Energy Act, 2006 (Cap. 314)

44.(1) Every person licensed to supply electrical energy 53 The Energy Act, 2006 for supply of shall use a form of contract approved by the Commission for electrical energy to consumers. such supply which shall set out the rights and responsibilities of the licensee and consumers. (2) In approving a form of contract under subsection (1), the Commission 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) disconnection procedures; (c) account and meter deposits; (d) consultation and notice of changes to any of the contract terms; (e) metering; and (f) complaint handling and dispute resolution. Tariffs and tariff

45.(1) The tariff structure and terms for the supply of structures and terms electrical energy shall be in accordance with principles of supply. prescribed by the Commission. (2) All tariffs charged for electrical energy supplied shall be just and reasonable. (3) Any application for the review of tariffs shall be filed with the Commission for approval not later than forty- five days before the proposed effective date: Provided that the Commission may, at its discretion, suspend a schedule of tariffs increase for up to five months. (4) An application under subsection (3) shall be in the 54 The Energy Act, 2006 form prescribed by the Commission. (5) A licensee may require a consumer to make such account deposit, commensurate with the consumer’s estimated electrical energy consumption, before electrical energy is supplied to him, which deposit may, from time to time, be revised by the licensee in order to take account of both the level of consumption and of any changes in electrical energy tariffs. (6) The charges for electrical energy to be supplied may, subject to agreement between the parties, be paid in advance. Permission to 46. (1) No person shall enter upon any land, other than survey and use land to lay electric his own– supply lines. (a) to lay or connect an electric supply line; or (b) to carry out a survey of the land for the purposes of paragraph (a), except with the prior permission of the owner of such land. (2) The permission sought in subsection (1) shall be done by way of notice which shall be accompanied by a statement of particulars of entry. Assent to proposal. 47.(1) An owner, after receipt of the notice and statement of particulars under section 46, may assent in writing to the construction of the electric supply line upon being paid such compensation as may be agreed and any assent so given shall be binding on all parties having an interest in the land, subject to the following provisions– (a) that any compensation to be paid by the licensee giving notice to the owner, in cases where the owner is under incapacity or has no power to assent to the application except under this Act, 55 The Energy Act, 2006 shall be paid to the legal representative of the owner; (b) that an occupier or person other than the owner interested in the land shall be entitled to compensation for any loss or damage he may sustain by the construction of the electric supply line, so long as the claim is made within three months after the construction of the electric supply line. (2) No assent expressed in writing in accordance with subsection (1) shall be void by reason only of non-compliance with any statutory requirements as to registration. Objection to

48.(1) An owner shall be deemed to have assented to a proposal. proposal to construct an electric supply line on his land if he fails to notify, in writing, the person desiring to construct an electric supply line, of his objection thereto within sixty days after the service on him of the notice required by section 46 and in the event of an objection, the Commission, on application by the licensee, shall determine– (a) what loss or damage, if any the proposed electric supply line will cause to the owner, or to the occupier or other person interested in the land; (b) whether any loss or damage that may be caused is capable of being fully compensated for by money. (2) The result of a determination under sub-section (1) shall be as follows– (a) if the Commission determines that loss or damage will be caused to the owner, occupier or other party interested in the land and that the loss 56 The Energy Act, 2006 or damage is– (i) of a nature that may be fully compensated for by money, the Commission shall proceed to assess the compensation and to apportion it amongst the owner, occupier and other parties who may in the judgement of the Commission be entitled to compensation and on payment of the sum so assessed the person giving notice may proceed to construct or lay the proposed electric supply line; (ii) not of a nature that may be fully compensated for by money the person giving notice shall not be entitled to construct or lay the proposed electric supply line; (b) if the Commission determines that no loss or damage will be caused to the owner, occupier or other party interested in the land the person giving notice may forthwith proceed to construct or lay the electric supply line. Procedure before 49.(1) Where an application is made under section 48, Commission. the Commission may summon the parties to appear before it at a time and place to be named in the summons and upon the appearance of the parties or in the absence of any of the parties, upon proof of due service of the summons, the Commission may hear and determine the question and amount of compensation and for that purpose may examine the parties and their witnesses on oath. (2) The costs of the inquiry pursuant to subsection (1) shall be determined by the Commission. Payment of 50.(1) If any difficulty or question arises as to the compensation by the 57 The Energy Act, 2006 Commission. person entitled to compensation payable under this Act, the Commission shall order compensation to be paid to the Commission pending the making of an application under sub- section (2). (2) Upon an application by a person making claim to any compensation paid to the Commission under subsection (1), the Commission may at the cost of the person making the application give notice to such persons as it deems fit in accordance with sections 46 and 48 and after such notice the Commission shall direct or order distribution and payment of the compensation according to the respective rights and interests of the persons making claim to such compensation or any part thereof, and may further make such other orders in the premises as it deems fit. Power of the 51.