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PART I – PRELIMINARY
1. |
Short title
This Act may be cited as the Energy Act.
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2. |
Interpretation
In this Act, unless the context otherwise requires—
"agent" means a person appointed in writing by the Authority to perform any of its functions;
"Agency" means the Nuclear Power and Energy Agency established under section 54 of this Act;
"area of supply" means the area within which the licensee is for the time being authorised to supply electrical energy;
"Authority" means the Energy and Petroleum Regulatory Authority established under section 9;
"biomass" means non-fossilised and biodegradable organic material originating from plants, animals and micro-organisms and includes bio-ethanol, bio-diesel, biogas, charcoal, fuel-wood and agro-waste;
"Board" means the Board of Directors of the various institutions under the Act;
"building" has the meaning assigned to it under the relevant written law;
"bulk supply" means the supply of electrical energy by a licensee to another licensee for the purpose of enabling the supply of electrical energy to consumers;
"Cabinet Secretary" means the Cabinet Secretary for the time being responsible for energy;
"coal" includes anthracite, bituminous coal, sub-bituminous coal, lignite, and peat;
"co-generation" means a process which simultaneously produces two or more forms of useful energy;
"company" means a company within the meaning of the Companies Act (Cap. 486);
"Competition Authority" means the Authority established under section 7 of the Competition Act (Cap. 504);
"compulsory acquisition" has the meaning assigned to it under the relevant written law;
"conductor" means an electrical conductor connected or arranged to be electrically connected to a system;
"conservation" means any reduction in consumption of energy as a result of increase in the efficiency in supply and use of energy;
"consumer" means any person supplied or entitled to be supplied with electrical energy or petroleum;
"Corporation" means the Rural Electrification and Renewable Energy Corporation established under section 43;
"danger" means risk to the environment, health, life, person or property of anyone from shock, fire or otherwise arising from the importation, exportation, generation, transmission, distribution, supply and use of electrical energy or from the exploration, production, importation, exportation, transportation, refining, storage and sale of coal, or from the production, storage, distribution and supply of any other form of energy;
"distributed generation" means a system of small generation plants supplying directly to the distribution system, any one of which does not exceed ten thousand kilowatts in capacity;
"distribution" means the ownership, operation, management or control of facilities for the movement or delivery of energy to enable supply to consumers;
"distribution licence" means any document or instrument authorizing a person to operate a distribution system for the purpose of enabling supply of electrical energy to consumers or to other licensees;
"distribution of electricity" means the conveyance of electricity by a distribution licensee through its distribution system;
"distribution licence", means any document or instrument authorizing a person to distribute energy in the manner described in such document or instrument in that person's authorised area of supply for the purpose of enabling supply to premises in that area and to also receive bulk supply from another licensee;
"distribution system" means a system, works, plant, equipment or service for the delivery or supply of energy directly to the consumers, but does not include a power plant or transmission line;
"electric supply line" means a wire, conductor or other means used for the purpose of conveying, transmitting, transforming or distributing electricity, together with a casing, coating, covering, tube, pipe, pillar, pole or tower, post, frame, bracket or insulator enclosing, surrounding or supporting it or part of it, or an apparatus connected therewith for the purpose of conveying, transmitting, transforming or distributing electricity;
"electrical energy" means energy involving the use of electric current which may be produced either by mechanical, chemical, photovoltaic or any other means;
"electrical installation" means an electric supply line or electrical apparatus placed in, on or over land or a building and used or intended to be used for or for purposes incidental to the conveyance, control or use of electricity supplied or intended to be supplied by a licensee, and includes additions and alterations to an electrical installation;
"electrical installation licence" means a licence authorizing a person to carry out electrical installation work for, business, training, or teaching purposes either for gain or reward or for no charge at all;
"electrical installation work" means the work of installing, altering or adding to an electrical installation and the supervision of such work;
"electrical plant" means any plant, equipment, apparatus or appliance or any part thereof used for, or connected with, the generation, transmission, distribution or supply of electricity but does not include—
(a) |
an electric supply line; or
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(b) |
a meter used for ascertaining the quantity of electricity supplied to any premises; or
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(c) |
an electrical equipment, apparatus or appliance under the control of a consumer;
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"electrical worker" means a person who carries out electrical installation work specified in the certificate issued to him under section 149;
"electricity market" means the market where licensees who are authorized to generate, import or export electric power offer to sell electrical energy to retail licensees for resale to consumers through the power systems operated by licensees who are authorized to carry out transmission and distribution of electricity and includes all the rules and regulations governing transactions between licensees, the system operator and consumers;
"eligible consumer" means a consumer that is allowed to choose any licensee to be his supplier and with whom he may contract for the purchase of electrical energy for his own use, in accordance with regulations made under this Act;
"energy" means any source of electrical, mechanical, hydraulic, pneumatic, chemical, nuclear, or thermal power for any use; and includes electricity, petroleum, coal, geothermal, biomass and all its derivatives, municipal waste, solar, wind and tidal wave power;
"energy audit" means the verification, monitoring and analysis of use of energy including submission of technical report containing recommendations for improving energy efficiency with cost benefit analysis and an action plan to reduce energy consumption;
"energy conservation" means the efficient, economic and cost effective production and use of energy;
"energy conservation building codes" means the norms and standards of energy consumption expressed in terms of per square meter of the area wherein energy is used and includes the location of the building;
"equipment or appliance" means any equipment or appliance which consumes, generates, transmits or supplies energy and includes any device that consumes any form of energy;
"exclusive economic zone" has the meaning assigned to it in the Maritime Zones Act (Cap. 371);
"factory" has the meaning assigned to it under the Occupational Safety and Health Act (Cap. 236A);
"feed-in tariff system" means a system that promotes generation of electricity from renewable energy sources;
"gas" means methane, ethane, propane, butane or hydrocarbons which may consist of one or more of any of those gases, either in the form of gas or liquid;
"generate" means to produce electricity from a generating station for the purpose of giving supply to any premises or enabling a supply to be so given;
"generating entity" means any person who owns or operates or maintains a generating station;
"generating licence" means a licence authorising a person to generate electrical energy;
"generating station" means any station for generating electricity, including any buildings and plant used for the purpose, and the site thereof, but does not include any station for transforming (other than generator transformers), converting or distributing electrical energy;
"grid" means the network of transmission systems, distribution systems and connection points for the movement and supply of electrical energy from generating stations to consumers;
"installation" includes all material, wiring or apparatus situated upon any premises for use or intended for use in connection with the supply of energy;
"Kenya Standard" means a specification or code of practice declared by the Council under the Standards Act (Cap. 496);
"large hydro" means a hydro power plant with a generation capacity exceeding ten megawatts;
"licence" means any document or instrument in writing granted under this Act, to any person or authorizing the importation, exportation, generation, transmission, distribution and supply of electrical energy or the exploration and production of geothermal energy, in the manner described in such document or instrument;
"licensee" means a holder of any licence issued under this Act;
"licensing authority" means any person or body, including the Authority, with powers to grant, revoke or suspend a licence under this Act;
"local community" means a people living in a sub-county within which an energy resource under this Act is situated and are affected by the exploitation of that energy resource;
"local content" means the added value brought to the Kenyan economy from energy related activities through systematic development of national capacity and capabilities and investment in developing and procuring locally available work force, services and supplies, for the sharing of accruing benefits;
"meter" means any type of machine, device or instrument used for the measurement of the quantity of electrical energy, and includes such auxiliary appliances as resistors, shunts, reactances, current transformers, voltage transformers and time switches external and necessary to the meter;
"natural gas" means hydrocarbons that are in a gaseous phase at atmospheric conditions of temperature and pressure, including wet mineral gas, dry mineral gas, casing head gas and residue gas remaining after the extraction or separation of liquid hydrocarbons from wet gas and non-hydrocarbon gas produced in association with liquid or gaseous hydrocarbons;
"open access" means the non-discriminatory provision for the use of an electric transmission or distribution system by any licensee or consumer;
"outer continental shelf" means the outer continental shelf as defined in the United Nations Convention on the Law of the Sea or all submerged lands seaward and outside the area of lands beneath navigable waters;
"permit" means an authorisation granted to a person to enable the carrying out of any activity in the energy business in accordance with this Act;
"person" means any natural or juridical person;
"petroleum" means all natural organic substances composed of carbon and hydrogen and includes oil and natural gas and all other mineral substances, products, by-products and derivatives that are found in conjunction with such substances;
"pollution" means any direct or indirect alteration of the physical, thermal, chemical, biological or radioactive properties of any part of the environment by discharging, emitting or depositing wastes or emitting noise so as to affect any beneficial use adversely, to cause a condition which is hazardous or potentially hazardous to public health, safety or welfare or to animals, birds, wildlife, fish or aquatic life, land and water sources or to plants or to cause a contravention of any condition, limitation or restriction which is subject to a licence under this Act;
"power" means electrical power or the quantity of electrical energy per unit of time;
"power system" means the electricity supply system including the generating stations, transmission and distribution networks operated as an integrated system or otherwise for the purpose of enabling supply of electrical energy;
"premises" includes any land, building or structure;
"public" means the Government or any department or branch of the Government;
"public lamp" means any electric lamp, which is under the control of a public authority, person or group of persons, used for the lighting of any street;
"renewable energy" means non-fossil energy generated from natural non-depleting resources including but not limited to solar energy, wind energy, biomass energy, biological waste energy, hydro energy, geothermal energy and ocean and tidal energy;
"retail" means—
(a) |
selling or offering to sell energy to a consumer;
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(b) |
acting as agent or broker for a retailer with respect to the sale or offering for sale of energy; or
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(c) |
acting or offering to act as an agent or broker for a consumer with respect to the sale or offering for sale of energy;
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"retail supply licence" means any document or instrument authorizing a person to supply electrical energy in the manner described in such document or instrument to any premises and such licence shall also entitle the licensee to receive a bulk supply from another licensee;
"reticulation" means the planning and construction of the network used to supply energy to a consumer and in the case of—
(a) |
electricity, it is planning and construction of the network consisting of low and medium voltage electric supply lines together with service lines to enable a consumer get supply of electricity; and
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(b) |
gas, it is the system through which a consumer gets a continuous supply of gas at the turn of a tap through a piping network from a centralised storage system or gas pipeline;
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"service line" means any portion of any electric supply line through which electrical energy is or is intended to be supplied by a licensee—
(a) |
to a consumer either directly from the premises of the licensee, or from a distributing main; or
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(b) |
from a distributing main to a group of consumers on the same premises or on adjoining premises supplied from the same point of the distributing main up to the point where such electric supply line reaches the supply terminals;
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"small hydro" means a hydro power plant with a generation capacity not exceeding ten megawatts;
"social impact assessment" means a method of analysing the impacts of a proposed activity, project or plan on the social aspects of the environment which include, without limitation, the way—
(a) |
people cope with life through their economy, social systems, and cultural values;
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(b) |
people use the natural environment, for subsistence, recreation, spiritual activities and cultural activities;
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(c) |
people use the built environment for shelter, making livelihoods, industry, worship, recreation and gathering together;
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(d) |
communities are organised and held together by their social and cultural institutions and beliefs; and
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(e) |
of life that communities value as expressions of their identity;
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"specification" has the meaning assigned to it in the Standards Act (Cap. 496);
"strategic environmental assessment" means a formal and systematic process to analyse and address the environmental effect of policies, plans and programmes and other strategic initiatives;
"street" includes any way, road, lane, square, court, alley, passage, whether a thoroughfare or not, over which the public have a right of way, and also the roadway and footway over any public bridge, or causeway;
"sugar miller" means a person licensed to operate a sugar mill or a jaggery mill in Kenya for the production of sugar including refined sugar and other by-products;
"supply" in relation to electricity, means the sale of electricity to a licensee or consumer;
"supply terminals" means the ends of the electric supply lines upon any consumer's premises at which the supply of electrical energy is delivered from the service line of the licensee, and is situated—
(a) |
in any case where the supply of electrical energy is measured by a meter, at the point at which the conductor from the service line enters the meter, or, in respect of a conductor from the service line which does not pass through the meter, the point on such conductor nearest to the meter;
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(b) |
in any other case, at the point at which the conductor from the service line enters the consumer's main switch, or, if there is more than one main switch, that main switch on the consumer's premises which is nearest to the source of supply; or
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(c) |
in any case in which the supply of electrical energy is made to a public lamp, at the point of attachment to the distributing main of the electric supply line serving such public lamp;
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"system" means an electrical system or grid in which all the conductors and apparatus are electrically connected to a common source of electrical energy;
"system operations" means performance of generation scheduling, commitment and dispatch, scheduling of transmission and ancillary services, and generation outage co-ordination, transmission congestion management and co-ordination, and such other activities as may be required for the reliable and efficient operation of the grid;
"tariff" means a set of prices, rates, charges, and any cost associated with capacity, supply and delivery of energy which may vary by category of consumers, service voltage or time of use, and may include any adjustments, as approved by the Authority;
"transmission" means the operation, management or control of facilities, consisting of high voltage electric supply lines for movement of electrical energy in bulk between generating stations and transmission substations for the purposes of enabling supply;
"transmission licence" means any document or instrument authorizing a person to transmit electrical energy in the manner described in such document or instrument, such licence may also entitle the licensee to carry out system operations of the grid;
"transmission system" means a system, works, plant or equipment for the transmission of electricity but does not include power plant or distribution system;
"Tribunal" means the Energy and Petroleum Tribunal established under section 25;
"undertaking" means any business undertaken pursuant to a licence or a permit and includes all the assets and liabilities from time to time constituting or belonging or appertaining to such business, whether public or private, for—
(a) |
the importation, exportation, generation, transmission, distribution and supply of electrical energy; or
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(b) |
the production, storage, distribution or supply of any other form of energy;
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but does not include an undertaking which the Authority in consultation with the Cabinet Secretary, by statutory instrument, declares not to constitute an undertaking for the purposes of this Act;
"use of electrical energy" means the conversion of electrical energy into chemical energy, mechanical energy, sound, heat or light, or the use or application of electrical energy to or for any of the purposes for which it may be or become or be found to be adapted;
"vandalise" means to commit any wilful, negligent, reckless or malicious act which destroys or damages energy infrastructure;
"voltage" means the effective difference of electrical potential between any two conductors, or between a conductor and the earth, and is said to be—
(a) |
low when it does not exceed one thousand volts under normal conditions, subject however to the percentage variation allowed by any regulations made under this Act;
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(b) |
medium when it exceeds one thousand volts but does not exceed thirty three thousand volts under normal conditions, subject however to the percentage variation allowed by any regulations made under this Act; and
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(c) |
high when it normally exceeds thirty three thousand volts under normal conditions, subject however to the percentage variation allowed by any regulations made under this Act;
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"wheeling" means the operation whereby the transmission system, distribution system and associated facilities of a transmission licensee or distribution licensee, as the case may be, are used by another person for the conveyance of electricity on payment of charges to be determined under section 136; and
"works" means—
(a) |
electric supply lines, machinery, lands, buildings, structures, earth works and water works, and includes any apparatus or things of whatsoever description, required for the importation, exportation, generation, transmission, distribution supply and use of electrical energy; or
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(b) |
machinery, land, buildings, structures, earth works and water works, and includes any apparatus required for the production, importation, exportation, storage, transportation, distribution and supply of any other form of energy.
