direction of the Water Storage Board and is responsible to it for the —

(a)

implementation of the decisions of the Water Storage Board;

(b)

day to day management of the affairs of the Water Storage Board;

(c)

organization and management of the employees; and

(d)

any other function that may be assigned by the Water Storage Board.

(5)

The Chief Executive Officer shall hold office for a term of five years and is eligible for re-appointment for one further term.

34.
Removal of the Chief Executive Officer

The Chief Executive Officer may be removed from office by the Cabinet Secretary on the recommendation of the Water Storage Board, in accordance with the terms and conditions of service.

35.
Employees of the Water Storage Authority
(1)

The Water Storage Authority may appoint such other employees as it may consider necessary for the performance of its functions under this Act.

(2)

The Cabinet Secretary responsible for matters relating to public service shall determine the terms and conditions of service of the employees of the Water Storage Authority on the advice of the Salaries and Remuneration Commission.

Regulation of Water Rights and Works

36.
Water permit

A permit is required for any of the following purposes—

(a)

any use of water from a water resource, except as provided by section 37;

(b)

the drainage of any swamp or other land;

(c)

the discharge of a pollutant into any water resource; and

(d)

any other purpose, to be carried out in or in relation to a water resource, which is prescribed by Regulations made under this Act to be a purpose for which a permit is required.

38.
Unauthorized construction and use of works
(1)

A person who—

(a)

without a permit, constructs or employs works for a purpose for which a permit is required; or

(b)

being the holder of a permit, constructs or employs any such works in contravention of the conditions of the permit, commits an offence.

(2)

The holder of a permit authorising the construction of works who, without the permission of the Authority takes water from any water resource —

(a)

by means of any works not authorised by the permit; or

(b)

before the whole of the works authorised by the permit have been certified, in accordance with the conditions of the permit, commits an offence.

39.
Easement for works
(1)

The holder of a permit which authorises the construction of works that would or a portion of works which would when constructed, be situated upon land not held by the permit holder shall, subject to any relevant law, acquire an easement on, over or through the land on which the works would be situated and, unless the works have previously been lawfully constructed, shall not construct or use the works unless he or she has acquired such an easement.

(2)

The provisions of the Third Schedule shall apply in respect of the acquisition of, and subsequent rights pertaining to or against, any such easement.

40.
Procedure for obtaining a permit
(1)

An application for a permit shall be made to the Authority at the applicable basin area.

(2)

An application under subsection (1) shall be made by completing and lodging the form prescribed by the Authority, together with—

(a)

such information in support of the application as the Authority may require; and

(b)

the prescribed fee.

(3)

The application shall be determined within six months of receiving an application which meets the requirements of the Authority.

(4)

An application for a permit shall be the subject of public consultation and, where applicable, of environmental impact assessment in accordance with the requirements of the Environmental Management and Coordination Act, 1999 (No. 8 of 1999).

(5)

Any person opposed to the grant of a permit may object in writing to the Water Tribunal within a period of thirty days after publication of the notice of the application.

(6)

The Authority must within thirty days notify the applicant and any person who may have objected to the grant of the application of its decision and in the event of a rejection, the reasons for the rejection.

(7)

Where an application made in accordance with this section is not determined by the Authority in accordance with subsection (3), any fee paid by the applicant under subsection (2)(b) shall be refunded to the applicant.

41.
Conditions of permits
(1)

A permit shall subject to subsection (2), be subject to—

(a)

conditions that may be prescribed by Regulations under this Act; and

(b)

such other conditions, not inconsistent with the conditions so prescribed, that the Authority may impose by endorsement on, or by an instrument in writing annexed to the permit.

(2)

The provisions of the Second Schedule shall be conditions on every permit which authorises the construction of works.

(3)

The Regulations under subsection (1)(a) may, among other things —

(a)

require the imposition of prescribed conditions in prescribed circumstances;

(b)

require the payment by the permit holder of prescribed fees in respect of the exercise of rights under the permit; or

(c)

provide that a contravention of any specified conditions of a permit under this Act, shall constitute an offence and provide for corresponding penalties.

(4)

The imposition of a penalty under this Act shall not prevent any person who has suffered loss, damage or injury by reason of the contravention of this Act from pursuing any other remedy for the recovery of damages.

42.
Charges for water use
(1)

The conditions on a permit may require that on the issue of the permit and at prescribed intervals thereafter, the permit holder shall pay charges to the Authority for the use of water in accordance with the terms of the permit and the Regulations prescribed by the Authority.

(2)

The charges shall be determined by reference to a schedule of charges published in the Gazette by the Authority following public consultation.

(3)

Where there is an agreement between the Authority and a water resources users' association, the Authority may make available a portion of the water use charges to be used for financing such regulatory activities as the water resources users association has agreed to undertake on behalf of the Authority.

43.
Considerations for the issuance of permits
(1)

In issuing a permit. and in fixing any conditions to be imposed on a permit, the Authority shall take into account such factors as it considers relevant,including—

(a)

existing lawful uses of the water;

(b)

efficient and beneficial use of water in the public interest;

(c)

any basin area water resources management strategy applicable to the relevant water resource;

(d)

the likely effect of the proposed water use on the water resource and on other water users;

(e)

the classification and the resource quality objectives of the water resource;

(f)

the investments already made and to be made by the water user in respect of the water use in question;

(g)

the strategic importance of the proposed water use;

(h)

the quality of water in the water resource which may be required for the reserve; and

(i)

the probable duration of the activity or undertaking for which a water use is to be authorised.

(2)

The use of water for domestic purposes shall take precedence over the use of water for any other purpose, and the Authority may, in granting any permit, reserve such part of the quantity of water in a water resource as in its opinion is required for domestic purposes.

(3)

The nature and degree of water use authorized by a permit shall be reasonable and beneficial in relation to other persons who use the same sources of supply or bodies of water.

(4)

A permit shall, subject to this Act, remain in force for the period specified in it, and may, to the extent that the permit so provides, be renewed from time to time.

44.
Issue of permits in exceptional cases
(1)

The Cabinet Secretary in consultation with the Authority may from time to time, by notice in the Gazette, make Regulations for determining exceptional circumstances to warrant a grant of a permit.

(2)

The Authority upon the advice of the basin water resources committee may, if in the opinion of the Authority exceptional circumstances as provided for in subsection (1), warrant such action, grant a permit authorising with or without conditions, the use of water from a water resource and the construction of the works required without subjecting the application to public consultation.

(3)

In considering whether or not to grant a permit in accordance with this section, the Authority, shall have regard to the extent to which the grant shall interfere with the domestic requirements of other users.

(4)

A permit granted in accordance with this section shall not in any case be in force for a period exceeding or for periods which in the aggregate exceed, one year, or for the construction of permanent works.

45.
Permit to be linked to land or undertaking
(1)

A permit shall specify, as far as practicable, the particular portion of any land, or the particular undertaking to which the permit is to be appurtenant, and on its grant the permit shall, subject to the provisions of this section, during the period for which it remains in force —

(a)

be appurtenant to that portion of land or that undertaking; and

(b)

pass with any demise, devise, alienation, transfer or other disposition whether by operation of law or otherwise.

(2)

Where, in the opinion of the Authority —

(a)

owing to a change in circumstances not under the control of the permit holder after the grant of the permit, the applicable water cannot, in such circumstances, be reasonably beneficially used by the permit holder on the particular portion of land to which the permit is appurtenant; and

(b)

neither the public interest nor the rights of others would be adversely affected by a transfer in accordance with this subsection, the Authority may, on application by the permit holder and by endorsement of the permit or other instrument in writing, transfer the permit to another portion of the land owned by the permit holder, after which, it shall become appurtenant to that portion.

(3)

If any land to which a permit is appurtenant has been, or is about to be, subdivided, the Authority may grant a new permit subject—

(a)

to the condition that such easements, if any, as may be required to be granted within a period of two years after sub-division of the land or within such longer period as the Authority may determine; and

(b)

any other conditions, and modifications, that the Authority may consider necessary.