(1) After electric supply lines have been laid in licensee to enter land to inspect or accordance with this Act, the licensee or any person authorized repair lines. by the licensee may, from time to time as it becomes necessary, enter the land on which the electric supply lines are laid, with such assistance as may be necessary, for the purpose of inspecting or repairing the lines, or removing such lines in case where the electric supply lines are no longer required. (2) Where electric supply lines are removed, the surface of the land shall forthwith be restored to its former condition as far as possible and in default thereof restoration may be carried out by the owner of the land, and the costs thereof shall be recoverable from the licensee. Liability of licensee 52. The provisions of this Act shall not relieve a licensee to make compensation for of the liability to make compensation to the owner or occupier of damage. any land or the agents, workmen or servants of the owner or occupier of any land which is the subject of the provisions of this Act, for damage or loss caused by the exercise or use of any power or authority conferred by this Act or by any irregularity, trespass or other wrongful proceeding in the execution of this 58 The Energy Act, 2006 Act, or by the loss or damage or breaking of any electric supply line, or by reason of any defect in any electric supply line. Laying of electric 53.(1) For the purpose of the conveyance, transmission, supply lines along roads, railways, etc. or supply of electrical energy, a licensee may erect, fix, install or lay any poles, wires, electric supply lines, power or other apparatus in, upon, under, over or across any public streets, road, railways, tramways, rivers, canals, harbours or Government property, in the manner and on the conditions as provided in this Act. (2) Notwithstanding the provisions of any other written law, but subject to the provisions of this section, a licensee may break up any street within his area of supply, and may erect posts and lay or construct power lines or electric supply lines along, under or over any such street, and may, from time to time, repair, alter or remove any posts or lines so erected, laid or constructed: Provided that the person having the control of such street shall have a prior right to break up and repair such street with reasonable despatch upon payment to him of a reasonable charge by the licensee. (3) A licensee shall, not less than thirty days before exercising any power conferred upon him by this section, give notice in writing to the owner of his intention to do so, except in a case of emergency and in such case the licensee shall notify the owner as soon as possible after the emergency has arisen. (4) The powers conferred upon a licensee by this section shall, except in a case of emergency, be exercised only under the superintendence of the person concerned and according to a plan showing the route and in terms of specifications approved by that person, or, if any dispute arises in respect of such plan, route or specifications, as may be approved by the Commission: Provided that if the said person fails to exercise the 59 The Energy Act, 2006 powers of superintendence conferred by this section the licensee may, after giving notice, exercise those powers without such superintendence. (5) Whenever a licensee carries out any work authorized by this section, he shall comply with the by-laws, if any, of the local authority concerned and shall complete that work with reasonable despatch and reinstate the street broken up and remove any debris or rubbish occasioned thereby and shall, while the street is broken up or obstructed, cause the works to be, at all times, fenced and guarded and during the night, adequately lit. (6) If the licensee fails or unreasonably delays in carrying out the work referred to in subsection (5), the local authority concerned may cause the work to be executed at the expense of the said licensee. (7) A licensee shall pay to the said local authority the costs reasonably and necessarily incurred by it in executing such work. (8) Nothing in this section shall be construed as relieving a licensee of any liability in respect of any loss or damage caused by his negligence in carrying out such work or by his failure to comply with the provisions of this section. Compulsory 54.(1) Where a licensee requires the compulsory acquisition of land. acquisition of land for any of the purposes of a licence, the licensee may apply to the Minister to acquire the land on his behalf. (2) Where the Minister in consultation with the Commission is satisfied that it is in the public interest to do so, he may acquire the land in accordance with the relevant laws. (3) Where land is acquired on behalf of the licensee under subsection (2), the licensee shall bear all the costs in relation thereto. 60 The Energy Act, 2006 Power to lop trees 55.