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3. |
Act to prevail
(1) |
If there is a conflict between this Act and any other Act, this Act shall prevail on the following matters—
(a) |
the importation, exportation, generation, transmission, distribution, supply or use of electrical energy;
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(b) |
the exploration, production, transportation, distribution, and supply of any other form of energy; and
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(c) |
all works and apparatus for any or all of these purposes.
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(2) |
Save where this Act expressly provides otherwise, any licence granted or anything done under this Act shall not affect the right, privilege, obligation or liability acquired by any licensee or other person in any contract or under any written law prior to the commencement of this Act.
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PART Il – ENERGY POLICY AND INTEGRATED ENERGY PLAN
4. |
National energy policy
(1) |
The Cabinet Secretary shall in consultation with the relevant stakeholders develop and publish a national energy policy which shall be reviewed every five years.
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(2) |
Within three months after the end of each financial year, the Cabinet Secretary shall prepare and publish a report on the implementation of the national energy policy.
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5. |
Integrated national energy plan
(1) |
The Cabinet Secretary shall in consultation with the relevant stakeholders develop, publish and review energy plans in respect of coal, renewable energy and electricity so as to ensure delivery of reliable energy services at least cost.
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(2) |
Each national energy service provider shall develop and submit to the Cabinet Secretary plans for provision of energy services in accordance with its mandate.
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(3) |
Each County Government shall develop and submit a county energy plan to the Cabinet Secretary in respect of its energy requirements.
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(4) |
The Cabinet Secretary shall consolidate the plans contemplated in subsections (2) and (3) into an integrated national energy plan which shall be reviewed after every three years.
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(5) |
(a) |
take into account the national energy policy;
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(b) |
serve as a guide for energy infrastructure investments;
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(c) |
take into account all viable energy supply options; and
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(d) |
guide the selection of the appropriate technology to meet energy demand.
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(6) |
The Cabinet Secretary shall prescribe regulations on the content and timelines for the preparation of the energy plans.
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6. |
Monitoring implementation of National integrated energy plan
Within three months after the end of each financial year, the Cabinet Secretary shall prepare and publish a report on the implementation of the national integrated energy plan.
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7. |
Obligation to provide energy in all areas
(1) |
The Government shall facilitate the provision of affordable energy services to all persons in Kenya.
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(2) |
Where the National or County Government determines that a supply of energy in any area is necessary and upon assessment it is established to be commercially inexpedient to provide for the necessary reticulation by any licensee, the Cabinet Secretary or County Executive Committee member as the case may be, may undertake the provision of any such works or provide the funds necessary for the development of such works.
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(3) |
Without limiting the generality of subsection (2), the Cabinet Secretary shall develop and implement a fair, transparent and equitable strategy to ensure that all households are connected to a supply of electricity by 2030.
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8. |
Promotion of energy investments
(1) |
The Cabinet Secretary shall develop a conducive environment for the promotion of investments in energy infrastructure development, including formulation of guidelines in collaboration with relevant county agencies on the development of energy projects and to disseminate the guidelines among potential investors.
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(2) |
In its effort to promote energy investments, the National and County Governments shall facilitate the acquisition of land for energy infrastructure development in accordance with the law.
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PART III – NATIONAL ENERGY ENTITIES
Energy and Petroleum Regulatory Authority
9. |
Establishment of the Energy and Petroleum Regulatory Authority
(1) |
There is established the Energy and Petroleum Regulatory Authority hereinafter referred to as the Authority.
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(2) |
The Authority shall be a body corporate with perpetual succession, a common seal and shall in its corporate name be capable of—
(b) |
taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;
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(c) |
borrowing and lending money; and
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(d) |
doing or performing all other things or acts for the furtherance of the provisions of the Act which may be lawfully done or performed by a body corporate.
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(3) |
Except as otherwise provided in this Act, the Authority shall be independent in the performance of its functions, exercise of its powers and shall not be subject to the direction or control of any person or authority.
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10. |
Functions of the Authority
The functions of the Authority shall be to—
(a) |
(i) |
generation, importation, exportation, transmission, distribution, supply and use of electrical energy with the exception of licensing of nuclear facilities; |
(ii) |
importation, refining, exportation, transportation, storage and sale of petroleum and petroleum products with the exception of crude oil; |
(iii) |
production, conversion, distribution, supply, marketing and use of renewable energy; |
(iv) |
exploration, extraction, production, processing, transportation, storage exportation, importation and sale of coal bed methane gas and other energy forms; |
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(b) |
regulate, monitor and supervise upstream petroleum operations in Kenya in accordance with the law relating to petroleum, the regulations made thereunder and the relevant petroleum agreement;
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(c) |
provide such information and statistics in relation to upstream petroleum operations in Kenya to the Cabinet Secretary responsible for matters relating to petroleum as may be required from time to time;
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(d) |
collect, maintain and manage upstream petroleum data;
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(e) |
receive, review and grant an application for a non-exclusive exploration;
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(f) |
co-ordinate the development of upstream petroleum infrastructure and promote capacity building in upstream petroleum operations;
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(g) |
inspect and test any machinery or equipment that has been used, is used or shall be used in upstream petroleum operations;
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(h) |
assess field development plans and make recommendations to the Cabinet Secretary responsible for matters relating to petroleum for approval, amendment or rejection of the plans;
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(i) |
assess tail-end production and cessation of upstream petroleum operations and oversee decommissioning by a contractor;
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(j) |
verify the measurements of petroleum production to allow for estimation and assessment of royalties and profits of oil and gas due to the National Government;
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(k) |
verify the recoverable cost of oil and gas due to the parties to a petroleum agreement;
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(l) |
audit contractors for cost recovery;
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(m) |
monitor in consultation with the Competition Authority conditions of contractors' operations and their trade practices;
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(n) |
provide information to the relevant authority for the collection of taxes and fees from upstream petroleum operations;
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(o) |
set, review and approve contracts, tariffs and charges for common user upstream petroleum facilities;
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(p) |
make proposals to the Cabinet Secretary responsible for matters relating to petroleum in relation to regulations which may be necessary or expedient for the regulation of the upstream petroleum sector or for carrying out the objects and purposes of this Act;
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(q) |
work with the relevant statutory authorities to formulate, enforce and review environmental, health, safety and quality standards for the upstream petroleum sector;
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(r) |
develop guidelines, in consultation with other statutory authorities, in relation to the implementation of treaties, conventions or protocols affecting the upstream petroleum sector that have been ratified by Kenya;
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(s) |
regulate contracts on upstream petroleum operations not specifically provided for under the law relating to petroleum;
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(t) |
advice the Cabinet Secretary responsible for matters relating to petroleum in the evaluation of the bids and applications made for upstream petroleum blocks;
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(u) |
ensure that contractors uphold the relevant laws, regulations and petroleum agreement terms;
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(v) |
ensure optimal levels of recovery of petroleum resources;
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(w) |
promote well planned, executed and cost-efficient operations;
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(x) |
ensure optimal utilization of existing and planned facilities;
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(y) |
ensure the establishment of a central database of persons involved in upstream petroleum operations;
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(z) |
manage upstream petroleum data and provide periodic updates and publication of the status of upstream petroleum operations;
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(aa) |
take such action as is necessary to enforce the requirements in a petroleum agreement or any regulations and to protect the environment, the health and safety of workers and the public;
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(bb) |
ensure and facilitate competition, access and utilization of facilities by third parties;
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(cc) |
prescribe the form and manner in which any application for any authority, consent or approval under the law relating to petroleum shall be made;
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(dd) |
investigate complaints or disputes arising from petroleum operations;
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(ee) |
enforce local content requirements;
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(ff) |
issue operational permits and non-exclusive exploration permits in accordance with the law relating to petroleum;
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(gg) |
ensure enforcement and compliance with the national values and principles;
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(hh) |
protect consumer, investor and other stakeholder interests;
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(ii) |
provide such information and statistics to the Cabinet Secretary as the Cabinet Secretary may from time to time require;
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(jj) |
collect and maintain energy data;
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(kk) |
develop guidelines on applicable treaties, conventions and protocols affecting the energy sector in consultation with other statutory authorities except those relating to nuclear energy;
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(ll) |
co-ordinate the development and implementation of a national energy efficiency and conservation action plan, in consultation with relevant statutory authorities and other stakeholders;
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(mm) |
develop testing and certification procedures, in conjunction with relevant statutory agencies, for certification and testing for energy consumption of equipment and appliances;
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(nn) |
ensure, in collaboration the Kenya Bureau of Standards, that only energy efficient and cost effective appliances and equipment are imported into the country;
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(oo) |
certify energy managers and license energy auditors;
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(pp) |
promote, in consultation with the Kenya National Accreditation Service, the establishment of accredited laboratories for energy efficiency; and
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(qq) |
perform any other function that is incidental or consequential to its functions under this Act or any other written law.
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11. |
Powers of the Authority
The Authority shall have all powers necessary for the performance of its functions under this Act and in particular, the Authority shall have the power to—
(a) |
issue, renew, modify, suspend or revoke licences and permits for all undertakings and activities in the energy sector;
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(b) |
set, review and approve contracts, tariffs and charges for common user petroleum logistics facilities and petroleum products;
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(c) |
set, review and adjust electric power tariffs and tariff structures and investigate tariff charges, whether or not a specific application has been made for a tariff adjustment;
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(d) |
prescribe the form and manner in which any application for any authority, licence, consent or approval under this Act shall be made and the fees payable in respect of such application;
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(e) |
make and enforce directions to ensure compliance with this Act and with the conditions of licenses issued under this Act;
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(f) |
issue orders in writing requiring acts or things to be performed or done, prohibiting acts or things from being performed or done, and may prescribe periods or dates upon, within or before which such acts or things shall be performed or done or such conditions shall be fulfilled;
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(g) |
formulate, set, enforce and review environmental, health, safety and quality standards for the energy sector in coordination with other statutory authorities;
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(h) |
approve electric power purchase and network service contracts for all persons engaging in electric power undertakings;
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(i) |
investigate and determine complaints or disputes between parties over any matter relating to licences and licence conditions under this Act;
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(j) |
enter, inspect and search any premises where an offence is being committed or is suspected to have been committed;
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(k) |
issue orders or directions to ensure compliance with this Act;
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(l) |
impose such sanctions and fines not exceeding one hundred thousand shillings per violation per day for a maximum of thirty days;
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(m) |
enter, inspect and search any premises at which any undertaking relating to petroleum operations is carried out or an offence is being committed or is suspected to have been committed;
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(n) |
issue orders either requiring acts or things to be performed or done, prohibiting acts or things from being performed or done, and may prescribe periods or dates upon, within or before which such acts or things shall be performed or done or such conditions shall be fulfilled in furtherance of its powers under the law relating to petroleum;
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(o) |
impose such sanctions and civil fines not exceeding five hundred thousand shillings per violation per day to secure compliance with orders issued under the law relating to petroleum;
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(p) |
take or remove, for analysis, testing or for use in evidence in connection with the commission of an offence under the law relating to petroleum, samples of petroleum or other substances from any area where any upstream petroleum operations are being carried on; and
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(q) |
inspect, take extracts from, or make copies of any document relating to any upstream petroleum operations.
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12. |
Board of the Authority
(1) |
The management of the Authority shall vest in the Board of Directors of the Authority consisting of—
(a) |
a Chairperson who shall be appointed by the President;
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(b) |
the Principal Secretary responsible for Energy or his representative;
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(c) |
the Principal Secretary responsible for Petroleum or his representative;
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(d) |
the Principal Secretary in the National Treasury or his or her authorized representative;
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(e) |
one County Executive Committee member responsible for energy and petroleum or his representative nominated by the Council of County Governors;
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(f) |
the Director-General; and
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(g) |
five other members not being public officers appointed by the Cabinet Secretary.
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(2) |
A person shall be qualified for appointment as a Chairperson under subsection (1) (a) or member of the Board under subsection (1)(g) if such person—
(b) |
holds a degree from a university recognized in Kenya or its equivalent;
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(c) |
has at least seven years' relevant professional experience;
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(d) |
is a member in good standing of the relevant professional association; and
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(e) |
meets the requirements of leadership and integrity set out in Chapter Six of the Constitution.