46.
Variation or permit
(1)

Whenever it is shown to the satisfaction of the Authority that, owing to natural changes, increased demand or other cause, the use of water under a permit, or the method or point of diversion or other manner in which the water is so used causes—

(a)

inequity;

(b)

a deterioration in the quality of water;

(c)

a shortage of water for domestic purposes; or

(d)

a shortage of water for any other purpose which in the opinion of the Authority in case of inter-basin water transfers, should have priority,

the Authority may vary the permit so as to alter the discharge or quality of water or any other aspect of water use authorised by the permit, or to alter the method or point of diversion or other specifications, terms or conditions of the permit.

(2)

A permit shall not be cancelled or varied under this section unless notice of the proposed cancellation or variation has been served on the permit holder and the permit holder has been afforded a reasonable opportunity to show cause to the Authority why the permit should not be cancelled or varied.

(3)

Subsection (2) does not apply where the variation is expressed to be made owing to drought or owing to a crisis of a kind prescribed by Regulations made under this Act.

47.
Power to require permit application or re applications
(1)

Where, in the opinion of the Authority, it is desirable that water use in respect of one or more water resources, including ground water, within a specific geographic area be rationalized or reviewed so as to —

(a)

achieve a sustainable allocation of water from a water resource which is under stress:

(b)

achieve equity in allocations;

(c)

promote beneficial use of water in the public interest;

(d)

facilitate efficient management of water resources, or

(e)

protect water resource quality,

the Authority may issue a notice in the Gazette requiring all water users, including permit holders, to apply or reapply for permits for one or more types of water use.

(2)

On receipt of applications or re-applications, the Authority shall prepare a proposed allocation schedule specifying how water from the water resource in question shall be allocated, taking into account the requirements of the reserve.

(3)

The proposed allocation schedule shall be subjected to public consultation, after which the basin water resources committee shall prepare a preliminary allocation schedule and shall, by notice published in the Gazette advertise the times and places at which a copy of the schedule may be inspected.

(4)

A person dissatisfied with the preliminary allocation schedule may appeal to the Water Tribunal within thirty days of the publication under subsection (3).

(5)

A preliminary allocation schedule shall become a final allocation schedule—

(a)

if no appeal is lodged as provided for under subsection (4);

(b)

if it has been amended after a successful appeal; or

(c)

if every appeal lodged has been dismissed.

(6)

The Authority shall publish a notice in the Gazette stating that the preliminary allocation schedule has become final and advertise the times and places where a copy of the schedule may be inspected.

(7)

The Authority shall, as soon as reasonably practicable after an allocation schedule becomes final, issue permits according to the allocations provided for in it, and cancel any inconsistent permits.

48.
Cancellation of a permit
(1)

The Authority may in the case of an inter basin water transfer cancel or vary a permit if such cancellation or variation is necessary for the accommodation of additional water users of a water source.

(2)

A permit shall not be cancelled or varied under this section unless notice of the proposed cancellation or variation has been served on the permit holder and the permit holder has been afforded reasonable opportunity to show, cause to the Authority why the permit should not be cancelled or varied.

(3)

A permit holder whose permit is cancelled under this section shall be paid compensation of an amount agreed between the permit holder, the additional water user or users and the Authority in the case of inter basin water transfer, and any disputes arising from such compensation shall be determined by the Water Tribunal.

49.
Cancellation or variation of a permit for failure to observe terms and conditions
(1)

A permit may be cancelled or varied by the Authority if the permit holder—

(a)

contravenes any condition of the permit, or

(b)

fails to make beneficial use of the water or any part of the water as determined by the Authority.

(2)

A permit shall not be cancelled or varied under this section unless notice of the proposed cancellation or variation has been served on the permit holder and the permit holder has been afforded a reasonable opportunity to show cause to the Authority as to why the permit should not be cancelled or varied.

50.
Variation of permit following a hydrographical survey

Every permit shall be subject to subsequent variation by the Authority after a hydrographical survey of the relevant body of water has been made, and after reasonable notice has been given to all parties affected.

51.
Variation of a permit at the request of the permit holder
(1)

A permit holder may request the Authority to vary a permit issued under this Act and the Authority may if satisfied that the variation is not contrary to the public interest or the rights of others, vary such permit in order to —

(a)

change the point of diversion or abstraction of the water used under the permit;

(b)

change the use of water authorised by the permit; or

(c)

permit the apportionment of the water authorised by the permit to be taken or used, to be apportioned between two or more parts of the land to which the permit pertains;

(d)

permit the mixture of waters authorised to be taken or used, with those authorised to be taken or used by another permit, whether held by the same or another permit holder;

(e)

remedy any defect where the permit is incomplete or indefinite in its terms and conditions; or

(g)

vary any other term or condition of the permit.

(2)

A variation relating to —

(a)

the use of water authorised by the permit; or

(b)

a term or condition of a prescribed kind, shall not be made without public consultation.

52.
Abandonment of permitted activities
(1)

A permit holder who ceases to utilise water in accordance with the terms of the permit shall by notice to the Authority abandon the whole of the permit or any part capable of separation.

(2)

Upon abandonment of a permit under subsection (1), the Authority may direct the permit holder to remove, within such time as it may specify, all or any works erected in connection with the permit.

(3)

A permit holder who neglects or fails to remove the works concerned commits an offence, and the Authority may remove all or, any portion of the works, and may recover the cost of their removal from the permit holder as a debt in any court of competent jurisdiction.

53.
Surrender of permits
(1)

Where a permit—

(a)

is to be cancelled or varied by the Authority pursuant to this Act;

(b)

has been granted erroneously or irregularly; or

(c)

has been granted in contravention of the provisions of any Regulations made under this Act with respect to the terms and conditions of such a permit,

the Authority may, by notice served on the permit holder, require such permit holder to surrender the permit to the Authority.

(2)

A permit holder who fails to comply with the notice mentioned in subsection (1) commits an offence.

54.
Register of permits
(1)

The Authority shall establish and maintain a register of permits and the register shall contain the details of the permit holders, the respective terms and conditions of each permit and the results of any monitoring and enforcement action taken by the Authority in respect to each permit.

(2)

The Authority shall establish and keep a register at the national level.

(3)

The public may access the information contained in the register on payment of the fee prescribed by the Authority.

55.
Appeals
(1)

Any party aggrieved by the decision of the Authority may appeal to the Water Tribunal, in the prescribed manner within fourteen days from the date such decision was made.

(2)

The Tribunal shall on appeal either vary. reverse or confirm the decision of a water basin resources committee, and its decision shall be communicated to the parties concerned within fourteen days from the time the decision is made.

Ground Water

56.
Abstraction of ground water

The Fourth Schedule has effect with respect to the abstraction of ground water and respective works.

Entry on Land

57.
Entry by permit holder
(1)

Subject to the provisions of subsection (4), a permit holder or any person proposing to apply for a permit or intending to enter onto the land of another person for the purposes of conducting a survey related to proposed works, if his or her proposal is opposed by the other person, may—

(a)

upon submitting in the manner prescribed —

(i) a general description of his or her proposal;
(ii) a schedule of lands which may be affected construction and operation or any works undertaken pursuant to the permit;
(iii) the names and addresses of the affected landholders; and
(b)

upon payment of the prescribed fee,

obtain from the Authority permission to enter on to the land concerned and to carry out any survey or other preliminary investigation in connection with the location of any such proposed works.

(2)

The Authority may prescribe a time limit within which the investigation shall be completed.

(3)

The permit holder or any person authorized by the permit holder, may seek such assistance as is necessary to enter onto the respective land.

(4)

A permit shall not be issued under this section until the Authority has notified each landholder concerned that an application to enter his or her land hits been made under this section.

58.
Entry by the Authority

An inspector appointed by the Authority may without a warrant, enter onto any, land and inspect any water resource located within or accessible from the land concerned, in order to take such measures as the Authority may consider necessary for the purpose of—

(a)

conserving or regulating the water resource, or preserving it from pollution or protecting the bed over which it lies;

(b)

removing any obstruction from or clearing and deepening the bed; or

(c)

preventing the excessive or illegal diversion, waste or pollution of the water resource or interference with any such bed.