(1) Where any tree or hedge obstructs or interferes and hedges. with the construction by a licensee of any electric supply line, or interferes or is likely to interfere with the maintenance or working of any electric supply line, owned by any licensee, such licensee shall give a seven days notice to the owner or occupier of the land on which the tree or hedge is growing, requiring the person to lop or cut it so as to prevent the obstruction or interference of the electric supply line, subject to the payment by such licensee of the expenses reasonably incurred by the owner or occupier of the land in complying with the notice: Provided that in any case where such a notice is served upon an occupier who is not the owner of the land on which the tree or hedge is growing, a copy of the notice shall also be served upon the owner thereof, if his address is known. (2) If within twenty-one days from the date of giving such notice the owner or occupier of the land on which the tree or hedge is growing gives a counter-notice to the licensee objecting to the requirements of the notice, the matter shall, unless the counter-notice is withdrawn following consultations between the licensee and the owner or occupier, be referred to the Commission for determination and the Commission may, after giving the parties an opportunity to be heard, make such orders as it thinks just, and any such order may empower the licensee, after giving a seven day prior notice to any such person by whom the counter-notice was given of the commencement of the work as the order may direct, to cause the tree or hedge to be lopped or cut, and may determine any question as to what compensation, if any, and expenses are to paid: Provided that any party aggrieved by any decision of the Commission with regard to compensation may within thirty days after being notified of such decision appeal to the Tribunal. (3) The licensee shall issue instructions to his servants 61 The Energy Act, 2006 and agents with a view to ensuring that trees and hedges shall be lopped or cut in a way that little damage as possible is done to trees, fences, hedges and growing crops, and shall cause the boughs lopped to be removed in accordance with the directions of the owner or occupier, and shall make good any damage done to land. (4) Any compensation or expenses payable to the owner or occupier by the licensee under this section shall be a civil debt recoverable summarily. (5) Where it is necessary to fell any trees, this section shall apply to the felling of trees mutatis mutandis as it applies to the lopping of trees. (6) This section shall apply to electric supply lines owned or to be constructed by any licensee regardless of the type of license he holds. Electric supply 56. The licensee shall lay down or erect and keep in lines. good state of repair suitable and sufficient electric supply lines for the purpose of enabling supply to be given in the area of supply specified in that behalf in the licence. Supply of electrical 57. (1) A person requiring a supply of electrical energy energy to persons within area of shall apply to the licensee, specifying the premises in respect supply. of which the supply is required and the maximum power required to be supplied, and a reasonable date when the supply is required to commence. (2) Upon application by any person in the area of supply, the licensee shall, within the period specified in the licence or any regulations made under this Act, notify the persons by whom the application is made, of the terms and conditions, which may include payments of whatever nature, to be complied with by such persons before the supply is provided. (3) Notwithstanding any payments made in accordance 62 The Energy Act, 2006 with subsection (2)– (a) all electric supply lines shall be the property of the licensee and may be used to supply other persons provided that such use does not prejudicially affect the supply of electrical energy to the person who first required such electric supply lines to be laid down or erected; (b) such person shall be entitled to reimbursement by the licensee of a fair and just proportion of the cost originally paid by such person from payment made by each person subsequently connected to such electric supply lines provided that a claim for such reimbursement shall be made within six years; and (c) the licensee shall determine the fair and just proportion of the cost to be reimbursed in accordance with regulations made under this Act. (4) If any difference arises under this section as to the amount to be reimbursed by any person, that difference shall, upon the application of any person, be determined by the Commission. (5) A licensee shall keep at his office forms of requisition, embodying a suitable note drawing attention to the provisions of this section, and a copy shall, on application, be supplied free of charge to any person within the area of supply, and any requisition so supplied shall be deemed valid in point of form. Quantity of 58.(1) The amount of electrical energy supplied to the electrical energy supplied and consumer or the number of hours during which the supply is metering. given, or the maximum demand taken by the consumer, or any other quantity or time connected with the supply shall be 63 The Energy Act, 2006 ascertained by meters of a type approved by the Kenya Bureau of Standards, or determined in a manner agreed upon by the licensee and the consumer. (2) The licensee shall supply and fix meters, on hire, upon the premises of the consumer and connect the supply system therewith, and the consumer shall pay to the licensee for the hire of any such meter or meters, such costs as may be approved by the Commission: Provided that the licensee shall allow the consumer, if the consumer so wishes, to supply the meter or meters for the purpose of determining the quantity of the supply. (3) The meters, whether the property of the licensee or of the consumer, shall be sealed by the licensee with an approved seal bearing the licensee’s distinguishing brand or mark impressed thereon. (4) The licensee may, in order to protect any meter or meters or any other apparatus belonging to him, install suitable cut-outs on a consumer’s premises on the supply side of any such meter or other apparatus, and seal such cut-outs with an approved seal bearing the licensee’s distinguishing brand or mark impressed thereon. (5) Where any seal affixed under subsections (3) or (4) is broken without the authority of the licensee, the consumer upon whose premises the seal was placed commits an offence and shall, on conviction, be liable to a fine not exceeding one million shillings or to a maximum term of imprisonment of one year or to both: Provided that, where it can be proved that the offence was committed by some person other than the consumer, that person shall be punishable as if he were the consumer upon whose premises the breach occurred. 