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(3) |
The Chairperson and members of the Board under subsection (1)(g) shall be appointed at different times so that the respective expiry dates of their terms of office shall fall at different times.
|
|
13. |
Director-General
(1) |
The Board shall subject to the approval of the Cabinet Secretary, appoint a Director-General who shall be the chief executive officer of the Authority and shall, subject to the directions of the Board, be responsible for the day to day management of the Authority.
|
(2) |
The appointment of the Director-General under this section shall be through a competitive recruitment process.
|
(3) |
A person shall be qualified for appointment as a Director-General if such person—
(b) |
holds a degree from a university recognized in Kenya or its equivalent in the fields of engineering, physical sciences, law, finance, environmental studies, economics or energy;
|
(c) |
has at least seven years management experience at a senior level;
|
(d) |
has at least two years of experience in petroleum and energy;
|
(e) |
is a member in good standing of the relevant professional association; and
|
(f) |
meets the requirements of leadership and integrity set out in Chapter Six of the Constitution.
|
|
(4) |
The Director-General shall hold office for a term of three years and shall be eligible for re-appointment for one further term of three years.
|
(5) |
The Director-General shall be an ex officio member of the Authority but shall have no right to vote at any meetings of the Authority.
|
|
14. |
Conduct of business and affairs of the Board
The conduct and regulation of the business of the Board shall be as provided in the First Schedule, but subject thereto, the Board shall regulate its own procedure and the procedure of any committee constituted under the Act.
|
15. |
Terms of office, common seal, annual estimates and books of accounts
The terms of office, vacancy of office, removal from office of the members of the Board, the common seal, the financial year, annual estimates and books of accounts, records, audit and reports of the Authority shall be as accounts provided in the Second Schedule.
|
16. |
Staff of the Authority
The Authority may in consultation with the Public Service Commission, appoint such staff as it may require for the proper discharge of its functions under this Act, on such terms and conditions of service as the Authority may determine.
|
17. |
Remuneration of members of the Board
The Authority shall upon the advice of the Salaries and Remuneration Commission pay its members of the Board such remuneration, fees or allowances for expenses as it may determine.
|
18. |
Protection from personal liability
A matter or thing or an act done by a member of the Board or an officer, employee or agent of the Authority shall not, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the members of the Board, officer, employee or agent or any person acting on lawful directions of the Authority personally liable to any action, claim or demand whatsoever.
|
19. |
Liability of the Authority for damages
This Act shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to that person, that person's property or any of that person's interests caused by the exercise of any power conferred by this Act or by the failure, whether wholly or partially, of any works.
|
20. |
Funds of the Authority
(1) |
The funds of the Authority shall consist of—
(a) |
levies not exceeding one half of a percent on the sales of electricity and petroleum products;
|
(c) |
such monies or assets as may accrue to or vest in the Authority in the course of the exercise of its powers or the performance of its functions under this Act;
|
(d) |
such monies as may be provided by Parliament for the purposes of the Authority;
|
(e) |
any revenues generated from any proprietary interest held by the Authority whether movable or immovable;
|
(f) |
interest from bank deposits; and
|
(g) |
all monies from any other source provided for or donated or lent to the Authority:
Provided that any monies collected by the Authority including levies, fines and penalties in exercise of its functions shall be paid into the Consolidated Fund.
|
|
(2) |
Any funds retained by the Authority shall make part of the funds of the Authority by way of appropriation.
|
(3) |
The Cabinet Secretary responsible for matters relating to petroleum may make Regulations to provide for a levy prescribing—
(a) |
the amount in Kenya Shillings payable per cubic metre of crude oil;
|
(b) |
the amount of Kenya Shillings payable per one thousand cubic metre of marketable natural gas;
|
(c) |
when the relevant levy may be applied; and
|
(d) |
any other requirements for implementation of the levy.
|
|
(4) |
There shall be paid out of the funds of the Authority, all expenditure incurred by the Authority in the exercise of its powers or the performance of its functions under this Act.
|
|
21. |
Delegation of powers or functions to committees or agents
(1) |
The Authority may, by resolution either generally or in any particular case delegate to any committee of the Authority or to any member, officer, employee, self-regulated organization or agent of the Authority, the exercise of any of the powers or the performance of any of its functions or duties.
|
(2) |
Every such committee, officer, employee, self-regulated organisation or agent shall be appointed by the Authority in writing, setting out the duration of the appointment, the duties, reporting requirements, functions, authority and powers so conferred.
|
(3) |
The Authority may at any time revoke a delegation under this section.
|
(4) |
A delegation conferred under this section shall not prevent the Authority from performing the delegated function.
|
(5) |
In this section, a self-regulated organisation means an organisation whose object is to regulate the operations of its members or the users of its services and includes the organisations that may be recognised as such by the Authority.
|
|
22. |
Powers of committees or agents
(1) |
Subject to any other written law, a committee member, officer, employee or agent appointed under section 21 may, upon production of evidence of appointment to any person reasonably requiring it, for the purposes of this Act—
(a) |
enter upon any premises at which any undertaking is carried out or an offence under this Act is or is suspected to have been committed;
|
(b) |
inspect and test any process, installation, works or other operation which is or appears likely to be carried out in those premises;
|
(c) |
be accompanied by a police officer if there is a reason to believe that any serious obstruction may occur;
|
(d) |
require from any person the production of any book, notice, record, list or other document which appears to the committee, officer, employee or agent to have relevance to the inspection or inquiry, which is in the possession or custody or under the control of that person or of any other person on that committee's or agent's behalf;
|
(e) |
examine and copy any part of any book, notice, record, list or other document which appears to have relevance to the inspections or inquiry, and require any person to give an explanation of any entry therein, and take possession of any such book, notice, record, list or other document as the committee, officer, employee or agent believes may afford evidence of an offence under this Act;
|
(f) |
require information relevant to the committee, officer, employee or agent's inspection or inquiry from any person whom the committee, officer, employee or agent has reasonable grounds to believe is or has been employed at any such premises or to have in that person's possession or custody or under the person's control any article referred to in this subsection; or
|
(g) |
exercise such other powers as may be necessary in connection with the inspection or inquiry and other powers of his appointment under section 21.
|
|
(2) |
A committee, member, officer, employee or agent entering any premises under this section may be accompanied by such persons as the committee, officer, employee or agent deems necessary and may enter with such equipment as may be necessary for the performance of their functions.
|
(3) |
(a) |
the premises to which this section relates are unoccupied;
|
(b) |
the owner, occupier or person in charge thereof is temporarily absent; or
|
(c) |
entry thereon is refused or obstructed;
|
the committee, officer, employee or agent may use such force as is reasonably necessary to effect entry:
Provided that in the case of an entry under paragraph (a) or (b)—
(i) |
reasonable steps shall be taken prior to entry by the committee, officer, employee or agent to find the owner, occupier or person in charge of the premises to be entered; and |
(ii) |
the premises shall be left by the committee, officer, employee or agent as effectively secured against trespassers as they were found. |
|
(4) |
Where it is suspected that an undertaking is being carried contrary to any licence, permit or regulations issued under this Act, an officer or agent of the Authority may, in the course of his duty, lock up, seal, mark or otherwise secure—
(a) |
any building, room, place, receptacle or item of plant;
|
(b) |
any goods or materials in a factory; or
|
(c) |
aircraft, vessels, vehicles or containers.
|
|
(5) |
A person who, unless authorized, opens, breaks, alters or in any way interferes with a lock, seal, mark or other fastening placed by a committee, officer, employee or agent in accordance with the provisions of this section on any building, room, place, receptacle, item of plant, goods, or materials, commits an offence and shall, on conviction, be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding two years or to both.
|
(6) |
A person who resists, hinders or obstructs any committee, officer, employee or agent acting in the course of the committee's or agent's duty under this section or who wilfully fails to comply with any requirements lawfully made thereunder commits an offence and shall, on conviction, be liable to a fine of not exceeding one hundred thousand shillings for each day or part thereof that the obstruction occurs.
|
|
23. |
Decisions of the Authority
(1) |
The Authority shall within sixty days from the date of receipt of a request by an applicant, make its decision on any matter before it.
|
(2) |
A decision of the Authority shall be in writing and any order given and reasons thereof shall be served upon all parties to the proceedings, and may be published in the Gazette as prescribed by regulations.
|
(3) |
The Authority shall, within seven days of making a decision, communicate such decision to the parties involved.
|
(4) |
All orders of the Authority shall become effective on the date of entry thereof, and shall be complied with within the time prescribed therein.
|
(5) |
Where the Authority does not make a decision as provided in subsection (1) the appellant may appeal to the Tribunal within seven days of the expiry of the prescribed period.
|
|
24. |
Appeal against a decision of the Authority
(1) |
A person aggrieved by a decision of the Authority may appeal to the Tribunal within thirty days of receipt of the decision.
|
(2) |
Notwithstanding subsection (1), the Tribunal may entertain an appeal after the expiry of the thirty-day period if it is satisfied that there was sufficient cause for not filing it within that period.
|
|
25. |
Establishment of the Energy and Petroleum Tribunal
There is established the Energy and Petroleum Tribunal, hereinafter referred to as "the Tribunal", for the purpose of hearing and determining disputes and appeals in accordance with this Act or any other written law.
|
26. |
Members of the Tribunal
(1) |
The Tribunal shall consist of not more than seven members as follows—
(a) |
a chairperson who shall be appointed by the President from among persons qualified to be judges of the High Court and who has at least five years' experience in energy and petroleum matters; and
|
(b) |
six other persons possessing knowledge and experience in law, petroleum and energy and who are not in the employment of the Government, Agency or the Authority.
|
|
(2) |
The members of the Tribunal shall at the first meeting of the Tribunal elect a vice-chairperson who shall be a person qualified to be a judge of the High Court possessing at least five years' experience in energy and petroleum matters.
|
(3) |
A person shall be qualified for appointment under subsection (1) if that person—
(b) |
holds a degree in a relevant area from a university recognized in Kenya;
|
(c) |
is a member in good standing of the relevant professional association;
|
(d) |
meets the requirements of leadership and integrity set out in Chapter Six of the Constitution.
|
|
(4) |
The Chairperson, Vice-Chairperson and members of the Tribunal shall be appointed at different times so that the respective expiry dates of their terms office shall fall at different times.
|
(5) |
Within fourteen days of the commencement of this Act, or of the occurrence of a vacancy in the office of a member of the Tribunal, the Cabinet Secretary shall—
(a) |
by notice in the Gazette and in at least two newspapers of national circulation, declare vacancies in the Tribunal, and invite applications from qualified persons; and
|
(b) |
convene a selection panel for the purpose of selecting suitable candidates for appointment as members of the Tribunal.
|
|
(6) |
The selection panel shall at its first meeting appoint a chairperson and a vice-chairperson.
|
(7) |
An application in respect of a vacancy declared under subsection (5) shall be forwarded to the selection panel within fourteen days of the publication of the notice.
|
(8) |
The selection panel shall subject to this section determine its procedure and the Cabinet Secretary shall provide it with such facilities and other support as it may require for the discharge of its functions.
|
(9) |
The selection panel shall consider the applications, shortlist and publish the names and qualifications of all the applicants and those shortlisted by the panel in the Gazette and at least two daily newspapers of national circulation seven days from the expiry of the deadline of receipt of applications under subsection (7).
|
(10) |
The selection panel shall interview the shortlisted applicants fourteen days from the date of publication of the list of short listed applicants under subsection (9).
|
(11) |
After carrying out the interviews, the selection panel shall select three persons qualified to be appointed as members of the Tribunal, for each vacant position, and forward the names to the Cabinet Secretary.
|
(12) |
The Cabinet Secretary shall within seven days of receiving the names, by notice in the Gazette, appoint a member or members to the Tribunal.
|
(13) |
Where the Cabinet Secretary rejects the list of names forwarded under subsection (11) he shall submit a notice of rejection within seven days of receipt of the names.
|
(14) |
Upon the receipt of the notice of rejection under subsection (13), the selection panel shall submit fresh nominations and the procedure set out in this section shall with the necessary modifications apply.
|
(15) |
Notwithstanding any provision in this section, the Cabinet Secretary may by notice in the Gazette extend the period specified in respect of any matter under this section by a period not exceeding fourteen days.
|
(16) |
In selecting, nominating, approving or appointing the members of the Tribunal, the selection panel and the Cabinet Secretary shall—
(a) |
ensure that the nominees to the Tribunal reflect the interests of all sections of the society;
|
(b) |
ensure equal opportunities for persons with disabilities and other marginalized communities; and
|
(c) |
ensure that no more than two-thirds of the members shall be of the same gender.
|
|
(17) |
The selection panel shall stand dissolved upon the appointment of the members of the Tribunal.
|
(18) |
The members of the Tribunal shall hold office for a period of three years, but shall be eligible for reappointment for one further term.
|
|
27. |
Vacancy in the Tribunal
(1) |
The office of a member of the Tribunal shall become vacant—
(a) |
at the expiration of three years from the date of appointment;
|
(b) |
if the member accepts any office the holding of which, if he or she were not a member of the Tribunal, would make him or her ineligible for appointment to the office of member of the Tribunal;
|
(c) |
if he or she is removed from membership of the Tribunal by the Cabinet Secretary on the recommendation of a tribunal set up for that purpose under subsection (3); or
|
(d) |
if he or she dies or resigns from office.
|
|
(2) |
A person desiring the removal of a member of the Tribunal on the ground specified in subsection 1(c) may present a complaint under oath to the Cabinet Secretary setting out the alleged facts constituting that ground.
|
(3) |
The Cabinet Secretary shall consider the complaint and if satisfied that it discloses a ground under subsection 1(c)—
(a) |
may suspend the member pending the outcome of the complaint; and
|
(b) |
shall appoint a tribunal in accordance with subsection (4).