59.
Entry by licensee
(1)

An employee or agent of a licensee authorised by the licensee for the purpose may, without warrant, enter on to any land and inspect any source of water supply which is located within or accessible from the land concerned, in order to take such measures as the licensee may direct for the purpose of—

(a)

preserving the water from pollution or protecting the bed over which it lies or flows; or

(b)

removing any obstruction from or for clearing and deepening the bed; or

(c)

preventing the excessive or illegal diversion, waste or pollution of the water or interference with any such bed.

(2)

An employee or agent of a licensee authorised by the licensee for the purpose may enter onto any premises in the area to which the licence is applicable, for the purpose of—

(a)

ascertaining whether there has been a contravention of any such Regulations;

(b)

in the case of any Regulations in respect of tariffs and the payment of those tariffs, exercising any right conferred on the licensee to cut off supplies for non-payment; or

(c)

in the case of any Regulations made for preventing water degradation—

(i) ascertaining whether or not circumstances exist which would justify the licensee's imposing a requirement to execute works or take other action to prevent degradation; or
(ii) exercising any right conferred on the licensee to execute and maintain works or other appropriate action.
60.
Manner of entry
(1)

In this Part, "authorised person" means a person entering onto any land or premises pursuant to a right or permission conferred under this Act.

(2)

An authorised person shall not enter on any land or premises without first giving a reasonable notice in verbal or written form to the landholder or other responsible person in charge of the land or premises, and any such entry shall be at a reasonable hour.

(3)

Notwithstanding the provisions of subsection (2), an inspector may enter without giving notice if—

(a)

he or she has reason to believe that a provision of this Act or of any rule or order made under this Act has been or is about to be contravened;

(b)

he or she is unable to give notice within a reasonable time having regard to all the circumstances; or

(c)

he or she has given reasonable grounds for not giving notice.

(4)

If so requested by the owner or occupier of the land or premises, the authorised person shall produce evidence of his right or permission, as the case may be, to enter on to the land.

(5)

It shall be the duty of any person when exercising any powers under this section to do so with reasonable care and in such a manner as to cause as little damage as possible on the land or premises referred to in subsection (1).

61.
Powers of inspectors
(1)

A permit holder or licensee, or an employee or agent of a permit holder or licensee shall, on demand by an inspector —

(a)

avail to the inspector any information within his or her knowledge relating to any inquiry held by the inspector under this Act; and

(b)

produce for inspection any licence, map plan, specification, drawing or other document or record relating to —

(i) the permit or licence;
(ii) any works constructed under the permit or licence; or
(iii) the flow of water in any such works or in any water resource affected by them.
(2)

A person who contravenes this section commits an offence.

62.
Requirement to state name and address
(1)

A person who has committed, or has been accused of committing an offence under this Act and who —

(a)

refuses, on demand of an inspector, to give his or her name and place of abode and other particulars which the inspector may reasonably require; or

(b)

in purported compliance with such a demand, gives a name, place of abode or other particulars which the inspector has reason to believe to be false,

may be arrested by the inspector without warrant, and handed over to the nearest police officer.

(2)

When the true identity, place of abode or other particulars of the person referred to in subsection (1) have been ascertained, the person concerned shall be released upon the execution of a bond, if so required, with or without sureties, so as to appear before a magistrate.

(3)

If the person's true name and place of abode and other particulars are not ascertained within twenty hours from the time of the arrest, or if he or she fails to execute the bond or, to furnish the applicable sureties, such person shall be presented before a magistrate having jurisdiction in the area.

PART IV — WATER SERVICES
63.
Right to clean and safe water

Every person in Kenya has the right to clean and safe water in adequate quantities and to reasonable standards of sanitation as stipulated in Article 43 of the Constitution.

64.
National Water Services Strategy
(1)

The Cabinet Secretary shall within one year of the commencement of this Act and every five years thereafter following public participation formulate a Water Services Strategy.

(2)

The object of the Water Strategy shall be to provide the Government's plans and programs for the progressive realization of the right of every person in Kenya to water.

(3)

The Water Strategy shall contain among other things, details of—

(a)

existing water services;

(b)

the number and location of persons who are not provided with a basic water supply and basic sewerage services;

(c)

standards for the progressive realisation of the right to water; and

(d)

a resource mobilization strategy for the implementation of the plans.

(4)

The Water Strategy in force for the time being, shall be published in the Gazette.

(5)

The Cabinet Secretary shall in consultation with county governments provide a national water sector investment and financing plan aggregated from the county government plans which shall include, among other details, the time frames for the plans and an investment programme based on the investment plans.

(6)

The Cabinet Secretary shall review the Water Services Strategy every three years.

Water Works Development Agencies

65.
Establishment of water works development agencies
(1)

The Cabinet Secretary may by notice in the Gazette, establish one or more waterworks development agencies and define the geographical area of jurisdiction of each such agency.

(2)

The water works development agencies shall be bodies corporate with perpetual succession and a common seal and shall have power, in their respective corporate names, to sue and to be sued and, in the exercise and performance of their powers and functions, to do and permit all such things as may lawfully be done or permitted by a body corporate.

66.
Boards of the water works development agencies
(1)

Each water works development agency shall consist of —

(a)

a chairperson, who shall be appointed by the Cabinet Secretary from a county within the basin area;

(b)

four other members who shall be appointed by the Cabinet Secretary from counties within the basin area; and

(c)

the Chief Executive Officer.

(2)

The First Schedule has effect with respect to the membership and procedure of the water works development agencies.

67.
Criteria for water works development agencies

The Cabinet Secretary shall in consultation with stakeholders develop the criteria for establishment of the water works development agencies.

68.
Powers and functions of the water works development agency

The powers and functions of the water works development agency shall be to —

(a)

undertake the development, maintenance and management of the national public water works within its area of jurisdiction;

(b)

operate the waterworks and provide water services as a water service provider, until such a time as responsibility for the operation and management of the waterworks are handed over to a county government, joint committee, authority of county governments or water services provider within whose area of jurisdiction or supply the waterworks is located;

(c)

provide reserve capacity for purposes of providing water services where pursuant to section 103, the Regulatory Board orders the transfer of water services functions from a defaulting water services provider to another licensee;

(d)

provide technical services and capacity building to such county governments and water services providers within its area as may be requested; and

(e)

provide to the Cabinet Secretary technical support in the discharge of his or her functions under the Constitution and this Act.

69.
Hand over of completed works
(1)

As soon as possible, following the commissioning of the waterworks, the waterworks development agency shall enter into an agreement with the county government, the joint committee or authority of the county governments within whose area of jurisdiction the water works is located, jointly with the water service provider within whose area of supply the water works are located for the use by the joint committee, authority or water services provider, as the case may be, of the water works to provide water services.

(2)

The agreement shall make provision for the assumption by the county government, the joint committee, authority or water services provider of the responsibility for the repayment of any loans or liabilities of the waterworks and until full repayment of the loans and discharge of any outstanding liabilities, ownership of the waterworks shall remain in the waterworks development agency.

(3)

In the event that the county government, the joint committee, the authority or water services provider defaults in the repayment of any outstanding loans arising from the development, rehabilitation or maintenance of the works, the waterworks development agency may petition the Regulatory Board to declare a default and order the transfer of the water services provider's functions to the waterworks development agency, to exercise such functions until full repayment of the loan.

The Water Services Regulatory Board

70.
Establishment of the Water Services Regulatory Board
(1)

There is established the Water Services Regulatory Board whose principal object is to protect the interests and rights of consumers in the provision of water services.

(2)

The Regulatory Board shall be a body corporate with perpetual succession and a common seal and shall have power, in its corporate name, to sue and be sued and, in the exercise and performance of its powers and functions, to do and permit all such things as may lawfully be done or permitted by a body corporate.