64 The Energy Act, 2006 (6) Where a consumer who is supplied with electrical energy by the licensee has provided a meter for the purpose of ascertaining the quantity of electrical energy supplied and the licensee changes the method of charging for electrical energy supplied by him, the licensee shall either pay to that person the reasonable expenses which he may have incurred in providing a new meter for the purpose of ascertaining the quantity of electrical energy supplied according to the new method of charging, or provide such consumer with a new meter. (7) A consumer shall be entitled to install in his premises a check meter or meters for the purpose of checking the quantity of electrical energy supplied to him but the registrations of such check meter shall not be taken into account in determining the quantity of electrical energy supplied to him and no such check meter shall be fixed and connected with the supply system except in such manner and subject to such conditions as the licensee may approve. (8) The licensee shall not connect or disconnect any meter to be used for ascertaining the quantity of electrical energy supplied, or a consumer’s check meter, or from any electric supply line through which electrical energy is supplied by the licensee, unless he has obtained the written consent of that person, or alternatively unless he has given to that person not less than forty eight hours’ written notice of his intention to do so. (9) The licensee shall not make any alteration, adjustment or readjustment in any meter being used for ascertaining the quantity of electrical energy supplied, as to affect the functioning of such meter unless the licensee has given to the consumer not less than forty eight hours’ written notice of the intention to do so or unless otherwise mutually arranged. (10) The consumer shall, at all times and at his own 65 The Energy Act, 2006 expense, keep all meters belonging to him and used for ascertaining the quantity of electrical energy supplied, in proper order for correctly registering that quantity, and, in default, the licensee may cease to supply electrical energy through the meter until the defect is rectified. (11) The licensee shall, at all times, at his own expense, keep all meters let for hire by him to any person, for ascertaining the quantity of electrical energy supplied, in proper order for correctly registering that quantity, and in default the said person shall not be liable to pay any charges for hire of the meter during such time as the default continues. (12) The licensee shall, subject to the provisions of section 51, for the purposes of this section, have access to, and be at liberty to remove, test, inspect and replace any meters installed by the consumer for the purpose of ascertaining the quantity of electrical energy supplied at all reasonable times. (13) A person who contravenes the provisions of this section commits an offence and shall, on conviction, be liable to fine not exceeding five hundred thousand shillings, or to a maximum term of imprisonment of one year, or to both. Defective meters. 59.(1) Where a meter used to register the quantity of electrical energy supplied by a licensee to any consumer is found to be defective through no fault of the licensee or the consumer, the licensee may, in consultation with the consumer, determine the reasonable quantity of electrical energy supplied and recalculate the charges due to or from the consumer as appropriate for up to a maximum period of six months from the date the meter is established to be defective: Provided that if the consumer had reported any suspected defect in the meter and the licensee did not immediately examine the meter, the licensee shall not be entitled to recover from the consumer any charges for more 66 The Energy Act, 2006 than three months from the date the meter was established to be defective. (2) Where any meter used to register the quantity of electrical energy supplied by any licensee to any consumer is found to be defective through interference by the consumer, the licensee may determine the reasonable quantity of electrical energy supplied and recalculate the charges due from consumer as appropriate from the date the licensee determines the meter to have been interfered with: Provided that if the subject meter is no longer suitable for ascertaining the quantity of electrical energy supplied, the licensee shall be entitled to repair or replace the meter at the cost of the consumer who interfered with it. (3) If any dispute arises under this section as to recalculation of electrical energy supplied to a consumer or as to interference with any meter, such dispute shall be referred to the Commission for determination. Electric supply 60. (1) Any electric supply lines, meters, fittings, works lines, meters and other apparatus are or apparatus belonging to a licensee and lawfully placed or not fixtures. installed in or upon any premises not belonging to the licensee, whether or not fixed to any part of such premises shall– (a) remain the property of and may be removed by the licensee; (b) not be subject to the landlord's distress for rent in such premises; and (c) not be liable to be taken in execution under any process of law or any proceedings in insolvency or liquidation against the owner or occupier of such premises: Provided that adequate indication is given on such 67 The Energy Act, 2006 premises that such licensee is the actual owner of such lines, meters, fittings, works or apparatus. (2) For the purposes of this section and of section 58, lines, meters, fittings and apparatus let, rented or disposed of by the licensee on terms of payment by instalments shall, until such instalments have been paid, be deemed to belong to the licensee. When supply of 61.