|
|
(4) |
The tribunal appointed under subsection (3)(b) shall consist of—
(a) |
a person who holds or has held office of a judge of a superior court, who shall be the chairperson;
|
(b) |
at least two persons who are qualified to be appointed as judge of the high court; and
|
(c) |
one other member who is qualified to assess the facts in respect of the particular ground for removal.
|
|
(5) |
The tribunal shall investigate the matter expeditiously, report on the facts and make a recommendation to the Cabinet Secretary who shall act in accordance with the recommendation within thirty days.
|
|
28. |
Oath of office
A person who is appointed a member of the Tribunal shall, before assuming the duties of the office, take and subscribe to the oath of allegiance to the office.
|
29. |
Disclosure of interest
Where a member of the Tribunal, as constituted for the purposes of a proceeding, has any interest, direct or indirect, that could conflict with the proper performance of the member’s functions, he or she shall disclose the interest to the parties to the proceeding and shall not be present during any deliberations on the matter by the Tribunal or take part in a decision of the Tribunal on the matter.
|
30. |
Secretary and other staff
(1) |
The Cabinet Secretary shall appoint the secretary to the Tribunal.
|
(2) |
A person shall be qualified to be appointed to hold office as secretary to the Tribunal under subsection (1) if such a person is an advocate of the High Court of Kenya of not less than seven years standing.
|
(3) |
The Tribunal may appoint such other staff as may be necessary for the proper discharge of the functions of the Tribunal under this Act.
|
|
31. |
Terms of office, common seal, annual estimates and books of accounts
The terms of office, vacancy of office, removal from office of the members of the Tribunal, the common seal, the financial year, annual estimates and books of accounts, records, audit and reports of the Tribunal shall be as provided in the Second Schedule.
|
32. |
Arrangement of business
(1) |
The Chairperson shall be responsible for ensuring the orderly and expeditious discharge of the business of the Tribunal.
|
(2) |
Without limiting the operation of subsection (1), the Chairperson shall give directions relating to the—
(a) |
arrangement of the business of Tribunal;
|
(b) |
places at which the Tribunal may sit generally; and
|
(c) |
procedure of the Tribunal at a particular place.
|
|
(3) |
The times and places of the hearings of the Tribunal shall be determined by the Chairperson with a view to securing a reasonable opportunity for applicants to appear before the Tribunal with as little inconvenience and expense as is practicable.
|
(4) |
The rules of procedure of the Tribunal shall be published in the Gazette by the Chairperson.
|
|
33. |
Quorum and conduct of business of the Tribunal
(1) |
The Chairperson shall preside at all sittings of the Tribunal at which he is present and in the absence of the Chairperson the Vice-Chairperson shall preside.
|
(2) |
The quorum of the Tribunal shall be three members including the Chairperson or the Vice-Chairperson as the case may be.
|
|
34. |
Technical advice
The Tribunal may seek technical advice from persons whose specialized knowledge or experience may assist the Tribunal in its proceedings:
Provided that such persons shall disclose any interest they may have in the matter before the Tribunal or any subsequent interest acquired relating to the matter in question.
|
35. |
Remuneration
(1) |
The Tribunal shall, in consultation with the Cabinet Secretary and upon the advice of the Salaries and Remuneration Commission, pay its members such remuneration, fees or allowances for expenses as it may determine from time to time.
|
(2) |
Any person who gives technical advice in accordance with section 34 to the Tribunal shall be paid such allowance as may be determined by the Tribunal.
|
(3) |
The members of the Tribunal shall serve on part-time basis.
|
|
36. |
Jurisdiction of the Tribunal
(1) |
The Tribunal shall have jurisdiction to hear and determine all matters referred to it, relating to the energy and petroleum sector arising under this Act or any other Act.
|
(2) |
The jurisdiction of the Tribunal shall not include the trial of any criminal offence.
|
(3) |
The Tribunal shall have original civil jurisdiction on any dispute between a licensee and a third party or between licensees.
|
(4) |
The Tribunal shall have appellate jurisdiction over the decisions of the Authority and any licensing authority and in exercise of its functions may refer any matter back to the Authority or any licensing authority for re-consideration.
|
(5) |
The Tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance.
|
(6) |
The Tribunal shall hear and determine matters referred to it expeditiously.
|
|
37. |
Power of review and appeals from Tribunal
(1) |
The Tribunal may, on its own motion or upon application by an aggrieved party, review its judgments and orders.
|
(2) |
Judgments and orders of the Tribunal shall be executed and enforced in the same manner as judgments and orders of a court of law.
|
(3) |
Any person aggrieved by a decision of the Tribunal may, within thirty days from the date of the decision or order, appeal to the High Court.
|
(4) |
The law applicable to applications for review to the High Court in civil matters shall, with the necessary modifications or other adjustments as the Chief Justice may direct, apply to applications for review from the Tribunal to the High Court.
|
|
38. |
Procedure of the Tribunal
(1) |
The Tribunal shall meet as and when there is need to exercise its jurisdiction under this Act.
|
(2) |
Unless a unanimous decision is reached, a decision on any matter before the Tribunal shall be by a majority of votes of the members present and in the case of an equality of votes, the Chairperson or the person presiding shall have a casting vote.
|
(3) |
The Tribunal shall conduct its proceedings without procedural formality but shall observe the rules of natural justice and rules of evidence of a similar nature.
|
(4) |
Except as prescribed in this Act, the Tribunal shall regulate its own procedure.
|
|
39. |
Funds of the Tribunal
(1) |
The funds of the Tribunal shall consist of—
(a) |
such monies as may, from time to time, be appropriated by Parliament for that purpose;
|
(b) |
interest from bank deposits; and
|
(c) |
grants as may approved by the Judicial Service Commission.
|
|
(2) |
There shall be paid out of the funds of the Tribunal, all expenditure incurred by the Tribunal in the exercise of its powers or the performance of its functions under this Act.
|
|
40. |
Appeals from decisions of the Authority
Where under this Act the provision is made for appeals from the decisions of the Authority or any licensing authority, all such appeals shall be made to the Tribunal, in accordance with the provisions of this Act.
|
41. |
Protection from personal liability
A matter or thing or act done by a member of the Tribunal or any officer, employee or agent of the Tribunal shall not, if the matter or thing is done bona fide for executing the functions, powers or duties of the Tribunal, render the member, officer, employee, agent or any other person acting on those directions personally liable to any action, claim or demand whatsoever.
|
42. |
Any reference that has been made to the court
The Tribunal shall have appellate jurisdiction to hear and determine appeals to all disputes arising from decisions of the Authority or licensing authority relating to energy matters and any matter referred to the Authority or any licensing authority.
|
43. |
Establishment of the Rural Electrification and Renewable Energy Corporation
(1) |
There is established the Rural Electrification and Renewable Energy Corporation herein referred to as the Corporation.
|
(2) |
The Corporation shall be a body corporate with perpetual succession, a common seal and shall in its corporate name, be capable of—
(b) |
taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;
|
(c) |
borrowing and lending money; and
|
(d) |
doing or performing all other things or acts for the furtherance of the provisions of the Act which may be lawfully done or performed by a body corporate.
|
|
|
44. |
Functions and powers of the Corporation
(1) |
The Corporation shall perform such functions and exercise such powers as may be necessary under this Act to—
(a) |
oversee the implementation of the Rural Electrification Programme;
|
(b) |
manage the Rural Electrification Programme Fund established under section 143;
|
(c) |
source additional funds for the Rural Electrification Programme and renewable energy;
|
(d) |
develop and update the rural electrification master plans in consultation with County Governments;
|
(e) |
develop and update the renewable energy master plan taking into account county specific needs and the principle of equity in the development of renewable energy resources;
|
(f) |
support the establishment of energy centres in the counties;
|
(g) |
establish framework for collaboration with County Governments in the discharge of its mandate;
|
(h) |
undertake on-farm and on station demonstration of wood-fuel species, seedling production and management;
|
(i) |
undertake feasibility studies and maintain data with a view to availing the same to developers of renewable energy resources;
|
(j) |
develop, promote and manage in collaboration with other agencies, the use of renewable energy and technologies, including but not limited to biomass (biodiesel, bio-ethanol, charcoal, fuel-wood, biogas) municipal waste, solar, wind, tidal waves, small hydropower and co-generation but excluding geothermal;
|
(k) |
formulate, in conjunction with the Agency, a national strategy for coordinating research in renewable energy;
|
(l) |
undertake, in conjunction with the Agency, research, development and dissemination of appropriate renewable energy technologies;
|
(m) |
provide an enabling framework for the efficient and sustainable production, conversion, distribution, marketing and utilization of biomass, solar, wind, small hydros, municipal waste;
|
(n) |
promote, in conjunction with the agency responsible for forests, the use of fast maturing trees for energy production including bio-fuels and the establishment of commercial woodlots including peri-urban plantations;
|
(o) |
promote, in collaboration with other agencies, the development of appropriate local capacity for the manufacture, installation, maintenance and operation of renewable technologies such as bio-digesters, solar systems, turbines and other renewable energy technologies;
|
(p) |
promote international co-operation programmes focusing on renewable energy sources;
|
(q) |
harness opportunities offered under clean development mechanism and other mechanisms including, but not limited to, carbon credit trading to promote the development and exploitation of renewable energy sources;
|
(r) |
promote the development of electricity generation through co-generation by sugar millers;
|
(s) |
provide technical and other capacity building support to County Governments in the discharge of the function of electricity reticulation and energy regulation; and
|
(t) |
undertake any other duty or perform such other function as may be necessary for the execution of its mandate under this Act.
|
|
(2) |
In developing the master plans contemplated under subsections (1)(d) and (e), the Corporation shall take into account the provisions of section 5(5) of this Act.
|
|
45. |
Board of the Corporation
(1) |
The management of the Corporation shall vest in the Board of Directors of the Corporation which shall consist of—
(a) |
a Chairperson appointed by the President;
|
(b) |
the Principal Secretary in the Ministry responsible for energy or his representative;
|
(c) |
the Principal Secretary in the National Treasury or his representative;
|
(d) |
the Chief Executive Officer who shall be the Secretary to the Board;
|
(e) |
three members appointed by the Cabinet Secretary; and
|
(f) |
four other members appointed by the Council of County Governors.
|
|
(2) |
A person shall be qualified for appointment as a chairperson or member of the Board under subsections (1)(a), (e) and (f) respectively if such person—
(b) |
holds a degree from a university recognized in Kenya or its equivalent in the fields of engineering, physical sciences, law, finance, economics, social sciences or energy;
|
(c) |
has at least seven years relevant professional experience;
|
(d) |
is a member in good standing of the relevant professional association; and
|
(e) |
meets the requirements of leadership and integrity set out in Chapter Six of the Constitution.
|
|
(3) |
The Chairperson and members under subsection (1)(e) and (f) shall be appointed at different times so that the respective expiry dates of their terms of office shall fall at different times.
|
|
46. |
Chief Executive Officer
(1) |
The Board shall appoint a Chief Executive Officer who shall be the chief executive of the Corporation and shall, subject to the directions of the Board, be responsible for the day to day management of the Corporation.
|
(2) |
The Chief Executive Officer shall be appointed through a competitive recruitment process.
|
(3) |
A person shall be qualified for appointment as a Chief Executive Officer if such person—
(b) |
holds a degree from a university recognized in Kenya or its equivalent in the fields of engineering, physical sciences, law, finance, economics or energy;
|
(c) |
has at least seven years relevant professional experience;
|
(d) |
is a member in good standing of the relevant professional association; and
|
(e) |
meets the requirements of leadership and integrity set out in Chapter Six of the Constitution.
|
|
(4) |
The Chief Executive Officer shall be an ex-officio member of the Board but shall have no right to vote at any meetings of the Board.
|
|
47. |
Conduct of business of the Corporation
The conduct and regulation of the business of the Board shall be as provided in the First Schedule, but subject thereto, the Board shall regulate its own procedure and the procedure of any committee thereof.
|
48. |
Terms of office, common seal, annual estimates and books of accounts
The terms of office, vacancy of office, removal from office of the members of Board, the common seal, the financial year, annual estimates and books of accounts, records, audit and reports of the Corporation shall be as provided in the Second Schedule.
|
49. |
Staff of the Corporation
The Corporation shall in consultation with the Public Service Commission appoint such staff as it may require for the proper discharge of the functions of the Corporation under this Act, on such terms and conditions of service as the Board may determine.
|
50. |
Remuneration of Board members
The Corporation shall, in consultation with the Cabinet Secretary and upon the advice of the Salaries and Remuneration Commission, pay its members such remuneration, fees or allowances for expenses as it may determine from time to time.
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51. |
Protection from personal liability
A matter or thing or act done by a member of the Board or any officer, employee or agent of the Corporation shall not, if the matter or thing is done bona fide for executing the functions, powers or duties of the Corporation, render the member, officer, employee, agent or any other person acting on those directions personally liable to any action, claim or demand whatsoever.
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52. |
Liability of the Corporation for damages
This Act shall not relieve the Corporation of the liability to pay compensation or damages to any person for an injury to that person, that person's property or any of the persons' interests caused by the exercise of the powers conferred on the Board by this Act or by any other written law or by the failure, whether wholly or partially, of any works.
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53. |
Funds of the Corporation
(1) |
The funds of the Corporation shall consist of—
(a) |
monies from the Rural Electrification Programme Fund established under section 143;
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(b) |
such monies as may, from time to time, be appropriated by Parliament for that purpose;
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(c) |
money's allocated from the consolidated energy fund for promotion and development of renewable energy initiatives;
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(d) |
interest from bank deposits; and
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(e) |
revenue from other sources including loans, grants, gifts or donations approved by the Cabinet Secretary.
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(2) |
There shall be paid out of the funds of the Corporation, all expenditure incurred by the Corporation in the exercise of its powers or the performance of its functions under this Act or any other written law.
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54. |
Establishment of the Nuclear Power and Energy Agency
(1) |
There is established the Nuclear Power and Energy Agency hereinafter referred to as the Agency.