71.
Regulatory Board
(1)

The powers and functions of the Regulatory Board shall be exercised and performed under the direction of the Regulatory Board, which shall consist of—

(a)

a chairperson appointed by the President;

(b)

four other members appointed by the Cabinet Secretary; and

(c)

the Chief Executive Officer.

(2)

The First Schedule shall have effect with regard to the membership and procedure of the Regulatory Board.

72.
Powers and functions of the Regulatory Board
(1)

The powers and functions of the Regulatory Board shall be to —

(a)

determine and prescribe national standards for the provision of water services and asset development for water services providers;

(b)

evaluate and recommend water and sewerage tariffs to the county water services providers and approve the imposition of such tariffs in line with consumer protection standards;

(c)

set licence conditions and accredit water services providers;

(d)

monitor and regulate licensees and enforce licence conditions;

(e)

develop a model memorandum and articles of association to be used by all water companies applying to be licensed by the Regulatory Board to operate as water services providers;

(f)

monitor compliance with standards including the design, construction, operation and maintenance of facilities for the provision of water services by the water works development bodies and the water services providers;

(g)

advise the Cabinet Secretary on the nature, extent and conditions of financial support to be accorded to water services providers for providing water services;

(h)

monitor progress in the implementation of the Water Strategy and make appropriate recommendations;

(i)

maintain a national database and information system on water services;

(j)

establish a mechanism for handling complaints from consumers regarding the quality or nature of water services;

(k)

develop guidelines on the establishment of consumer groups and facilitate their establishment;

(l)

inspect water works and water services to ensure that such works and services meet the prescribed standards;

(m)

report annually to the public on issues of water supply and sewerage services and the performance of relevant sectors and publish the reports in the Gazette;

(n)

make Regulations on water services and asset development which shall include business, investment and financing plans in order to ensure efficient and effective water services and progressive realization of the right to water services;

(o)

advise the Cabinet Secretary on any matter in connection with water services; and

(p)

make recommendations on how to provide basic water services to marginalised areas.

(2)

The Regulatory Board shall have such powers and functions as may be conferred on it by this or any other Act, or as may be reasonably incidental to the exercise or performance of any power or function so conferred.

73.
Employees of the Regulatory Board
(1)

There shall be a Chief Executive Officer of the Regulatory Board who shall be appointed by the Cabinet Secretary on the recommendation of the Regulatory Board, on such terms and conditions of service as may be prescribed by the Cabinet Secretary responsible for public service on the advice from the Salaries and Remuneration Commission.

(2)

The Chief Executive Officer shall be the principal officer of the Regulatory Board and, subject to the directions of the Regulatory Board shall be responsible for management of the Regulatory Board.

(3)

The Regulatory Board may appoint such officers and other employees as may be necessary for the exercise and performance of its powers and functions, upon such terms and conditions as the Cabinet Secretary responsible for public service may determine upon consideration of advice from the Salaries and Remuneration Commission.

75.
Register of licensed water services providers
(1)

The Regulatory Board shall maintain the register of all licensed water services providers containing —

(a)

their names and addresses;

(b)

in the case of a registered association, or public benefit organization, the nature of the association or organization and the particulars of its registration;

(c)

the nature of services in respect of which the water services providers are accredited;

(d)

the conditions, if any, attaching to their license; and

(e)

any other matter prescribed in Regulations.

(2)

The register of the licensed person shall be a public document accessible for inspection at no charge and shall be publicized, placed or posted in accessible formats at such places as the Regulatory Board shall determine.

(3)

The register referred to in this section shall be published from time to time by the Authority.

(4)

The Regulatory Board shall develop and publish guidelines to regulate the conduct of licensed water services providers.

76.
Revocation of licence
(1)

The Regulatory Board may, revoke the licence of a water services provider on any of the following grounds —

(a)

if it is shown to the satisfaction of the Regulatory Board that the licence was obtained by mistake, fraud, undue influence or misrepresentation; or

(b)

the water services provider has for any reason ceased to meet the criteria for licensing; or

(c)

if it is shown to the satisfaction of the Regulatory Board that the water services provider has refused, failed or neglected to provide the services for which they were licensed;

(d)

the water services provider becomes insolvent, or is adjudged bankrupt; or

(e)

the water services provider has failed to comply with any conditions for licensing.

(2)

The Regulatory Board shall give written notice of revocation of a license under subsection (1) to the water services provider within seven days of the revocation.

(3)

A person whose licence is suspended or revoked shall cease to provide the relevant service.

(4)

A water services provider whose licence is suspended or revoked may apply to the Regulatory Board to review its decision within fourteen days of receipt of the notice of revocation.

77.
Establishment of water service providers
(1)

A county government shall establish water services providers.

(2)

In establishing a water services provider, a county government shall comply with the standards of commercial viability set out by the Regulatory Board.

(3)

A water services provider established under this section may be a public limited liability company established under the Companies Act, 2015 (No. 17 of 2015) or other body providing water services as may be approved by the Regulatory Board.

(4)

A company intending to be licensed as a water service provider shall submit to the Regulatory Board its memorandum and articles of association that conform to the guidelines developed and approved by the Regulatory Board.

(5)

The Regulatory Board shall make Regulations on the standard of water to be supplied by water service providers licensed under this section.

78.
Responsibilities of the water services provider
(1)

A water services provider shall be responsible for—

(a)

the provision of water services within the area specified in the licence; and

(b)

the development of county assets for water service provision.

(2)

A licensed water services provider shall have such other powers and functions as may be conferred on it by this Act or any other Act.

79.
Board of a water services provider
(1)

A water services provider shall have a board of directors and in the case of a company, the members of its board of directors shall be constituted in accordance with the Companies Act, 2015 (No. 17 of 2015) or any other written law and the directors shall be nominated to serve on the board in accordance with the company's memorandum and articles of association.

(2)

All members nominated to the water services provider's board of directors shall possess qualifications which meet the standards set by the Regulatory Board.

80.
Member of the Board not to hold public office

A member of a board of directors of a water services provider shall not —

(a)

at the time of nomination for appointment to the board, be serving as an elected member of a county government;

(b)

hold office in a political party; or

(c)

be a serving member of Parliament.

81.
Extension of services to rural or developing areas

A water services provider may with the approval of the relevant licensing authority extend water services to rural or developing areas.

82.
Appeals to the Regulatory Board
(1)

A party aggrieved by the decision of a water services provider may appeal against the decision to the Regulatory Board in the prescribed manner within fourteen days from the date the decision was made.

(2)

The Regulatory Board may on appeal either vary, reverse or confirm the decision of the water service provider, and the Regulatory Board shall communicate its decision to the parties concerned within fourteen days from the time the decision is made.

83.
County owned water service provider to hold assets for the public

A county or a cross-county owned water service provider established as a public institution and operating and providing water services shall hold the county or national public water services assets on behalf of the public.

84.
Cabinet Secretary to make Regulations
(1)

The Cabinet Secretary shall make Regulations for the transfer of national public assets to the county water services providers in accordance with any larv regulating the handing over and disposal of public assets.

(2)

The Regulations shall include arrangements to protect public assets in case of private sector participation such as the separation of operation from asset holding and development.

86.
Procedure and requirements for obtaining a Iicence
(1)

An application for the licence under section 85 (1) shall be made in the prescribed form to the Regulatory Board.

(2)

In making the application, the applicant shall be required to submit the following particulars to the Regulatory Board as the case may be—

(a)

evidence that the applicant's board of directors complies with the standards set by the Regulatory Board under section 79 (2);

(b)

the technical and financial capability of the applicant to provide the services and perform the functions authorized by the licence;

(c)

evidence that the water services to be provided will be commercially viable;

(d)

the applicant's business plans for the provision of efficient. affordable and sustainable water services;

(e)

details of planned financial and infrastructural improvements;

(f)

a proposed tariff structure; and

(g)

any other information required by the Regulatory Board.

(3)

The application shall be made by completing and lodging the prescribed form together with the supporting documentation and the prescribed fee.

(4)

The Regulatory Board shall have discretion to grant or refuse to grant an application for a licence submitted under subsection (1).