(1) A licensee shall not, except for reasons beyond electrical energy may be refused or his control, reduce, discontinue or refuse the supply of discontinued. electrical energy to any consumer, unless– (a) the consumer has failed to pay charges for consumption of electrical energy, whether such charges are due to the licensee for the supply of electrical energy to premises in respect of which such supply is demanded or in respect of other premises: Provided that– (i) such charges have not been referred to the licensee by the consumer for resolution in accordance with the licensee’s complaint handling and dispute resolution procedures approved by the Commission; and (ii) the consumer has failed to pay the charges of energy consumption due to the licensee for the supply of electrical energy to the specific premises in respect of which supply is demanded and not in respect of any other premise; (b) the consumer fails or neglects to make good any defects in his installation: 68 The Energy Act, 2006 Provided that those defects and the period within which such defects are to be rectified, have been communicated to the consumer in writing; (c) the consumer uses or permits to be used such supply for any purpose or deals with or permits such supply to be dealt with in any manner so as to interfere unduly or improperly with the efficient supply of electrical energy by the licensee to any person, or endangers public safety; (d) the consumer contravenes the provisions of subsections (5) or (10) of section 58; (e) the consumer denies the licensee access to the electric supply lines or any meters on the premises under the control of the consumer; (f) the premises or part thereof is the subject of an order for demolition made at the instance of a public or local authority; or (g) the supply of electrical energy is prohibited by law to such premises or part thereof. (2) Where a person has given a licensee a deposit as security for payment for the supply of electrical energy, the licensee may, at any time, while any such charge or other sum remains unpaid and after giving that person not less than fourteen days notice in writing– (a) discontinue the supply of electrical energy to such person; or 69 The Energy Act, 2006 (b) apply the deposit for the electrical energy consumed and if any part of such charge or other sum remains unpaid thereafter, discontinue the supply of electrical energy to such person, until such charge or other sum together with any expenses incurred in disconnecting such supply and any lawful charges for or incidental to the reconnection thereof have been paid. (3) If any dispute arises as to– (a) any charges; or (b) the application of any deposit; or (c) any illegal or improper use of electrical energy; or (d) any alleged defects in any apparatus or protective devices; or (e) any unsuitable apparatus or protective devices; it shall be referred to the Commission. (4) Where any dispute referred to in subsection (3) has been referred to the Commission, or has otherwise been taken to court before a notice of disconnection has been given by the licensee, the licensee shall not exercise any of the powers conferred by this section until final determination of the dispute: Provided that the prohibition contained in this subsection shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the Commission, in addition and without prejudice to any other deposit the licensee is entitled to require, or the amount of the charge or other sum in dispute, and the consumer has failed to 70 The Energy Act, 2006 comply with the request within forty-eight hours of the request having been made. Power of the 62. Where, in the opinion of the Minister, a supply of Minister to provide electric lines or electrical energy should be obtained from any licensee or funds. permit holder and after investigation, it is considered uneconomical or commercially inexpedient to provide for the necessary works as specified in that behalf, the Minister, may with the approval of the National Assembly, undertake in whole or in part the provision of any such works or of the funds necessary to defray the charges thereon or may guarantee such payments, upon such terms and conditions as the Minister may consider necessary or expedient. Regulations for 63. (1) Without limiting the generality of sections 5 and electrical energy. 6 and in accordance with section 110, the Minister may, on the recommendation of the Commission, make such regulations as may be necessary or expedient for the achievement of the objectives and purposes of this Act and in particular, for all or any of the following purposes– (a) prescribing the form and manner in which any application for review or adjustment of tariffs is to be made and the procedure for the review or adjustments of tariffs; (b) providing the procedure for application and transfer of licences; (c) prescribing generally the duties and obligations of licensees, permit holders, undertakers and consumers; (d) prescribing the form and manner in which every licensee shall keep his accounts and records of income and expenditure for the purposes of this Act; 71 The Energy Act, 2006 (e) providing for the securing the safety of the public from danger, personal injury or damage to property arising from the production, transmission, transportation, transformation, distribution, supply or use of electricity; (f) providing for the reporting of accidents to the Commission which have resulted in the loss of life, personal injury or damage to property; (g) providing for the inspection of and enquiry into the operation of undertakings; (h) providing for the measurement of electrical energy and the settlement of disputes as to measurements of electrical energy; (i) providing for the conditions on which new electricity connections may be made to any premises; (j) prescribing the conditions on which electrical energy supplied to a person may be resold to another person; (k) prescribing standards with regard to the quality, safety and reliability of supply of electrical energy and related installations; and (l) prescribing the procedures for hearings, settlement of disputes and any proceedings before the Commission. Offences 72 The Energy Act, 2006 