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(2) |
The Agency shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of—
(b) |
taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; and
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(c) |
doing or performing all such other things or acts for the furtherance of the provisions of this Act or the performance of its functions which may lawfully be done by a body corporate.
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55. |
Headquarters
(1) |
The headquarters of the Agency shall be in Nairobi.
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(2) |
Subject to the provisions of any other written law as to the meetings of the Agency, the Agency may hold its sittings at any place in Kenya.
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56. |
Objects and functions of the Agency
(1) |
(a) |
be the nuclear energy programme implementing organization and promote the development of nuclear electricity generation in Kenya; and
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(b) |
carry out research, development and dissemination activities in the energy and nuclear power sector.
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(2) |
Notwithstanding the generality of sub section (1), the Agency shall—
(a) |
propose policies and legislation necessary for the successful implementation of a nuclear power programme;
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(b) |
undertake extensive public education and awareness on Kenya's nuclear power programme;
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(c) |
identify, prepare and facilitate implementation of an approved roadmap for a nuclear power programme;
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(d) |
in collaboration with the relevant Government agencies develop a comprehensive legal and regulatory framework for nuclear electricity generation in Kenya;
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(e) |
develop a human resource capacity to ensure Kenya has the requisite manpower to successfully establish and maintain a nuclear power programme;
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(f) |
identify appropriate sites in Kenya for the construction of nuclear power plants and their related amenities;
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(g) |
enter into collaborative programmes with other countries, international and national organisations in relation to nuclear electricity research and development;
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(h) |
identify a suitable operator for nuclear power plants;
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(i) |
establish a well-stocked library and information centre on nuclear science and technology;
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(j) |
promote local, regional and international participation in research activities, particularly in technology-oriented research;
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(k) |
put in place mechanisms to attract private sector funding in research and human resource development for matters relating to energy;
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(l) |
undertake a national research and human resource development road-mapping to assess the status of research in key energy technologies;
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(m) |
promote local production of energy technologies;
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(n) |
collaborate with institutions that collect, analyse and prepare policy papers in order to access energy sector specific information;
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(o) |
enhance research linkages between industry and academia in matters relating to energy;
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(p) |
continuously train and upgrade human resource capacity in the energy sector to keep up with the changing technological issues in collaboration with training institutions;
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(q) |
advise on training curriculum and training needs targeting key areas in the energy sector;
|
(r) |
direct, monitor, conduct and implement energy research and technology development in all fields of energy;
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(s) |
promote energy research and technology innovation;
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(t) |
(i) |
training and development in the field of energy and petroleum, research and technology development; and |
(ii) |
commercialization of energy technologies resulting from energy research and development programmes; |
|
(u) |
register patents and intellectual property in its name resulting from its activities;
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(v) |
authorize other persons for the use of its patents and intellectual property on such terms as the Agency may deem fit;
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(w) |
publish its research findings and other research materials;
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(x) |
establish facilities for the collection and dissemination of information in connection with research, development and innovation in the energy sector;
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(y) |
undertake any other energy technology development related activity as directed by the Cabinet Secretary;
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(z) |
collaborate with relevant training centres to ensure synergy in matters relating to energy;
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(aa) |
promote relevant energy research through cooperation with any entity, institution or person equipped with the relevant skills and expertise;
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(bb) |
make grants to educational and scientific institutions in aid of research in energy issues or for the establishment of facilities for such research;
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(cc) |
promote the training of research workers in the energy sector by granting bursaries or grants-in-aid for research;
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(dd) |
undertake the investigations or research that the Cabinet Secretary, after consultation with relevant institutions, may assign to it;
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(ee) |
advise the Cabinet Secretary on research in the field of energy technology;
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(ff) |
create awareness and disseminate information on the efficient use of energy and its conservation; and
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(gg) |
undertake any other functions as may be necessary for the execution of its mandate under this Act.
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57. |
Powers of the Agency
The Agency shall have all the powers necessary for the performance of its functions under this Act.
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58. |
Board of Directors of the Agency
The management of the Agency shall vest in the Board of Directors of the Agency which shall consist of—
(a) |
a Chairperson who shall be appointed by the President;
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(b) |
the Attorney-General or his representative;
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(c) |
the Principal Secretary or his representative in each of the Ministries for the time being responsible for—
(i) |
energy and petroleum; |
(ii) |
education, science and technology; and |
(iii) |
the National Treasury. |
|
(d) |
the Chief-Executive Officer; and
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(e) |
not more than four other members appointed by the Cabinet Secretary out of whom—
(i) |
one person shall be a registered engineer with experience of five years in nuclear energy; and |
(ii) |
one person from an institution of higher education. |
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|
59. |
Qualifications for appointment as a Chairperson and member of the Board
(1) |
A person shall be qualified for appointment under section 58 as a Chairperson if the person is a holder of a degree recognized in Kenya in the fields of engineering, physical sciences, law, finance, economics or energy.
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(2) |
In addition to the qualifications listed in subsection (1), for appointment as member of the Board, the person must—
(b) |
have had at least seven years' relevant professional experience;
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(c) |
be a member in good standing of the relevant professional association; and
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(d) |
meet the requirements of leadership and integrity set out in Chapter Six of the Constitution.
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(3) |
The Chairperson and members of the Board shall be appointed at different times so that the respective expiry dates of their terms of office shall fall at different times.
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60. |
Functions of the Board
The Board shall have all the powers necessary for the proper performance of its functions under this Act, and in particular, but without prejudice to the generality of the foregoing, the Board shall have power to—
(a) |
manage, supervise and administer the assets of the Agency in such a manner as best promotes the purpose for which it is established;
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(b) |
determine the provisions to be made for capital, recurrent expenditure and reserves of the Agency;
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(c) |
receive any grants, gifts, donations or endowments on behalf of the Agency and make legitimate disbursements there from;
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(d) |
open a banking account or bank accounts for the funds of the Agency;
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(e) |
approve the annual work plan including the short and long term programs of the Agency; and
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(f) |
any other function that enhances or adds value to the proper performance of the Agency.
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61. |
Chief Executive Officer
(1) |
The Board shall appoint a Chief Executive Officer of the Agency who shall, subject to the directions of the Board, be responsible for the day to day management of the Agency.
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(2) |
The appointment of the Chief Executive Officer under this section shall be through a competitive recruitment process.
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(3) |
A person shall be qualified for appointment as Chief Executive Officer if such person—
(b) |
holds a degree from a university recognized in Kenya or its equivalent in the fields of engineering, nuclear sciences, law, finance, economics or energy and related fields;
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(c) |
has at least seven years' relevant professional experience;
|
(d) |
is a member in good standing of the relevant professional association;
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(e) |
has at least seven years' management experience in a senior position; and
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(f) |
meets the requirements of leadership and integrity set out in Chapter Six of the Constitution.
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|
(4) |
The Chief Executive Officer shall hold office for a term of three years and shall be eligible for re-appointment for one further term of three years.
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(5) |
The Chief Executive Officer shall be an ex officio member of the Board but shall have no right to vote at any meetings of the Board.
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62. |
Conduct of business of the Agency
The conduct and regulation of the business of the Agency shall be as provided in the First Schedule, but subject thereto, the Agency shall regulate its own procedure and the procedure of any committee thereof.
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63. |
Terms of office, common seal, annual estimates and books of accounts
The terms of office, vacancy of office, removal from office of the members of the Board, the common seal, the financial year, annual estimates and books of accounts, records, audit and reports of the Agency shall be as provided in the Second Schedule.
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64. |
Committees
(1) |
The Board may establish such committees as it may consider appropriate.
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(2) |
The Board may from time to time co-opt into its membership one or more persons to assist it in any particular matter for the time being before the Board but such co-opted person shall have no voting rights.
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65. |
Delegation by Board
The Board may, by resolution either generally or in any particular case delegate to any committee of the Board or to any member, officer, employee or agent of the Board, the exercise of any of the powers or the performance of any of its functions or duties.
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66. |
Staff of the Agency
The Agency may, in consultation with the Public Service Commission, appoint such staff as it may require for the proper discharge of its the functions.
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67. |
Remuneration
The Chairperson, members, and staff of the Agency shall be paid such remuneration, fees or allowances as the Cabinet Secretary on the recommendation of the Salaries and Remuneration Commission may determine.
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68. |
Protection from personal liability
Nothing done by a member of the Board or any officer, employee or agent of the Agency shall, if it is done bona fide for executing the functions, powers or duties of the Agency, render the member, officer, employee or agent or any person acting on the directions of the Agency personally liable to any action, claim or demand whatsoever.
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69. |
Liability of the Agency for damages
This Act shall not relieve the Agency of the liability to pay compensation or damages to any person for an injury to that person, that persons' property or any of the persons' interests caused by the exercise of the powers conferred on the Board by this Act or by any other written law or by the failure, whether wholly or partially, of any works.
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70. |
Funds of the Agency
The funds of the Agency shall comprise—
(a) |
such sums as may be appropriated by Parliament for the purposes of the Agency;
|
(b) |
funds from the Consolidated Energy Fund established under section 216;
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(c) |
interests from bank deposits;
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(d) |
donations, grants, fees or contributions which the Agency may receive from any person, body, government or administration; and
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(e) |
such monies as may accrue to or vest in the Agency in the course of the exercise of its powers or the performance of its functions under this part or under any other written law.
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|
71. |
Investments of funds
(1) |
The Agency may from time to time, with the approval of the Cabinet Secretary and concurrence of the National Treasury, invest any of its funds in any securities in trust funds authorized by law.
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(2) |
The Agency may, subject to approval of the Cabinet Secretary and concurrence of the National Treasury, place on deposit with such bank or banks as it may determine, any monies not immediately required for any of its purposes.
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|
72. |
Discoveries, inventions and improvements
(1) |
Subject to subsections (5) and (6), the rights in all discoveries and inventions and in all improvements in respect of processes, apparatus and machines made by—
(a) |
employees of the Agency or officers and employees in the public service who have been seconded to the Agency;
|
(b) |
persons assisting the Agency with any investigation or research; or
|
(c) |
persons to whom contracts, including bursaries or grants-in-aid, have been granted by the Agency,
|
shall vest in the Agency.
|
(2) |
The Agency may make the discoveries, inventions and improvements referred to in subsection (1) available for use in the public interest subject to the conditions and the payment of fees or royalties that the Agency may determine.
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(3) |
In respect of the rights in any discovery, invention or improvement that are contemplated in subsection (1), the Agency may award to the person responsible for the discovery, invention or improvement such bonus as it may consider necessary, or make provision for financial participation by him or her in the profit derived from such discovery, invention or improvement to such extent as the Cabinet Secretary may determine in consultation with the Cabinet Secretary of the National Treasury.
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(4) |
The Agency may apply for a patent in respect of any discovery, invention or improvement contemplated in subsection (1), and shall for the purposes of the Industrial Property Act (Cap. 509) be regarded as the assignee of the discoverer or inventor in question.
|
(5) |
Unless it is otherwise agreed, the rights in a discovery, invention or improvement made by the Agency in the course of an investigation for or on behalf of another person, Government or administration shall vest with the Agency.
|
(6) |
The provisions of this section shall not apply in respect of a discovery or an invention or improvement referred to in subsection (1) which, in the opinion of the Board, was made by the person concerned other than—
(a) |
in the course of the performance of his or her duties as an employee of the Agency;
|
(b) |
during the performance of functions in respect of which he or she has been seconded to the Agency;
|
(c) |
in the course of any investigation or research while assisting the Agency; or
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(d) |
in the course of any research in respect of which he or she receives a bursary or grant-in-aid from the Agency, which is not connected with such employment, functions, investigation or research.
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PART IV – RENEWABLE ENERGY
73. |
Vesting of renewable energy resources
All unexploited renewable energy resources under or in any land vests in the National Government subject to any rights which, by or under any written law, have been or are granted or recognized as being vested in any other person.
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74. |
Preparation of resource maps and renewable energy resources inventory
(1) |
The Cabinet Secretary shall, within twelve months of coming into force of this Act, commence a countrywide survey and a resource assessment of all renewable energy resources.
|
(2) |
The Cabinet Secretary shall prepare a renewable energy resources inventory and resource map in respect of each renewable energy resource area and thereafter prepare updates biennially which shall be published in the Gazette.
|
(3) |
In preparing the renewable energy resources inventory and resource map under subsection (2), the Cabinet Secretary shall have regard to relevant data, information, maps, documents or reports.
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|
75. |
Promotion of renewable energy
(1) |
The Cabinet Secretary shall promote the development and use of renewable energy technologies, including but not limited to biomass, biodiesel, bioethanol, charcoal, fuelwood, solar, wind, tidal waves, hydropower, biogas and municipal waste.
|
(2) |
The Cabinet Secretary may in conjunction with relevant agencies perform such functions and exercise such powers as may be necessary under this Act to promote the development and use of renewable energy, including but not limited to—
(a) |
formulating a national strategy for coordinating research in renewable energy;
|
(b) |
providing an enabling framework for the efficient and sustainable production, distribution and marketing of biomass, solar, wind, small hydros, municipal waste, geothermal and charcoal;
|
(c) |
promoting the use of fast maturing trees for energy production including biofuels and the establishment of commercial woodlots including peri-urban plantations;
|
(d) |
promoting the use of municipal waste for energy production;
|
(e) |
promoting the development of appropriate local capacity for the manufacture, installation, maintenance and operation of basic renewable technologies such as bio-digesters, solar systems and turbines;
|
(f) |
promoting international co-operation on programmes focusing on renewable energy sources;
|
(g) |
harnessing opportunities offered under clean development mechanism and other mechanisms including, but not limited to, carbon credit trading to promote the development and exploitation of renewable energy sources;
|
(h) |
promoting the utilization of renewable energy sources for either power generation or transportation;
|
(i) |
promoting co-generation of electric power by sugar millers and sale of such electric power through the National Grid directly to the consumers; and
|
(j) |
promoting the production and use of gasohol and biodiesel.