(5)

An application shall not be granted unless the Regulatory Board is satisfied that—

(a)

the applicant has the requisite technical and financial competence to provide the services to which the licence relates;

(b)

the applicant has demonstrated that the water services to be provided will be commercially viable;

(c)

the applicant has presented a sound plan for the provision of an efficient, affordable and sustainable water service;

(d)

the applicant has proposed satisfactory performance targets and planned improvements and an acceptable tariff structure;

(e)

the applicant or any water services provider by whom the functions authorized by the licence are to be performed, will provide the water services authorised by the licence on a commercial basis and in accordance with sound business principles;

(f)

where water services authorised by the licence are to be provided by a water services provider which conducts some other business or performs other functions not authorised by the licence, the supply of those services will be undertaken, managed and accounted for as a separate business enterprise; and

(g)

the applicant has met any other requirements which the Regulatory Board may consider necessary for the efficient provision of the services to be provided under the licence.

87.
Application for a a licence subject to public consultation
(1)

An application for a licence shall be subject to public participation.

(2)

Any person opposed to the grant of a licence may object, in writing, to the Regulatory Board.

(3)

The Regulatory Board shall make a determination on an application for a licence within six months after the applicant lodges the application.

(4)

The Regulatory Board shall notify the applicant and the objector of its decision and, in the event of the rejection of an application or objection, of the reasons for the decision.

(5)

An applicant or objector may, if aggrieved by the decision of the Regulatory Board, appeal to the Tribunal within thirty days of the date of the notification of the decision.

(6)

Where the Regulatory Board does not determine the application within six months of receipt of the application, any fee charged by the Regulatory Board under section 86(3) shall be refunded to the applicant.

88.
Licence not to confer any rights of proprietorship to the licensee
(1)

A licence shall only authorise a water services provider to provide water services in the area specified in the licence and shall not confer any rights of proprietorship and in particular, the licence shall not be capable of being sold, leased, mortgaged, transferred, attached, assigned, demised or encumbered.

(2)

The Regulatory Board may require the applicant to deposit with it a guarantee or other acceptable security for the purpose of securing payment by the applicant of any expenses recoverable from the licensee, for or towards the costs incurred in discharging the functions of the licensee in cases of default.

(3)

As a condition for the licence, a licensee shall, within twelve months of receipt of the licence, or such other longer period as the Regulatory Board may determine, formulate and present to the Regulatory Board, a development plan for extending services to persons not receiving water services within such licensee's area of operation, a time frame for the implementation of the plan and a resource mobilization strategy.

89.
Licence fees
(1)

A licensee shall pay to the Regulatory Board, as the case may be, on issue of the licence and at prescribed intervals thereafter, such licence fees as the Regulatory Board may determine.

(2)

The fee shall be determined by reference to a schedule of fees published in the Gazette from time to time by the Regulatory Board.

90.
Conditions of Licence
(1)

A licence shall be subject to—

(a)

conditions prescribed by Regulations made under this Act; and

(b)

such other conditions, not inconsistent with the conditions prescribed, as the Regulatory Board may impose in the licence or by endorsement in an instrument annexed to the licence.

(2)

Under this Act, Regulations may—

(a)

require the imposition of prescribed conditions in prescribed circumstances; and

(b)

require the licensee to maintain, in the prescribed manner, a contingency fund for the purpose of renewal, repair, enlargement or improvement of any plant, equipment, facilities or works used for the purposes of the licence or for meeting any other prescribed contingency.

91.
Duty to provide water services
(1)

A water services provider shall, as the licensee, be responsible for the efficient and economical provision of water services so as to fulfil the rights to water and any other conditions specified in the licence.

(2)

For the purpose of the provision of water services, a water services provider, may—

(a)

purchase, lease or otherwise acquire, premises, plant, equipment and facilities; and

(b)

purchase, lease or otherwise acquire land, or request for its compulsory acquisition in accordance with the applicable laws.

92.
Consumer complaints

Every water services provider shall establish a mechanism for handling consumer complaints which meets the standards set by the Regulatory Board.

93.
Public Private Partnerships
(1)

A water services provider may enter into a public private partnership or public partnerships for the exercise and performance by another person of some or all of its functions as a licensee with respect to a part or the whole of its area of water service provision.

(2)

The partnership shall be in writing subject to the approval of the Regulatory Board.

(3)

Where the person entering into an agreement with the water services provider owns or possesses assets or infrastructure used for the provision of water services, the agreement shall set out the terms and conditions under which the assets may continue to be so used.

(4)

A power or function conferred by a licence or otherwise conferred under this Act may be exercised or performed by another person acting under an agreement with the licensee and shall be deemed, when exercised or performed by that other person, to have been exercised or performed by the licensee.

94.
Special provisions with respect to rural areas not commercially viable
(1)

Nothing in this Act shall deprive any person or community of water services on the grounds only that provision of such services is not commercially viable.

(2)

Every county government shall put in place measures for the provision of water services to rural areas which are considered not to be commercially viable for the provision of water services.

(3)

The measures referred to in subsection (2) shall include the development of point sources, small scale piped systems and stand pipes which meet the standards set by the Regulatory Board and which may be managed by the community associations, public benefits organizations or a private person under a contract with the county government.

(4)

In order to implement its obligations under this section, a county government shall formulate and submit annually to the Regulatory Board and to the Cabinet Secretary, a five year development plan incorporating an investment and financing plan for the provision of water services in the rural areas referred to subsection (1) within its area of jurisdiction.

(5)

The Cabinet Secretary shall provide technical, financial and other assistance to a county government to enable the county government to discharge its responsibility under this section.

95.
Variation of terms or conditions of a Iicence
(1)

The Regulatory Board may, on the application of a licensee, vary the terms and conditions of the licence.

(2)

Except as otherwise provided by Regulations made under this Act, no such variation shall be made without prior public consultation.

96.
Areas of water service
(1)

The area of water service provision shall be prescribed by a licence and shall not be less than the area required for a commercially viable water service.

(2)

The area so prescribed may, but need not, coincide with the boundaries of the area or areas of jurisdiction of one or more county governments.

97.
Clustering of areas of water service provision
(1)

The Regulatory Board may, on the application of the licensees—

(a)

permit the joint provision, by two or more licensees, of water services on such terms as it may approve; or

(b)

permit the transfer of a water service, or a part thereof, from one licensee to another licensee.

(2)

Where it appears necessary to the Regulatory Board, for the purpose of securing a commercially viable water service, it may, by notice in the Gazette, order a joint provision of water services or a transfer of water service and vary the relevant licenses accordingly.

(3)

An order made under this section may make such incidental, consequential and supplementary provision as the Regulatory Board considers necessary for the purpose of carrying out the order.

(4)

The Cabinet Secretary in consultation with the Regulatory Board shall make rules, setting out circumstances under which the provision of joint water services may be ordered.

(5)

A licensee aggrieved by the provisions of the order may appeal to the Tribunal.

98.
Variation of areas of service
(1)

The Regulatory Board may vary the areas of water service provision prescribed by one or more licences —

(a)

on the application of a licensee whose area of water service is to be varied and with the consent of any other licensees affected; or

(b)

without the consent, or against the objections of any such other licensee, if the Regulatory Board is satisfied that the other licensee is unable to meet the demands for water in its area of jurisdiction or is otherwise unable to provide a commercially viable service.

(2)

Where it appears to the Regulatory Board that it is necessary to vary the area of water service of a licensee and the Regulatory Board is satisfied that such a variation cannot be otherwise secured it may, by order published in the Gazette, effect the variation accordingly.

(3)

An order made under this section may make such incidental, consequential and supplementary provisions as the Regulatory Board may consider necessary for the purpose of carrying out the order.

(4)

A licensee aggrieved by the provisions of an order made under this section may appeal to the Tribunal.

99.
Provision of water service outside the area of supply
(1)

Subject to any Regulations made under this Act, the Regulatory Board may direct a licensee to provide water services, outside its area of water services jurisdiction.