Unauthorised, 64. (1) A person who– fraudulent or improper supply or use of electrical (a) contravenes any of the conditions of a licence energy. granted to him under this Act; (b) without lawful right (the proof of which shall be upon him) abstracts, branches off or diverts or causes to be abstracted, branched off or diverted any electrical energy, or consumes or uses any such electrical energy which has been wrongfully or unlawfully abstracted, branched off or diverted, knowing it to have been wrongfully or unlawfully abstracted, branched off or diverted; or (c) lays, erects or installs, or permits to be laid, erected or installed, any conductor or apparatus and connects it, or permits it to be connected, with any electric supply line through which electrical energy is supplied by a licensee, without the consent of the licensee; or (d) disconnects, or permits to be disconnected, any conductor or apparatus from any electric supply line belonging to a licensee, without the consent of the licensee; or (e) makes or permits to be made any alteration in his permanent installation without the previous approval of the licensee; or (f) in any case where the quantity of the supply of electrical energy is not ascertained by meter, uses any apparatus or device other than what he has contracted to pay for or uses such apparatus or device at any other time than the time 73 The Energy Act, 2006 specified and for which he has contracted to pay; or (g) uses the electrical energy supplied to him for other purposes other than the purposes for which it is supplied for; or (h) supplies any other person with any part of the electrical energy supplied to him by the licensee or the permit holder, without the consent of the licensee or the permit holder, commits an offence and shall, on conviction, be liable to a fine not exceeding one million shillings, or to a maximum term of imprisonment of one year, or to both. (2) In any case where the person who commits an offence under subsection (1) is the consumer, the licensee may also discontinue the supply of electrical energy to the premises of such consumer or abstain from resuming such supply, if already discontinued, for such period as the Commission may direct, notwithstanding any contract which may have been previously entered into. (3) The existence of artificial or unlawful means for making– (a) connection or disconnection as is referred to in paragraphs (c), (d) and (f) of subsection (1), or (b) making such alteration as is referred to in paragraph (e) of subsection (1), or (c) facilitating such use or supply as referred to in paragraphs (g), and (h) of that subsection (1), shall, where the meter, indicator or apparatus is under the 74 The Energy Act, 2006 custody or control of the consumer, whether it is his property or not, be prima facie evidence that such connection or disconnection, alteration, improper use or supply, as the case may be, has been fraudulently, knowingly and wilfully caused or permitted by the consumer. (4) A person who wilfully– (a) extinguishes or causes to be extinguished, any public lamps, or (b) carelessly or accidentally breaks, throws down or damages any works of or under the control of a licensee, or (c) improperly uses any of the electrical energy supplied by a licensee, commits an offence and shall, on conviction, be liable to a fine not exceeding one million shillings, or to a maximum term of imprisonment of one year, or to both. Hindering, 65. A person hindering, obstructing or interfering with obstructing or interfering with the the exercise by a licensee with regard to an electric supply line, exercise of licensee or by the servants or agents duly authorised in writing of any powers. such licensee, of any right of entry upon land conferred by this Act for the purpose of laying and connecting, or repairing, inspecting or removing, an electric supply line commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand shillings for each day or part thereof that the obstruction occurs or continues. Rural Electrification Establishment of the 66.(1) There is established an Authority to be known as Rural Electrification Authority. the Rural Electrification Authority (hereinafter referred to as “the Authority”.) 75 The Energy Act, 2006 (2) The Authority shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of– (a) suing and being sued; (b) taking, purchasing or otherwise acquiring, holding, charging 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. Functions of the 67. The Authority shall– Authority. (a) manage the Rural Electrification Programme Fund established under section 79; (b) develop and update the rural electrification master plan; (c) implement and source additional funds for the rural electrification programme; (d) promote use of renewable energy sources including but not limited to small hydros, wind, solar, biomass, geothermal, hybrid systems and oil fired components taking into account specific needs of certain areas including the potential for using electricity for irrigation and in support of off-farm income generating activities; (e) manage the delineation, tendering and award of 76 The Energy Act, 2006 contracts for licences and permits for rural electrification; and (f) to perform such other functions as the Board may direct. Board of the 68.