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|
|
76. |
Establishment of Renewable Energy Resource Advisory Committee
(1) |
There is established an inter-ministerial Committee known as the Renewable Energy Resource Advisory Committee.
|
(2) |
The Renewable Energy Resource Advisory Committee is composed of—
(a) |
principal secretary in the Ministry of Energy or his or her representative who shall be the Chairperson;
|
(b) |
chief executive officer of the Corporation or his representative, who shall be the Secretary;
|
(c) |
managing director of the Geothermal Development Company Limited or his or her representative;
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(d) |
managing director of the Kenya Electricity Generating Company Limited or his or her representative;
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(e) |
Attorney-General or his or her representative;
|
(f) |
principal secretary of the National Treasury or his or her representative; and
|
(g) |
principal secretary responsible for matters relating to natural resources or his or her representative.
|
|
(3) |
The Renewable Energy Resource Advisory Committee may co-opt such other members as it may deem necessary but in any case not more than four members shall be co-opted.
|
(4) |
The Renewable Energy Resource Advisory Committee shall advise the Cabinet Secretary on—
(a) |
criteria for allocation of renewable energy resource;
|
(b) |
licensing of renewable energy resource areas;
|
(c) |
management of water towers and catchment areas;
|
(d) |
development of multi-purpose projects such as dams and reservoirs for power generation, portable water, flood control and irrigation with a view to ensuring proper coordination at policy, regulatory, conservation and operational levels on matters relating to the various uses of water resources; and
|
(e) |
management and development of renewable energy resources.
|
|
(5) |
The Renewable Energy Resource Advisory Committee may upon request advise the County Governments on matters relating to renewable energy resources.
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|
77. |
Geothermal resources vested in the National Government
All unextracted geothermal resources under or in any land shall vest in the National Government.
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78. |
Unauthorized use of geothermal resources prohibited
Notwithstanding anything to the contrary in any written law or instrument of title, no person shall sink a well, tap, take, use or apply geothermal resources for any industrial or commercial purpose unless he is granted authority or licence under this Act.
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79. |
Cabinet Secretary to authorize search of geothermal resources
(1) |
The Cabinet Secretary may authorize any person in writing, to make surveys, investigations, tests and measurements in search of geothermal resources and for that purpose the authorized person may—
(a) |
enter upon any land specified in the authority with such other persons, gear, appliances, and equipment as he or she deems fit;
|
(b) |
sink any well on the land;
|
(c) |
make geological surveys and geophysical surveys on the land; and
|
(d) |
generally do all things necessary in connection with the survey, investigation, test or measurement.
|
|
(2) |
A person granted authority under this section, shall comply with the provisions of Part VIII of this Act.
|
(3) |
Every authority granted under this section shall be subject to—
(a) |
the condition that every well made pursuant to the authority shall be—
(i) |
kept under close supervision; and |
(ii) |
maintained or abandoned in a safe condition; |
|
(b) |
such other conditions as the Cabinet Secretary may impose either at the time of granting the authority or subsequently at the time of closure of the well.
|
|
(4) |
An authority granted under this section shall not be transferable, and shall be in force for a period of two years from the date of issue, but may be renewed for a period of one year from the date of expiration thereof or from the expiration of any renewal.
|
(5) |
An authority granted under this section may be revoked by the Cabinet Secretary on the grounds that—
(a) |
the person to whom the authority is granted has not complied with any requirement or condition of the Cabinet Secretary's authority;
|
(b) |
operations being carried on under the authority are, in the opinion of the Cabinet Secretary, detrimentally affecting other specified wells or the supplies of geothermal resources;
|
(c) |
the authorized person has not commenced a search of geothermal resources for a continuous period of five years; and
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(d) |
it is in the public interest that operations being carried on under the authority should cease.
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|
|
80. |
Cabinet Secretary may grant a geothermal resources licence
(1) |
The Cabinet Secretary may, on receiving an application for the extraction of geothermal resources in respect of any land, and in consultation with the Renewable Energy Resource Advisory Committee grant a licence over part or the whole of a geothermal resources area under such terms and conditions as the Cabinet Secretary may determine in accordance with Article 71 of the Constitution.
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(2) |
An application for a licence to be issued under this section shall be in the approved form and be accompanied by the prescribed fees.
|
(3) |
The Cabinet Secretary in granting a licence under this section shall do so in an open, competitive and transparent manner.
|
(4) |
A licence may be granted under this section for such term, not exceeding thirty years, as the Cabinet Secretary may determine and shall be in the prescribed form.
|
(5) |
Where the Cabinet Secretary, rejects the application for a licence under this section, the Cabinet Secretary shall provide the applicant with the reasons for such refusal within fourteen days.
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(6) |
Any decision made under this section shall be upon the advice of the Renewable Energy Resource Advisory Committee.
|
(7) |
An applicant who is dissatisfied with the decision of the Cabinet Secretary, under this section may appeal to the Tribunal within thirty days of receipt of the decision.
|
(8) |
An applicant aggrieved by a decision of the Tribunal under subsection (7) may appeal to the High Court against the decision of the Tribunal.
|
(9) |
Within one hundred and twenty days after an applicant files an appeal under subsection (8), the High Court shall hear and determine the appeal.
|
(10) |
If the High Court fails to hear and determine the appeal within the period referred to under subsection (9), the decision of the Tribunal shall be final.
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|
81. |
Rights under licence
(1) |
Without prejudice to Part VIII, a licence issued under section 80 shall, subject to this Act and other relevant laws, confer upon the licensee the right—
(a) |
to enter upon the land being the subject of the licence to sink a well and to extract geothermal resources and to do all such things as are reasonably necessary for the conduct of those operations;
|
(b) |
in so far as it may be necessary for and in connection with the operations referred to in paragraph (a) to—
(i) |
drill and construct all necessary wells; |
(ii) |
erect, construct and maintain houses and buildings for his own use and for use by his employees; |
(iii) |
erect, construct and maintain plant, machinery, buildings and other erections as may be necessary; |
(iv) |
utilize the geothermal resources; |
(v) |
subject to the law governing water resources, to reclaim and utilize any water; and |
(vi) |
construct and maintain roads and other means of communication and conveniences; |
|
(c) |
to take and use or apply the geothermal resources for any purpose specified in the licence.
|
|
(2) |
Where any by-product obtained in the production of geothermal resources may be reclaimed for further use or sale and is a mineral within the meaning of the law governing mining, the licensee shall exploit the same after obtaining a licence under the law relating to mining.
|
(3) |
Where any other natural resource is discovered in the course of exploration and production of geothermal resources, the licensee shall inform the Cabinet Secretary within seven days of such discovery.
|
|
82. |
Renewal and surrender of licence, etc
The Cabinet Secretary may, on the advice of the Authority—
(a) |
renew a licence for a term not exceeding five years after the initial expiry or any renewal thereof subject to such terms and conditions as the Cabinet Secretary may consider necessary;
|
(b) |
wholly or partly remit all or any of the terms and conditions contained in any licence where, owing to special circumstances, in his opinion, compliance therewith would be impossible or great hardship would be inflicted upon the licensee;
|
(c) |
extend time to the licensee for complying with the terms and conditions of any licence upon such terms and conditions as the Cabinet Secretary may consider necessary; or
|
(d) |
accept, whether with a view to renewing or re issuing any licence or otherwise the surrender of any licence or any part of the area comprised therein upon such terms and conditions as the Cabinet Secretary may consider necessary, but no such surrender shall affect any liability incurred by the licensee before the surrender shall have taken effect.
|
|
83. |
Transfer of geothermal licence
The licensee shall not transfer or assign the licence or any part thereof without the consent in writing of the Cabinet Secretary signified by endorsement thereon.
|
84. |
Forfeiture of licence
(1) |
The Cabinet Secretary may declare a licence to be forfeited—
(a) |
if the licensee ceases work in or under the land the subject of the licence during a continuous period of six months, without the written consent of the Cabinet Secretary;
|
(b) |
if the licensee commits a breach or is in default of any provision of this Act or of the regulations made thereunder or of any terms or conditions of the licence and the Cabinet Secretary has caused a notice to be served upon the licensee requiring him to—
(i) |
in the case of a breach which, in the opinion of the Cabinet Secretary, is capable of being repaired or made good, to repair or make good the breach within a specified period; or |
(ii) |
in the case of a breach which, in the opinion of the Cabinet Secretary, is not capable of being repaired or made good, to show cause within a specified period why the licence should not be forfeited. |
|
|
(2) |
The forfeiture of a licence under subsection (1) shall not affect any liability already incurred by the licensee.
|
(3) |
The forfeiture of a licence under subsection (1) shall be published in the Gazette.
|
|
85. |
Royalty
(1) |
The licensee shall pay a royalty on the value at the wellhead of the geothermal resources extracted—
(a) |
of not less than one per centum and not more that two and half per centum of the value of geothermal energy produced from such resources during the first ten years of production under the licence;
|
(b) |
of not less than two per centum and not more than five per centum of the value of the geothermal energy produced from such resources during each year after such ten year period; but
|
(c) |
shall not include any geothermal energy that is dissipated before it reaches the point of delivery to the purchaser.
|
|
(2) |
For purposes of this section the value of geothermal energy at the well head is a value calculated by subtracting from the price that could reasonably be realized on sale of the energy to a genuine purchaser at arm's length from the producer, all reasonable expenses, reasonably incurred by the producer in getting the energy to the point of delivery to the purchaser.
|
(3) |
Any royalty received by the National Government from geothermal energy produced under this section shall be paid into the Treasury of the National Government and apportioned between the National Government, County Government and the local community as follows—
(a) |
the county government's share shall be equivalent to twenty percent of the royalties:
Provided that the amount allocated in accordance to this subsection shall not exceed the amount allocated to the County Government by Parliament in the financial year under consideration.
|
(b) |
the local community's share shall be equivalent to five percent of the royalties and shall be payable through a trust fund managed by a board of trustees established by the local community in accordance with regulations under this Act:
Provided that the amount allocated above shall not exceed one quarter of the amount due to the County Government by Parliament in the financial year under consideration.
|
(c) |
the remaining seventy five per centum shall be treated as National revenue to be dealt with in accordance with Article 203 of the Constitution.
|
|
(4) |
Notwithstanding subsection (3), where the resource is being exploited in one or more counties the Cabinet Secretary shall, in consultation with the Commission for Revenue Allocation, determine the rate of apportionment of the county share between the counties.
|
(5) |
The Cabinet Secretary may waive, suspend, or reduce the royalty for any licensee in the interest of encouraging the greatest utilization of geothermal resources, if the Cabinet Secretary determines that this is necessary to promote development or that the licence cannot be successfully operated under the licence terms.
|
(6) |
The Cabinet Secretary shall publish any waiver granted under this section.
|
|
86. |
Licensee to re-enter under certain conditions
(1) |
Any licensee whose licence has expired or has been surrendered or forfeited may, within ninety days of the date of the expiry, surrender or forfeiture, apply to the Cabinet Secretary to enter the land which was comprised in the licence to remove the plant, machinery, engines or tools installed or erected on the land.
|
(2) |
The Cabinet Secretary may require the licensee to remove the plant, machinery, engines or tools within a reasonable time, and if the plant, machinery, engines or tools are not removed within a reasonable time they may be sold by auction at the cost of the licensee.
|
(3) |
The net proceeds of the sale conducted pursuant to subsection (2) shall be held until applied for by the licensee but may be used in the repair of breaches or faults not made good by the licensee and for the payment of the costs incurred in conducting the sale.
|
|
87. |
Safety of persons
A licensee shall be liable for any loss, damage or injury to any person or property resulting from the licensee's works or operations, whether as a result of negligence or otherwise.
|
88. |
Cabinet Secretary may require well to be closed
(1) |
Notwithstanding any other provisions of this Act, the Cabinet Secretary may, at any time, order a well to be closed after giving notice to any person in accordance with subsection (2) on any of the following grounds—
(a) |
that the well is a source of danger to persons or property in the vicinity;
|
(b) |
that the well is, in the opinion of the Cabinet Secretary, affecting detrimentally other specified wells or the supplies of geothermal resources for other specified purposes;
|
(c) |
that the well is a nuisance in law or that it is otherwise in the public interest that the well should be closed;
|
(d) |
that the well is no longer necessary for operation in accordance with plans approved by him;
|
(e) |
for the protection of the environment including ground water against contamination; or
|
(f) |
in the interest of conservation of the geothermal resources.
|
|
(2) |
Notice to close a well may be given under this section by the Cabinet Secretary to the licensee entitled to use or apply the geothermal resources from the well for any purpose and if there is no licence granted under this Act the notice may be given to—
(a) |
the person authorized by the Cabinet Secretary to sink the well;
|
(b) |
a person who made or assisted to sink the well without any authority; or
|
(c) |
the owner of the land if that owner permitted the well to be drilled without the authority of the Cabinet Secretary.
|
|
(3) |
The Government shall not pay any compensation resulting from the closure of any well but the Cabinet Secretary may consider the refund of part of the fees which may have been paid in respect of any authority or licence in relation to a well which the Cabinet Secretary has ordered to be closed under this section, except that no refund of any part of fees shall be made in respect of any well made without the authority of the Cabinet Secretary.