(2)

Where under this section a licensee, in this section called the "supplying licensee", is providing water services to premises outside its area of supply, any other licensee within whose area of supply those premises are situated may, in the absence of any agreement to the contrary, give not less than three months' notice to the supplying licensee that the licensee is able and intends to provide water services to the premises.

(3)

A notice given under subsection (2) shall not be valid unless it relates to all the premises to which the water services are being provided by the supplying licensee in accordance with this section.

(4)

If on the expiration of the notice under subsection (2) the licensee giving the notice commences to supply water to the premises covered by the notice, the supplying licensee shall, except for the purpose of recovering water rates or other charges or expenses lawfully recoverable by the supplying licensee, and of removing any pipes, plant or apparatus belonging to the supplying licensee, cease to have any rights or duties in respect of providing water services to the premises concerned.

(5)

The supplying licensee shall not remove any pipes, plant or apparatus which are required by the licensee giving the notice, and any such pipes, plant or apparatus shall vest in the licensee giving the notice.

(6)

The licensee giving notice shall pay to the supplying licensee —

(a)

any expenses reasonably incurred by the supplying licensee for the purpose of providing water services to the premises referred to in the notice;

(b)

such sum in respect of any pipes, plant or apparatus vested in the licensee giving the notice as may be agreed or, in default of agreement, as may be determined by the Regulatory Board.

(7)

While the supplying licensee is in accordance with this section authorized to provide water services outside its area of service, any Regulations relating to its water service shall have effect as if the area to which those services were provided were within those limits.

100.
Supply of bulk water
(1)

A person shall not supply water in bulk to a water services provider without a licence issued by the Regulatory Board.

(2)

A water service provider may enter into an agreement with any other licensee or water services provider on terms and conditions to be approved by the Regulatory Board —

(a)

for the supply water in bulk for a specific period; or

(b)

where the supply is to be given by a water services provider, either within or outside the area of service of that water services provider.

(3)

Where it appears to the Regulatory Board that —

(a)

it is expedient for —

(i) any licensee or water services provider to give the supply of water in bulk to another licensee or water service provider;
(ii) the other licensee or water services provider to take such supply; and
(b)

giving and taking of such a supply cannot be secured by agreement,

the Regulatory Board may, by order served on the parties, require the licensees concerned to give and take the supply of water in bulk for such a period and on such terms as the Regulatory Board may specify.

101.
Default by a Licensee
(1)

If it appears to the Regulatory Board following a complaint made to or information received by a county government executive or the Regulatory Authority, that any licensee —

(a)

has failed to discharge any duty imposed upon the licensee by a licence or otherwise under this Act; or

(b)

has failed to give an adequate supply of water, either in quantity or quality to any area or any person which it is supplying; or

(c)

having been notified by the Regulatory Board, as the case may be, to take such steps as are reasonably practicable in order to remedy any such failure as is mentioned in paragraph (a) or (b), and has failed to do so,

the Regulatory Board, as the case may be, may inquire into the matter.

(2)

If, after inquiry, the Regulatory Board is satisfied that there has been failure on the part of the licensee, the Regulatory Board may impose a special regulatory regime on the water services provider for the purpose of remedying the default.

(3)

A licensee declared to be in default and is dissatisfied with an order of the Regulatory Board under this section may, within thirty days after receipt of the order. appeal to the Tribunal.

(4)

A licensee declared to be in default by order under this section and who fails to comply with the order within the time specified, commits an offence.

102.
Special regulatory regime
(1)

The Regulatory Board may, in consultation with the affected county government's executive, impose a special regulatory regime on a licensee who persistently contravenes the conditions of a licence or the requirements of this Act.

(2)

In taking the action contemplated in subsection (1) the licensee shall be given an opportunity to make presentations to the Regulatory Board.

(3)

The Regulatory Board may under a special regulatory regime —

(a)

require the licensee to be under enhanced monitoring licence and reporting;

(b)

remove privileges from the licence; or

(c)

revoke the licence and appoint a special manager of the water services for a period of not more than six months or until the respective county government makes a new appointment whichever is the earlier.

(4)

In determining withdrawal of a licence, the Regulatory Board shall consider the severity of the offence, the consequences of withdrawal of a licence and the sufficiency of any alternative sanction.

103.
Transfer of functions of Iicensee
(1)

If the Regulatory Board is satisfied that, notwithstanding the imposition of measures under a special regulatory regime, the default has not been remedied and is not likely to be remedied by the licensee, it shall subject to the Public Finance Management Act, 2012 (No. 18 of 2012) in consultation with the concerned county government executive, by notice in the Gazette, order the transfer of water services to another licensee.

(2)

The order of transfer shall make such provisions as appear to the Regulatory Board to be desirable or necessary with respect to any property or assets being used by the defaulting licensee for the purposes of providing the water services.

(3)

The transfer of a licence shall be a temporary measure not exceeding twelve months pending remedial action by a county government executive.

104.
Agreements as to protection of sources of water, etc
(1)

A licensee may enter into an agreement with any person with respect to the execution and maintenance, by any party to the agreement, of such works as the licensee considers necessary or as the conditions of the licence may require for the purpose of protecting the catchment areas, drainage of land, carrying out soil conservation measures, the control of vegetation or effectively collecting, conveying or preserving the purity and quantity of water which the licensee is for the time being authorised to take.

(2)

An agreement under this section may be registered against any proprietor of the applicable land, and shall be binding upon and enforceable against such person or successor in title.

105.
Power of licensee to prohibit or restrict use of water
(1)

A licensee who is of the opinion that there is a serious deficiency or threat of a deficiency of water available for distribution, may with the approval of the Regulatory Board, for such period as the licensee considers necessary, prohibit or restrict with respect to the whole or any part of such licensee's limits of supply, the use for any specified purpose of water.

(2)

Before the prohibition or restriction in subsection (1) comes into force, notice shall be given by the licensee, in one or more newspapers of daily circulation, within the affected area or by such other means as the Regulatory Board may approve, of the proposed prohibition or restriction and of the date when such prohibition or restriction shall come into force.

(3)

Any person who contravenes the provisions of this section commits an offence.

106.
Duty to enforce Regulations on water services
(1)

It shall be the duty of every county government executive to monitor and enforce the applicable Regulations made under this Act, and any county government executive who fails to do so shall be liable to an order by the Regulatory Board to take such action to enforce such Regulations as shall be specified in the order.

(2)

Where a county government executive considers that the operation of any such Regulations would be unreasonable in any particular case, a county government may, in consultation with the Regulatory Board, by notice to any affected party, reduce or dispense with the requirements of the regulation.

107.
Execution of works for protection of water
(1)

A licensee may, on any land belonging to it, or on land over or in which it has acquired any necessary easement or right, construct and maintain drains, sewers and other works for intercepting, treating or disposing of any foul water arising or flowing upon such land or otherwise for preventing water belonging to the licensee, or which it is for the time being authorised to take, from being polluted.

(2)

The licensee shall before constructing any works, if the proposed works will affect or are likely to affect any water resource, obtain the consent of the Authority and the Regulatory Board.

(3)

Any licensee proposing to construct any drain, sewer or other works may, with the consent of the state organ concerned and subject to such conditions as the state organ may impose, carry the drain, sewer or other work under, across or along any road or road reserve or public place, whether within or outside the area of water service of the licensee.

(4)

A consent required under subsection (2) shall not be unreasonably withheld, nor shall any unreasonable condition be attached to such consent, and any question arising from the operation of this subsection shall be decided by consultation between the state organs concerned.

108.
Control of trade effluent
(1)

It shall be the duty of a licensee receiving trade effluent into its sewerage system to ensure that it has in place measures for the receipt and handling of the effluent without causing —

(a)

pollution of the environment;

(b)

harm to human health;

(c)

damage to the sewerage system; or

(d)

a contravention of applicable laws or standards set by the Regulatory Board.

(2)

A person shall not discharge any trade effluent from any trade premises into the sewers of a licensee without the consent of the licensee.