(1) There shall be a Board of Directors of the Authority. Authority which shall consist of– (a) a Chairperson appointed by the President; (b) the permanent Secretary in the Ministry for the time being responsible for energy or his representative; (c) the permanent Secretary in the Ministry for the time being responsible for finance or his representative; and (d) a minimum of four and a maximum of eight other members appointed by the Minister. (2) a member of the Board shall hold office– (a) in the case of the Chairperson, for a period of five years; (b) in the case of any other member, for a period of three years. (3) A member of the Board may be re-appointed for one further term. (4) A person shall be qualified for appointment as a Chairperson under subsection (1)(a) or member under subsection (1)(d) of the Board if such person– (a) is a holder of a university degree recognized in 77 The Energy Act, 2006 Kenya in the fields of engineering, physical sciences, law, finance, economics or energy; and (b) has at least fifteen years experience in the relevant field, five of which is at a senior management level. Conduct of business 69. The conduct and regulation of the business and and affairs of the Board. affairs of the Board shall be as provided in the Second Schedule. Chief Executive and 70. (1) The Minister may, on recommendation of the other staff of the Authority. Authority, appoint a Chief Executive of the Authority from a list of three names of persons submitted by the Board through competitive selection. (2) The person appointed under subsection (1) shall be the chief executive of the Authority and, subject to the directions of the Board, be responsible for the day-to-day management of the Authority. (3) The Authority may appoint such other officers and staff as may be necessary for the efficient discharge of its functions. Remuneration. 71. The Authority shall pay its members and staff such salaries and allowances as it shall determine in consultation with the Minister. The common seal. 72.(1) The common seal of the Authority shall be kept in such custody as the Board may direct and shall not be used except on the order of the Board. (2) The common seal of the Authority when affixed on a document and duly authenticated shall be judicially and officially noticed unless and until the contrary is proved any necessary order or authorization by the Board under this 78 The Energy Act, 2006 section shall be presumed to have been duly given. (3) The affixing of the common seal of the authority shall be authenticated by the signature of the chairperson and the Chief Executive Officer and any document not required by law to be made under seal and all decisions of the Board may be authenticated by the signature of the chairperson and the Chief Executive Officer: Provided that the Board shall, in the absence of either the chairperson or the Chief Executive Officer in any particular matter, nominate one member to authenticate the seal on behalf of the chairperson or the Chief Executive Officer. Protection from 73. No matter or thing done by a member of the Board personal liability. or any officer, employee or agent of the Authority shall, if the matter or thing is done bonafide for executing the functions, powers or duties of the Authority, render the member, officer, employee or agent, any other person acting on his directions personally liable to any action, claim or demand whatsoever. Liability of the 74. The provisions of section 73 shall not relieve the Board for damages. Authority of the liability to pay compensation or damages to any person for an injury to him, his property or any of his 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. Financial year. 75. The financial year of the Authority shall be the period of twelve months ending on the thirtieth June in each year. Annual estimates. 76. At least three months before the commencement of each financial year, the Board shall cause to be prepared estimates of the revenue and expenditure of the Authority for that year. 79 The Energy Act, 2006 Accounts and audit. 77.(1) The Board shall cause to be kept proper books and records of accounts of the income, expenditure and assets of the Authority. (2) Within a period of three months after the end of each financial year, the Board shall submit to the Controller and Auditor-General or to an auditor appointed under this section, the accounts of the Authority together with– (a) a statement of the income and expenditure of the Authority during that year; and (b) a detailed balance sheet of the Authority on the last day of that year. (3) The accounts of the Authority shall be audited and reported upon in accordance with the provisions of the Public No. 12 of 2003. Audit Act, 2003 by the Controller and Auditor-General or by an auditor appointed by the Board with the approval of the Controller and Auditor-General. Electricity sales 78. The Minister may impose a levy of up to five levy. percent on all electricity consumed in the country, the proceeds of which shall go into the Rural Electrification Programme Fund, set up under section 79. Rural Electrification 79. (1) The Minister shall establish a fund to be known Programme Fund. as the Rural Electrification Programme Fund to support the electrification of rural areas and other areas, considered economically unviable for electrification by licensees. (2) The Rural Electrification Programme Fund consists of– (a) the electricity sales levy as provided under section 78; (b) fees and other charges levied by the Commission 80 The Energy Act, 2006 under this Act; (c) such moneys as may be appropriated by Parliament for that purpose; (d) donations, grants and loans; and (e) all other moneys lawfully received or made available for the programme as the Minister may approve. (3) The Authority shall keep books and records of accounts and shall cause regular audits of such books and records to be undertaken. PART IV ? PETROLEUM Licensing Licence for 80.(1) A person shall not conduct a business of petroleum business. importation, refining, exportation, wholesale, retail, storage or transportation of petroleum, except under and in accordance with the terms and conditions of a valid licence. (2) A licensee shall not sell petroleum to a person for the purpose of exportation or for resale in Kenya unless that person has a valid exporters or retail licence under this Act. (3) A person shall not use a vehicle for the purpose of transporting petroleum unless there is in force, in respect of that vehicle, a valid petroleum permit issued under this Act. (4) No person shall drive a vehicle, or engage a driver, for the purpose of transporting petroleum unless such driver is certified for that purpose in accordance with this Act. (5) A person who contravenes this section commits an 81 The Energy Act, 2006 offence and shall, on conviction, be liable to a fine not exceeding one million shillings, or to a maximum term of imprisonment of one year, or to both. Licensing Agents. 