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|
89. |
Charges payable for extraction of geothermal resources for certain purposes
(1) |
The Cabinet Secretary shall upon recommendation of the Authority formulate regulations to determine the prescribed levies and rentals for the extraction of geothermal resources for industrial or commercial purposes.
|
(2) |
The Cabinet Secretary shall levy the prescribed fees, and rentals for the extraction of geothermal resources for industrial or commercial purposes in accordance with subsection (1).
|
|
90. |
Offences and penalties
(1) |
A person who intends to drill or drills any well, extracts, takes, uses or applies geothermal resources for commercial or industrial purposes in contravention of this Act commits an offence and shall, on conviction, be liable to a fine of not less than one million shillings and if the offence is of a continuing nature, to a further fine of not less than one hundred thousand shillings for every day or part of a day during which that offence continues.
|
(2) |
A person who removes, damages, destroys or otherwise interferes with any survey pegs or beacons placed on the ground in connection with any survey lawfully carried on under this Act commits an offence and shall on conviction, be liable to a fine not exceeding one million shillings and if the offence is of a continuing nature, to a further fine not exceeding one hundred thousand shillings for every day or part of a day up to a maximum of thirty days during which that offence continues, or to imprisonment for a term not exceeding twelve months or to both.
|
(3) |
A person who removes, damages, destroys or otherwise interferes with any valve or instrument being used in connection with any such survey or with any well, or any geothermal generation power plant or steam highways commits an offence and shall on conviction, be liable to a fine not exceeding one million shillings and if the offence is of a continuing nature, to a further fine not exceeding one hundred thousand shillings for every day or part of a day up to a maximum of thirty days during which that offence continues, or imprisonment for a term no exceeding twelve months or to both.
|
|
91. |
Establishment of a renewable energy feed-in-tariff system
There is established a renewable energy feed-in-tariff system with the objective of—
(a) |
catalysing the generation of electricity through renewable energy sources;
|
(b) |
encouraging local distributed generation thereby reducing demand on the network and technical losses associated with transmission and distribution of electricity over long distances;
|
(c) |
encouraging uptake of, and stimulate innovation in, renewable energy technology; and
|
(d) |
reducing greenhouse gas emissions by lessening reliance on non-renewable energy resources.
|
|
92. |
Regulations for the feed-in-tariff system
(1) |
The Cabinet Secretary may upon recommendation of the Authority, make regulations necessary for the administration and implementation of the feed-in-tariff system.
|
(2) |
Without limiting the generality of subsection (1) the regulations may include—
(a) |
the technical and operational requirements for connection to the grid;
|
(b) |
the duration of the feed-in-tariff approval;
|
(c) |
the priority of purchase by distribution licensees of electrical energy generated using renewable energy sources; and
|
(d) |
the tariff to be paid by distribution licensees to licensees under feed-in-tariff system.
|
|
(3) |
In carrying out its functions and obligations under this Part of the Act, the Authority shall give due consideration to—
(a) |
the objectives of the feed-in-tariff system;
|
(b) |
the energy policies of the Government;
|
(c) |
the need for sustainability and diversity in renewable energy resources; and
|
(d) |
the need for fair competition and transparency in the implementation of the feed-in-tariff system.
|
|
|
93. |
Regulations under this Part
(1) |
The Cabinet Secretary may upon recommendation of the Authority make regulations necessary for carrying out or giving effect to the provisions of this Part.
|
(2) |
Regulations may be made under this section for the following purposes—
(a) |
prescribing any forms that may be required for the purposes of this Act;
|
(b) |
prescribing conditions upon or subject to which authorities and licences may be applied for, granted or renewed;
|
(c) |
providing for the keeping of records and the furnishing of information and returns by persons authorized by or under this Act, and prescribing the nature of the records, information, and returns and the form, manner and time in which they shall be kept or furnished;
|
(d) |
prescribing matters in respect of which fees, rents and royalties are to be payable under this Act and the amount of fees and rents, and persons liable to pay them;
|
(e) |
authorizing the refund of fees, rents or remission, in such circumstances as the Cabinet Secretary deems fit, of any fees or rentals payable under this Act;
|
(f) |
prescribing the responsibilities of licensees and persons to whom authorities are granted by or under this Act, and the operations to be carried out under licences;
|
(g) |
prescribing the qualifications of persons in charge of the making and closing of wells, and in particular, of persons employed as well managers, and providing for the examination of any grant of certificates to qualified persons;
|
(h) |
preventing or abating nuisances in or near wells and industries using geothermal resources;
|
(i) |
prescribing safety precautions in the making and after the completion of construction of wells, and the treatment of the ground above any well and of water above and below the ground, and preventing waste or loss of geothermal resources;
|
(j) |
prescribing drilling machinery, materials, and casting to be used in making of wells and to be available to cope with any emergency in connection with any well, and prohibiting the use of other classes of materials thereof;
|
(k) |
prohibiting or regulating the drilling of wells near other wells;
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(l) |
regulating the cessation of drilling operations and the abandonment and closing of wells and prescribing precautions against loosening the earth in the vicinity of any well;
|
(m) |
providing for wells to be made with due diligence and by safe and satisfactory methods;
|
(n) |
generally regulating the drilling of wells;
|
(o) |
providing for the exemption of licensees and persons to whom authorities have been granted under this Act, either wholly or partially, and either absolutely or conditionally, from any of the requirements of their licences or authorities or of regulations made under this section;
|
(p) |
prescribing the value of geothermal energy at the well head;
|
(q) |
providing guidelines on direct uses of geothermal energy; and
|
(r) |
licensing and management of renewable energy sources including but not limited to wind, solar, hydro, biogas, biomas, cogeneration, municipal waste and tidal energy.
|
|
|
PART V – DOWNSTREAM COAL
94. |
Requirements of licence for coal business
(1) |
A licence or permit as the case may be, is required by a person who wishes to carry out the production of energy from coal.
|
(2) |
A person who wishes to undertake—
(a) |
electricity generation using coal must have a valid licence issued by the Authority;
|
(b) |
transportation of coal for energy production using a vehicle must have a valid permit in respect of that vehicle issued by the Authority.
|
|
(3) |
A person who contravenes this section commits an offence and shall on conviction, be liable to a fine of not less than—
(a) |
five hundred thousand shillings, or to imprisonment for a term of not less than three months, or to both such fine and imprisonment if the contravention relates to subsection (2)(a);
|
(b) |
fifty thousand shillings, or to imprisonment for a term of not less than three months, or to both such fine and imprisonment if the contravention relates to subsection (2)(b).
|
|
|
95. |
Granting of licences
(1) |
A person desirous of obtaining a licence or permit under this Act shall make an application to the Authority in the manner prescribed by this Act or the Authority.
|
(2) |
The Authority may, within thirty days—
(a) |
grant a licence or permit accordingly, either without conditions or subject to such conditions as the Authority may deem fit and shall be accompanied by the prescribed fee; or
|
(b) |
refuse to grant such licence or permit.
|
|
(3) |
(a) |
refuses to grant a licence or permit; or
|
(b) |
imposes conditions on a licence or permit, the Authority shall give to the applicant, the reasons in writing for the action.
|
|
(4) |
An application for a renewal of a licence or permit shall be made at least thirty days before the expiry date of the current licence or permit and must be accompanied by the prescribed fee.
|
(5) |
If the Authority is satisfied that the applicant continues to meet the requirements for the issue of the licence or permit, the Authority shall renew the licence or permit.
|
(6) |
If an application for the renewal of a licence or permit has been made before the expiry of the licence or permit but has not been dealt with by the Authority when the licence, permit or certificate is due to expire, the licence, permit or certificate continues in force until the application for renewal is dealt with and any renewal in such a case shall be taken to have commenced from the day when the licence or permit would have expired before the renewal.
|
(7) |
A person who contravenes subsection (5) shall be liable to a penalty equivalent to fifty per cent of the licence or permit fee.
|
|
96. |
Conditions for granting licences or permits
(1) |
The Authority shall, before issuing a licence or permit under section 95, take into account all relevant factors, including but not limited to—
(a) |
the relevant Government Policies;
|
(b) |
compliance with the environmental, health, safety, planning, maritime and any other relevant legislation or guidelines;
|
(c) |
the relevant Kenya Standard or in the absence of such standard, any other standard recommended by the Authority in consultation with the Kenya Bureau of Standards;
|
(d) |
the technical and financial capability of the applicant and methods of financing the proposed coal value addition facility and bulk coal storage facility; and
|
(e) |
any other matter which, in the opinion of the Authority, may be affected by the granting or the refusal of the permit being sought.
|
|
(2) |
A permit shall contain such terms and conditions as the Authority may consider necessary, including but not limited to the—
(b) |
person authorized to execute the works;
|
(c) |
area in which the works shall be executed; and
|
(d) |
conditions to be satisfied before any works authorized by the permit are used, which may include a requirement for the execution of further works.
|
|
(3) |
Where a permit contains conditions prescribed in subsection (2) (d), no person shall, before the conditions are satisfied, use any works the execution of which was authorised by the permit, except to the extent specified in a notice given by the Authority to the licensee specifying the extent to which the works may be used, notwithstanding that some of the conditions have not been satisfied and such permit may, at any time, be revoked by the Authority in a subsequent notice in the Gazette.
|
(4) |
A notice given by the Authority under subsection (3) shall be conclusive evidence for the purposes of this Act that those conditions have been satisfied.
|
(5) |
Where a permit referred to in subsection (3) is cancelled or otherwise ceases to be in force prior to the completion of the authorized works, the licensee shall, to the extent of partially executed works, be deemed to have satisfied the prescribed conditions.
|
|
97. |
Amendment of licence or permit
(1) |
Subject to the provisions of this Act, a person may make an application in the prescribed manner for amendment of the licence or permit, and the Authority may, upon payment of the prescribed fee, amend the licence or permit and endorse it accordingly.
|
(2) |
Where the Authority refuses to amend a licence or permit under subsection (1), the Authority shall give to the applicant reasons for the refusal in writing.
|
(3) |
A licence or permit amended under this section shall retain the existing expiry date.
|
|
98. |
Factors to be considered in reviewing an application
The Authority shall, in granting or rejecting an application for a licence or permit, take into consideration—
(a) |
the impact of the undertaking on the social, cultural or recreational life of the community;
|
(b) |
the need to protect the environment and to conserve the natural resources in accordance with the environmental, health, and maritime laws and international maritime treaties ratified by Kenya and other guidelines developed by the Authority;
|
(c) |
compliance with Occupational Safety and Health Act (Cap. 236A) or other safety and health standards recommended by the Authority in consultation with the relevant statutory body;
|
(d) |
compliance this Act and the relevant Kenyan Standard and in the absence of such standard, any international standard recommended by the Authority in consultation with the Kenya Bureau of Standards;
|
(e) |
land use or the location of the undertaking;
|
(f) |
economic and financial benefits to the country or area of supply of the undertaking;
|
(g) |
the cost of the undertaking and financing arrangements;
|
(h) |
the ability of the applicant to operate in a manner designed to protect the health and safety of users of the service for which the licence or permit is required and other members of the public who would be affected by the undertaking;
|
(i) |
the technical and financial capacity of the applicant to render the service for which the licence or permit is required; and
|
(j) |
any other matter that the Authority may consider likely to have a bearing on the undertaking.
|
|
99. |
Environment liability policy
An application for a licence must be accompanied with such environmental liability policy as shall be prescribed by the Cabinet Secretary.
|
100. |
Forms and conditions of a licence or permit
(1) |
Every licence or permit shall be in such form as the Authority may determine and shall, subject to subsection (2), contain such particulars or conditions where applicable—
(a) |
the duration of the licence or permit;
|
(b) |
the type coal or coal products;
|
(c) |
the market area segments; and
|
(d) |
any other matter connected with the carrying on of the undertaking.
|
|
(2) |
All licences or permits issued by the Authority shall include—
(a) |
a requirement that the licensee shall comply with all applicable environmental, health and safety laws;
|
(b) |
a stipulation that the licensee is subject to liability under tort and the contract laws; and
|
(c) |
a requirement that all necessary fees associated with the licence or permit shall be paid on a timely basis.
|
|
(3) |
A licence or permit issued under this Act may not be altered, revised or modified, except with the consent of the licensee.
|
|
101. |
Display of licences and permits
(1) |
Every licence or permit or a certified copy thereof, shall, except when lodged with the Authority for any of the purposes of this Act, be maintained and displayed within the premises of the licensee.
|
(2) |
A licensee who contravenes subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding one million shillings.
|
|
102. |
Revocation of licence or permit
(1) |
The Authority may suspend or revoke a licence or permit where—
(a) |
the undertaking or the execution of the works related thereto has not commenced at the expiry of the period specified in the licence or permit, or at the expiry of any extended period which the Authority may allow;
|
(b) |
it is satisfied that the licensee is either not operating in accordance with the terms and conditions of the licence, permit or the provisions of this Act; or
|
(c) |
the licensee is adjudged bankrupt.
|
|
(2) |
Unless otherwise specified in the licence or permit, the Authority may give a licensee fourteen days' notice to show cause why the licence or permit should not be revoked.
|
(3) |
A notice under subsection (2) shall—
(a) |
set out the relevant condition of the licence or permit or the requirement of the Act to which the breach relates;
|
(b) |
specify the acts, omissions or other facts which, in the opinion of the Authority or the licensing agent, constitute a contravention of the conditions of the licence or permit or requirements of the Act, and the reasons why the Authority is of the opinion that any of the circumstances mentioned under subsection (1) have occurred or arisen; and
|
(c) |
be served upon the licensee at the licensee's principal place of business and shall take effect from the date of service.
|
|
(4) |
The Authority shall determine the matter within thirty days from the expiry of the notice.
|
(5) |
A suspension or revocation of a licence or permit shall not indemnify the licensee against any penalties for which such person may have become liable under the Act.
|
|
103. |
Replacement of a licence or permit
Where, upon application, it is shown to the satisfaction of the Authority that a licence or permit has been lost, destroyed or defaced, the Authority shall, upon payment of the prescribed fee, issue a duplicate licence or permit to the licensee.
|
104. |
Transfer of a licence or permit
(1) |
A licensee shall not transfer or otherwise divest any rights, powers or obligations conferred or imposed upon the licensee by the licence or permit without the consent of the Authority.