(3)

An application for consent shall be made to the licensee and shall state—

(a)

the nature or composition of the trade effluent;

(b)

the maximum quantity of the effluent which it proposes to discharge on any one day;

(c)

the highest rate at which it is proposed to discharge the effluent; and

(d)

any other information required by the licensee.

(4)

The licensee's consent may be given subject to conditions, including conditions requiring pre-treatment and payments to the licensee of charges for the discharge.

(5)

Any person who is dissatisfied with the decision of the licensee on an application under this section may, within thirty days of the decision, appeal to the Regulatory Board.

(6)

A person who contravenes the provisions of this section commits an offence.

(7)

In this section, "trade effluent" means any liquid, whether with or without suspended particles, produced as a by-product in the course of any trade or industry.

109.
Sewerage services levy
(1)

The Regulatory Board may impose a sewerage services levy on all water services within the area of a licensee, to cover a reasonable part of the cost of disposing of the water supplied within those limits.

(2)

A portion of the levy referred to in subsection (1) may, with the approval of the Regulatory Board, be set aside by the licensee for use in the expansion of the sewerage system within the area of service provision of the licensee.

110.
Compulsory acquisition of land
(1)

A licensee, or an applicant for a license, who requires the compulsory acquisition of land for any of its purposes, may apply to a county governor, or where necessary to the Cabinet Secretary, who, on being satisfied that such compulsory acquisition is desirable, may take the steps necessary to secure the compulsory acquisition of the land in accordance with the applicable laws.

(2)

It shall be a condition of the licence that the licensee or an applicant for a licence shall, for the purposes of subsection (1) take any necessary action to ensure the protection —

(a)

of a source of supply which belongs to such licensee or will belong to the licensee following the acquisition;

(b)

against pollution or other degradation. whether on the surface or underground of any water resource within such licensee's area of jurisdiction.

(3)

Any purpose for which land may be acquired under this section shall be deemed, for the purposes of the law on land acquisition, to be a public purpose.

111.
Regulatory Board to establish Information System
(1)

The Regulatory Board shall establish a national monitoring and georeferenced information system on water services.

(2)

For the purposes of any systems established under this section, the Regulatory Board may, by order, require any person within a reasonable time or on a regular basis, to provide it with information, documents, samples or materials.

(3)

The Cabinet Secretary may make Regulations to facilitate the access to information by the public.

(4)

Regulations made under this Act may specify requirements and the nature of information for the keeping of records and the furnishing of information to the Regulatory Board.

(5)

Subject to any law relating to access to information and upon payment of the prescribed fee, a member of the public shall have access to information contained in any national information system.

112.
Annual report

Within three months after the end of each financial year, the Regulatory Board shall prepare an annual report of its work and activities and shall cause the report to be published and publicized.

PART V — WATER SECTOR TRUST FUND
113.
Establishment of the Water Sector Trust Fund
(1)

There is established a water sector financing institution to be known as the Water Sector Trust Fund.

(2)

The Fund is a body corporate with perpetual succession and a common seal and shall have power, in its corporate name, to sue and to be sued and, in the exercise and performance of its powers and functions, to do and permit all such things as may lawfully be done or permitted by a body corporate in furtherance of its objects.

114.
Objects of the Fund

The object of the Fund is to provide conditional and unconditional grants to counties, in addition to the Equalisation Fund and to assist in financing the development and management of water services in marginalized areas or any area which is considered by the Board of Trustees to be underserved including—

(a)

community level initiatives for the sustainable management of water resources;

(b)

development of water services in rural areas considered not to be commercially viable for provision of water services by licensees;

(c)

development of water services in the under-served poor urban areas; and

(d)

research activities in the area of water resources management and water services, sewerage and sanitation.

115.
Board of Trustees of the Fund
(1)

The powers and functions of the Fund shall be exercised and performed under the direction of a Board of Trustees from time to time appointed and holding office under a trust deed to be drawn by the Cabinet Secretary.

(2)

The Board of Trustees shall consist of a chairperson and six other members recruited in accordance with the First Schedule.

(3)

The First Schedule shall have effect with respect to the membership and procedure of the Board of Trustees of the Fund.

116.
Functions of the Board of Trustees
(1)

The powers and functions of the Board of Trustees shall be to —

(a)

manage the resources of the Fund;

(b)

mobilize additional resources for the Fund;

(c)

formulate and implement principles, Regulations and procedures in consultation with the national government and county governments for financing projects, including efficiency and effectiveness of funds;

(d)

implement measures to ensure the efficient and equitable sharing of the resources of the Fund giving priority to resource allocation in —

(i) rural and urban areas where access to basic water services is below the national average; and
(ii) rural areas which are vulnerable to the degradation or depletion of water resources;
(e)

monitor the implementation of projects;

(f)

maintain and make public available information on the projects financed and impact of such projects;

(g)

receive grants for onward lending to water services providers, counties, and registered community schemes towards water services and water resources management projects for the underserved areas and urban poor;

(h)

establish and manage subsidiary funds as may be necessary for sustainable financing towards water services and water resource management; and

(i)

in collaboration with relevant institutions develop incentive programmes for water resources management including disaster management, climate change adaptation and mitigation.

(2)

The provisions of subsection (1)(g) shall only apply to water service providers, counties and registered community schemes, that can afford the repayment of the funds advanced, and profits thereof used to finance water services and water resources management projects for the underserved areas and urban poor.

(3)

The Board of Trustees of the fund shall, following public consultation, gazette the criteria for qualification for funding from the Fund taking account of considerations of equity and may from time to time following public consultation review the criteria.

117.
Monies of the fund
(1)

The monies of the Fund shall consist of —

(a)

appropriated by Parliament from the national budget for the purposes of the Fund;

(b)

provided to the Fund from the Equalisation Fund on agreed programmes;

(c)

provided to the Fund by a county government on agreed programmes;

(d)

received by the Fund from donations, grants, and bequests from other sources;

(e)

the proceeds of the levy imposed under subsection (2); and

(f)

payable into the Fund under any Act.

(2)

The Cabinet Secretary may, by Regulations following public consultation prescribe a levy to be paid by consumers of piped water supplied by licensed water service providers, the proceeds of which shall be paid into the Fund established under section 113.

118.
Staff of the Fund
(1)

The Fund shall have Chief Executive Officer who shall be appointed by the Board of Trustees on such terms and conditions of service as the Cabinet Secretary responsible for matters relating to public service on the advice of the Salaries and Remuneration Regulatory Authority may determine.

(2)

The Chief Executive Officer shall be the accounting officer of the Fund and, subject to the directions of the Fund, shall be responsible for the management of the affairs of the Fund.

(3)

The Fund may appoint such officers and other staff as may be necessary for the exercise and performance of its functions, upon such terms and conditions as the Cabinet Secretary responsible for matters relating to public service on the advice of the Salaries and Remuneration Commission may determine.

PART VI — DISPUTE RESOLUTION
119.
Establishment of the water tribunal
(1)

There is established a Water Tribunal.

(2)

There shall be a chairperson of the Water Tribunal appointed by the Judicial Service Commission on such terms and conditions as may be determined by the Judicial Service Commission.

120.
Staff of the Water Tribunal

The staff of the Tribunal shall be appointed, removed from office or otherwise disciplined by the Judicial Service Commission in accordance with Article 172 (1) (c) of the Constitution.

121.
Jurisdiction of the Tribunal
(1)

The Tribunal shall exercise the powers and functions set out in this Act and in particular shall hear and determine appeals at the instance of any person or institution directly affected by the decision or order of the Cabinet Secretary, the Authority and Regulatory Board or of any person acting under the authority of the Cabinet Secretary, the Authority and Regulatory Board.

(2)

In addition to the powers set out in subsection (1), the Tribunal shall have the power to hear and determine any dispute concerning water resources or water services where there is a business contract, unless the parties have otherwise agreed to an alternative dispute resolution mechanism.

122.
Proceedings of the Tribunal

The Tribunal shall make Rules governing its procedures.

123.
Determination of appeals and disputes

In determining an appeal, the Tribunal may affirm, quash or vary the decision or order.

124.
Appeals to the Land and Environment Court

A person aggrieved by a decision of the Tribunal may, within twenty-one days from the date of that decision, appeal to the Land and Environmental Court, established under article 162(2) of the Constitution on an issue of law.

125.
Decisions binding If no appeal within thirty days

A decision of a water basin organization, the Authority, the Regulatory Board or the Tribunal against which no appeal has been preferred within thirty days from the date on which the decision was made, shall be binding on all parties.

PART VII — FINANCIAL PROVISIONS
126.
Funds of the Authority, Regulatory Board, Water Harvesting and Storage Authority and Water Works Development Agencies

The funds of the Authority, Regulatory Board, Water Storage Authority, Water Sector Trust Fund, and water works development agencies shall respectively consist of —

(a)

monies allocated by Parliament for the purposes of the each body corporate established under this Act;

(b)

such monies or assets as may accrue to each body corporate in the course of the exercise of its powers or in the performance of its functions under this Act; and

(c)

all monies from any other source provided, donated or lent to each body corporate respectively.

127.
Financial year

The financial year of each body corporate established under this Act shall be the period of twelve months beginning the first July and ending on the thirtieth June in each year.

128.
Annual estimates
(1)

Three months before the commencement of each financial year, each body corporate established under this Act shall cause to be prepared estimates of the revenue and expenditure of the body corporate for that year.

(2)

The annual estimates shall make provision for all the estimated expenditure of the respective body corporate for the financial year concerned and in particular, shall provide for—

(a)

the payment of the salaries, allowances and other charges in respect of the staff of the body corporate;

(b)

the payment of pensions, gratuities and other charges and in respect of benefits which are payable out of the funds of the body corporate;

(c)

the maintenance of the buildings and grounds of the body corporate;

(d)

the funding of training, research and development of activities of the body corporate; and

(e)

the creation of such funds to meet future or contingent liabilities in respect of benefits, insurance or replacement of buildings or installations, equipment and in respect of such other matters as the body corporates may consider necessary.

129.
Accounts and audit
(1)

Every body corporate established under this Act shall cause to be kept all proper books and records of account of the income, expenditure, assets and liabilities.

(2)

Within a period of three months after the end of each financial year, each body corporate shall submit to the Auditor-General the accounts of the body corporate in respect of that year together with a —

(a)

statement of the income and expenditure of the body corporate during that year; and

(b)

statement of the assets and liabilities of the body corporate on the last day of that financial year.

(3)

The annual accounts of the body corporate shall be prepared, audited and reported upon in accordance with the provisions of the Constitution and the Public Audit Act, 2015 (No 34 of 2015).

130.
Retention of charges and fees

The Authority, the Regulatory Board and the Water Storage Authority may, subject to the Public Finance Management Act, 2012 (No. 12 of 2012) retain in a fund managed by the respective bodies, the revenue from permit charges, water user fees, regulatory levy, licence fees and any other authorized charges and shall use such revenue in meeting the costs incurred in the performance of their functions.

131.
Funds collected by water services providers
(1)

All funds collected for water services by the licensed water services providers holding county or national public assets on behalf of the public through water services bills and other sources, shall be used entirely for the purpose of covering costs for the provision of water services and asset development according to Regulations made by the Regulatory Board.

(2)

The licensed water services providers shall not be required to pay any fees for the use of public assets for the provision of water services other than the repayments of loans acquired for the development of those assets.

(3)

Dividends or other payments shall not be paid to the owners of public water services providers as long as the universal rights of access to safe and clean water have not been achieved in the designated service areas.

132.
Income from water permits abstraction and water user fees

All income through water permits, abstraction and water user fees shall be entirely used for the conservation and management of water resources.

PART VIII —GENERAL PROVISIONS
133.
Service of notices
(1)

Any notice required to be served under this Act shall be served—

(a)

by delivering it personally to the person required to be served, or, if such person is absent or cannot be found —

(i) by leaving it at the person's usual or last known place of abode in Kenya;
(ii) by post, addressed to the person's usual or last known address in Kenya; or
(b)

in the case of a notice required to be served on a local authority, company or other corporate body, by delivering it to its principal officer or by leaving it at such principal officer's office with a person employed there, or by registered post.

(2)

lf any landholder is not known and, after diligent inquiry, cannot be found, such notice may be served by leaving it, addressed to such landholder, with an occupier of the land or, if there is no apparent occupier, by causing it to be put in a conspicuous position on the property in Kenya last known to have been occupied by the landholder.

(3)

Any notice required to be given to a landholder may be addressed to the owner of land or premises described in the address in respect of which the notice is given.

134.
Order, etc., to be in writing

Any order, notice, consent, approval, permission, demand, objection, application, standard or other thing authorised or required by this Act to be given, made, set, determined or issued by or to the Cabinet Secretary, the Authority, Regulatory Board, a county government executive, a licensee or other state organ shall be in writing.

135.
Authentication of documents
(1)

Any order, notice, consent, approval, demand or other document which the Authority, the Regulatory Board, county government executive, or other state organ is authorised or required by this Act to give, make or issue may be signed on its behalf—

(a)

by the Chief Executive Officer of the relevant institution; or

(b)

by any officer of the institution authorised by it in writing to sign documents of the particular kind or to sign the particular document.

(2)

Any document purporting to bear the signature of any person—

(a)

expressed to hold an office by virtue of which he or she is, under this section empowered to sign a document; or

(b)

expressed to be duly authorised by the respective state organ in subsection (1) to sign such a document or the particular document,

shall, for the purposes of this Act, be deemed, unless the contrary is proved, to be duly given, made or issued on behalf of the Authority, the Regulatory Board, or other state organ as the case may be.

136.
Permit or licence to be evidence of power or function

The production of—

(a)

a permit, or a copy of a permit, certified by the Chief Executive Officer of the Authority; or

(b)

a licensing certificate or copy of the licensing certificate, certified by the Chief Executive Officer of the Regulatory Board; or

(c)

a licence, or a copy of a licence, certified by the Chief Executive Officer of the Regulatory Board.

shall, without further proof be prima facie evidence in any proceedings of the matters and things specified therein.

137.
Protection from liability

No matter or thing done or omitted by —

(a)

the Cabinet Secretary, the Authority, the Regulatory Board, or other state organ exercising powers or functions under this Act;

(b)

any person acting at the direction of the Cabinet Secretary; or

(c)

a person acting at the direction of the Authority, the Regulatory Board, or a state organ

shall, if the matter or thing was done or omitted in good faith for the purpose of executing this Act or any rule, regulation or order made under this Act, subject the person in his or her personal capacity to any action, suit, claim or demand whatsoever.

138.
Application of Act to community land

Despite anything contained in this Act, any powers and functions conferred or imposed under this Act affecting land shall, in respect of community land, be exercised and performed subject to any written law relating to that land.

139.
Public consultation
(1)

A requirement imposed by or under this Act for a person in this section referred to as the designated person to undertake public consultation in relation to any application made, or action proposed to be taken under this Act shall be construed as a requirement to ensure that this section is complied with in relation to that application or action.

(2)

The designated person shall publish a notice in relation to the application or proposed action —

(a)

in at least one national newspaper of daily circulation; and

(b)

in at least one Kenyan radio station broadcasting in that locality.

(3)

The notice shall —

(a)

set out a summary of the application or proposed action;

(b)

state the premises at which the details of the application or proposed action may be inspected;

(c)

invite written comments on or objections to the application or proposed action;

(d)

specify the person or body to which any such comments are to be submitted; and

(e)

specify a date not earlier than thirty days after publication of the notice by which any such comments are required be received.

(4)

The designated person shall make arrangements for the public to obtain copies, at reasonable cost, of documents relating to the application or proposed action which are in the possession of the designated person.

(5)

The designated person shall consider —

(a)

any written comments received on or before the date specified under subsection (3)(e); and

(b)

any comments whether in writing or not received at any public meeting held in relation to the application or the proposed action at which the designated person was represented or pursuant to any other invitation to comment.