|
(2) |
The Authority may, on application by any of the following persons, transfer a licence or permit—
(a) |
in the case of a death of the licensee, to the legal representative;
|
(b) |
in the case of the bankruptcy of the licensee or assignment for the benefit of the licensee's creditors generally, to the lawfully appointed trustee or assignee;
|
(c) |
in the case of a corporation in liquidation, to the lawfully appointed liquidator;
|
(d) |
in any case where the licensee becomes subject to a legal disability, to any person lawfully appointed to administer the licensees' affairs; or
|
(e) |
in the case of voluntary transfer of the undertaking, to the new owner of the undertaking.
|
|
(3) |
The Authority shall satisfy itself of the legal, technical and financial competence of the transferee to carry out the undertaking.
|
(4) |
The transferee shall undertake in writing to comply with the conditions of the licence or permit.
|
(5) |
The Authority shall not withhold any consent to any application to transfer unless it has reason to believe that public interest is likely to be prejudiced by the transfer.
|
|
105. |
Register of licences and permits
(1) |
The Authority shall keep a register, in such form as it may determine, of all licenses and permits granted and shall record therein, in respect of each licence or permit—
(a) |
the particulars required under sections 96 and 100;
|
(b) |
particulars of any duplicate issued or any amendment of the licence or permit made under sections 97 and 103;
|
(c) |
particulars of any suspension or revocation of the licence or permit under section 102 and 108; and
|
(d) |
such other particulars as may be prescribed.
|
|
(2) |
Subject to subsection (3), any person may, during official working hours, and upon payment of the prescribed fee, inspect the register of licences and permits.
|
(3) |
Notwithstanding the provisions of subsection (2), a person who is—
(a) |
a member of the National Police Service or a public officer acting in the course of his duty; or
|
(b) |
an employee of the Authority or person authorised in writing by the Authority,
|
may inspect the register without payment of any fee.
|
|
106. |
Appeal against action of the Authority
A person aggrieved by the action of the Authority in—
(a) |
refusing to renew or grant a licence or permit or revoking a licence or permit; or
|
(b) |
imposing conditions on a licence or permit; or
|
(c) |
refusing to replace or amend a licence or permit,
|
may, within thirty days of receipt of written notification, appeal to the Tribunal.
|
107. |
Construction permits
(1) |
A person who intends to construct a facility that produces energy using coal shall, before commencing such construction, apply in writing to the Authority for a permit to do so.
|
(2) |
An application under subsection (1) shall—
(a) |
specify the name and address of the proposed owner;
|
(b) |
be accompanied by the registration documents of the proposed beneficial owner;
|
(c) |
be accompanied by a copy of detailed layout plans and specifications prepared by a professional engineer;
|
(d) |
be accompanied by a Strategic Environment Assessment and Social Impact Assessment licenses; and
|
(e) |
contain such other details as may be necessary.
|
|
(3) |
The Authority shall consider every application received under this section and shall, if satisfied that the applicant meets the prescribed requirements, grant to the applicant, within forty five days, the permit to construct the facility.
|
(4) |
A permit shall be subject to such conditions as maybe prescribed.
|
(5) |
Where the Authority refuses to grant a permit under this section, it shall notify the applicant of such refusal specifying the reasons thereof and shall deliver such notice to the applicant.
|
|
108. |
Suspension or revocation of a construction permit
(1) |
Subject to subsection (2), the Authority may, by notice in the Gazette, suspend or revoke a construction permit if any term or condition thereof has not been complied with within the prescribed period.
|
(2) |
Where the Authority intends to revoke or suspend a permit under this section, it may, at least twenty-one days before the date of the intended revocation or suspension, notify the holder of the permit of such intention, specifying the reasons thereof, and shall take every precaution to ensure fairness in the exercise of this power.
|
(3) |
The Authority may in writing, reinstate a permit revoked or suspended under subsection (1) if satisfied that the reasons for the revocation or suspension no longer exist.
|
|
109. |
Validity of permits
If, after a permit to construct a facility that produces energy using coal has been granted, the execution of the works has not commenced at the expiry of twelve months from the date on which the permit was granted, or at the expiration of any extended period which the Authority may allow, the permit shall cease to have effect.
|
110. |
Destruction of illegal construction
(1) |
Where a facility that produces energy using coal is constructed without a permit, the Authority may give the owner or occupier of such facility twenty one days' notice in writing to either obtain the requisite permits and if such permit is not obtained within the said period, stop the construction and immediately decommission the works.
|
(2) |
If the owner or occupier of the facility in sub section (1) fails to remove the works, the Authority shall decommission the works at the cost of that person.
|
(3) |
Notwithstanding subsection (1), any person who constructs a coal value addition facility and a bulk coal storage facility without a permit is liable on conviction to a fine of not less than one million shillings.
|
|
111. |
Contracts for common user facilities
(1) |
A person licensed to operate a common user facility shall provide non-discriminatory open access to its facility for use by any licensee or person on payment of fair and reasonable charges as shall be prescribed in regulations made under this Act.
|
(2) |
Where any licensee wilfully delays to comply with the terms of the contract pursuant to subsection (1), the Authority may compel the licensee to evacuate the coal products when appropriate and in the event of the licensee failing to comply with such direction the Authority may order disposal of such products held by a common user logistic facility and impose such penalties and fines as may be prescribed in regulations.
|
|
112. |
Forms of contract for common user facilities
(1) |
Every person licensed to operate a common user facility shall use a form of contract approved by the Authority which shall set out the rights and responsibilities of the licensee and users of the facility, as the case may be.
|
(2) |
In approving a form of contract under subsection (1), the Authority shall satisfy itself that such form of contract has fair and reasonable provisions dealing with issues, including but not limited to—
(a) |
limitation of liability of the licensee;
|
(b) |
termination and suspension provisions; and
|
(c) |
complaint handling and dispute resolution.
|
|
|
113. |
Cabinet Secretary to provide undertaking for strategic stocks of coal for electricity generation
The Cabinet Secretary may undertake in whole or in part, the provision of financing, procurement, storage, maintenance and management of strategic stocks of coal for electricity generation.
|
114. |
Compliance with environmental, health and safety laws
(1) |
A person engaged in production of energy utilising coal shall comply with the applicable environmental, health and safety laws.
|
(2) |
In the event of a fire, explosion, injury or fatality occurring in the course of operating a facility for energy production using coal, either by accident or through negligence, the operator of the facility shall forthwith clean up the polluted or damaged environment, at the operator's own expense, to the satisfaction of Authority.
|
(3) |
If the operator of the facility fails, or unreasonably delays, to carry out the clean-up work referred to in subsection (2), the Authority may cause any work not carried out to be executed at the expense of the said operator.
|
(4) |
Nothing contained in this section shall be construed as relieving the operator of the facility from any liability in respect of any loss or damage caused by his failure to comply with safety measures as required in subsection (5).
|
(5) |
A person transporting coal by road, rail, coastal or inland waters, or any other mode shall institute measures to ensure that their mode of transportation is safe.
|
(6) |
The Authority may, at any time, require the operator of a facility or a transporter to show that he is in compliance with the provisions of this section.
|
|
115. |
Offences and attempted offences
(1) |
(a) |
being the owner or operator of a facility that produces energy using coal or being a transporter of coal for energy production, fails to institute appropriate environmental, health or safety control measures;
|
(b) |
being the owner or operator of a facility that produces energy using coal or transporter of coal for energy production, contravenes the provisions of this Act or any regulations made thereunder relating to the construction or operation of a facility that produces energy using coal;
|
(c) |
maliciously misinforms the public leading to economic sabotage;
|
(d) |
illegally acquires any interest in public land set aside for development of facilities intended to produce energy using coal;
|
(e) |
being the owner of a facility that produces energy using coal, contravenes the provisions of this Act relating to the construction such facility;
|
(f) |
owns or operates an unlicensed facility that produces energy using coal; or
|
(g) |
constructs any facility defined in section 107 without obtaining a construction permit;
|
commits an offence and shall on conviction, be liable to a fine of not less than—
(i) |
two hundred thousand shillings or a term of imprisonment of not less than one year or to both such fine and imprisonment if the offence relates to paragraphs (a) or (b); or |
(ii) |
one million shillings or a term of imprisonment of not less than one (1) year or to both such fine and imprisonment, if the offence relates to paragraphs (c), (d), (e), (f) or (g). |
|
(2) |
A person who attempts to do any such thing as mentioned in subsection (1) commits an offence and shall on conviction, be liable to a fine of not less than—
(a) |
one hundred thousand shillings or a term of imprisonment of not less than six months or to both such fine and imprisonment if the offence relates to subsections (1)(a) or (b); and
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(b) |
one million shillings or a term of imprisonment of not less than three years or to both such fine and imprisonment if the offence relates to subsections (1)(c), (d), (e) (f) or (g).
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116. |
Regulation for use of coal for energy production
Without limiting the generality of section 208, the Cabinet Secretary may, on the recommendation of the Authority, make regulations for the use of coal for energy production relating to-
(a) |
importation, landing, loading, shipping, transportation and storage, of coal;
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(b) |
setting, reviewing and adjusting tariffs and charges for common user storage facilities of coal;
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(c) |
maintenance of minimum operational stocks and procedures thereof,
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(d) |
maintenance of strategic stocks and procedures thereof;
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(e) |
environmental, health and safety standards associated with the handling, storage and use of coal;
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(f) |
delivery to such officer as may be specified, samples of coal and for the testing of such samples;
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(g) |
type and location of the premises in respect of which licences to possess coal may be granted, the inspection of premises so licensed and the taking of samples and the testing of coal found thereon;
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(h) |
development and coordination of a national coal pollution response plan including measures to prevent coal pollution and a mechanism for compensation in the event of a coal pollution;
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(i) |
review and approval of contracts on third party access to common user midstream coal infrastructure on reasonable terms and conditions;
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(j) |
guidelines and standards to be applied to ensure uniform standards of operation in the sector;
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(k) |
joint procurement of coal;
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(l) |
generally for the better carrying out of the objects and purposes of this Act.
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PART VI – ELECTRICAL ENERGY
117. |
Requirement of a licence
A person who wishes to carry out the generation, exportation, importation, transmission, distribution and retail supply of electricity must apply for a licence as the case may be to the Authority in accordance with the provisions of this Act:
Provided that a person shall not require any authorization to generate electrical energy for own use of a capacity not exceeding one megawatt.
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118. |
Offence relating to carrying out unauthorized activity
A person who carries out any electricity undertaking without a licence commits an offence and shall, on conviction, be liable to a fine of not less than one million shillings or to a term of imprisonment not less than one year or to both such fine and imprisonment.
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119. |
Application for licence for electric power undertakings
(1) |
An application for a licence under section 117 including an application for amendment, transfer or renewal, shall be made to the Authority in the form and manner prescribed by regulations made under this Act.
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(2) |
The Authority may, through a fair, open and competitive process in accordance with procedures prescribed by the Cabinet Secretary by regulations, invite applications for a licence under section 117.
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(3) |
Before making any application for a licence, the person intending to make an application shall give fifteen days' notice, by public advertisement, in at least two newspapers of nationwide circulation.
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(4) |
Every notice under subsection (3) shall state that any person or body of persons desirous of making any representation on or objection to the application or to the grant of the licence shall do so by letter addressed to the Authority and marked on the outside of the cover enclosing it "Electric Power Licence Objection", on or before the expiration of thirty days from the date of the application as stated in the notice and that a copy of such representation or objection shall be forwarded to the applicant.
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(5) |
The Authority shall, within fifteen days after receipt of the application, inform the applicant in writing whether the application is complete.
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120. |
Hearing of objections to application for licence
The Authority may hear any objections in public, at a time and place of which not less than fifteen days' notice shall be given to the applicant and to every objector and the Authority shall make known its decision regarding any objection within thirty days after the hearing.
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121. |
Factors to be considered in an application
(1) |
The Authority shall, in granting or rejecting an application for a licence, take into consideration—
(a) |
the impact of the undertaking on the social, cultural or recreational life of the community;
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(b) |
the need to protect the environment and to conserve the natural resources in accordance with the Environmental Management and Co-ordination Act (Cap. 387);
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(c) |
land use or the location of the undertaking;
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(d) |
economic and financial benefits to the country or area of supply of the undertaking;
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(e) |
the economic and energy policies in place from time to time;
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(f) |
that the contractual rights, privileges, liabilities and obligations accrued to an existing licensee or any other person are not materially adversely affected;
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(g) |
the cost of the undertaking and financing arrangements;
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(h) |
the ability of the applicant to operate in a manner designed to protect the health and safety of its employees and users of the service for which the licence is required and other members of the public who would be affected by the undertaking;
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(i) |
the technical and financial capacity of the applicant to render the service for which the licence is required;
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(j) |
any representations or objections made under section 120;
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(k) |
the applicant's proposed tariff;
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(ka) |
the requirements under the National Electronic Single Window System; and
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(l) |
any other matter that the Authority may consider likely to have a bearing on the undertaking.
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(2) |
The Authority shall process all applications for a licence within sixty days after the Authority confirms to the applicant, in writing, that the application is complete.
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(3) |
The Authority shall, where it refuses to grant a licence, give the applicant a statement of its reasons for the refusal within seven days of the refusal.
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(4) |
An aggrieved party shall have right of appeal to the Tribunal within thirty days of the decision of the Authority.
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122. |
Forms and conditions of a licence
(1) |
Every licence shall be in such form as the Authority may determine and shall, subject to subsection (2), contain such particulars or conditions where applicable—
(a) |
provisions for bulk and retail tariffs or charges for electrical energy and capacity for different types of licensees and classes of consumers;
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(b) |
provisions for the determination of charges for use of the transmission and distribution network services;
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(d) |
the maximum capacity of supply of the undertaking;
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(e) |
the area of supply of the undertaking; and
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