81. The Commission may, in accordance with section 23 appoint competent and impartial persons to be licensing agents for the purpose of issuing licences under this Act. Granting of 82. (1) A person desirous of obtaining a licence under licences. this Act shall make an application to the Commission or licensing agent in the manner prescribed by the Commission, and the Commission or licensing agent may, within thirty days– (a) grant a licence accordingly, either without conditions or subject to such conditions as the commission may deem fit and shall be accompanied by the prescribed fee. (b) refuse to grant such licence. (2) Where the Commission or licensing agent– (a) refuses to grant a licence; or (b) imposes conditions on a licence, the Commission or licensing agent shall give to the applicant, the reasons in writing for the action. (3) A licence issued under this Act shall be valid for one year from the date of issue. (4) An application for a renewal of a licence shall be made at least thirty days before the expiry date of the current licence and must be accompanied by the prescribed fee. (5) If the Commission or the licensing agent is satisfied 82 The Energy Act, 2006 that the applicant continues to meet the requirements for the issue of the licence, the Commission or the licensing agent shall renew the licence. (6) If an application for the renewal of a licence has been made before the expiry of the licence but has not been dealt with by the Commission or the licensing agent when the licence is due to expire, the licence 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 would have expired before the renewal. (7) A person who contravenes subsection (4) shall be liable to a penalty equivalent to twenty per cent of the licence fee. (8) A licence shall specify the nature of petroleum business and the premises at which the licensee may conduct his business and where a petroleum business is conducted at more than one premise, a separate licence shall be required for each of such premises. Amendment of 83.(1) Subject to the provisions of this Act, a person licences. may make an application in the prescribed manner for amendment of the licence, and the Commission or the licensing agent may, upon payment of the prescribed fee, amend the licence and endorse it accordingly. (2) Where the Commission or the licensing agent refuses to amend a licence under subsection (1), the Commission or licensing agent shall give to the applicant, if the applicant so requests, the reasons in writing for the refusal. (3) A licence amended under this section shall retain the existing expiry date. Display of licences 84.(1) Every licence or permits shall, except when or permits. 83 The Energy Act, 2006 lodged with the Commission or licensing agent for any of the purposes of this Act, be displayed in a prominent position on the premises in respect of which it is issued. (2) A licensee or permit holder who contravenes the provision of sub-section (1), commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand shillings for each day or part thereof that the licence is not displayed. Revocation of 85.(1) The Commission or licensing agent may suspend licence. or revoke a licence where– (a) the undertaking or the execution of the works related thereto has not commenced at the expiry of twenty-four months from the date on which the licence or permit was granted, or at the expiry of any extended period which the Commission may allow; (b) it is satisfied that the licensee is either wilfully or negligently not operating in accordance with the terms and conditions of the licence, permit or the provisions of this Act or any regulations thereunder; or (c) the licensee is adjudged bankrupt. (2) Unless otherwise specified in the licence, the Commission or licensing agent may give a licensee fourteen days notice to show cause why the licence should not be revoked. (3) A notice under subsection (2) shall– (a) set out the relevant condition of the licence or the requirement of the Act to which the breach 84 The Energy Act, 2006 relates; (b) specify the acts, omissions or other facts which, in the opinion of the Commission or the licensing agent, constitute a contravention of the conditions of the licence or requirements of the Act, and the reasons why the Commission or licensing agent is of the opinion that any of the circumstances mentioned under subsection(1) have occurred or arisen; and (c) be served at the licensed premises and shall take effect from the date of service. (4) The Commission or licensing agent shall determine the matter within thirty days from the expiry of the notice. (5) Any suspension or revocation of a licence shall not indemnify the licensee against any penalties for which such person may have become liable under the Act. Replacement of a 86. Where, upon application, it is shown to the licence. satisfaction of the Commission or licensing agent that a licence has been lost, destroyed or defaced, the Commission or licensing officer shall, upon payment of the prescribed fee, issue a duplicate licence to the licensee. Transfer of a 87.(1) A licensee shall not transfer or otherwise divest licence. any rights, powers or obligations conferred or imposed upon him by the licence without the consent of the Commission. (2) The Commission may, on application by any of the following persons, transfer a licence or permit– (a) in the case of a death of the licensee or permit holder, to the legal representative of such licensee or permit holder; 85 The Energy Act, 2006 (b) in the case of the bankruptcy of the licensee or permit holder or assignment for the benefit of his 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 his affairs; or (e) in the case of voluntary transfer of the undertaking, to the new owner of the undertaking. (3) The Commission 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 licence conditions. (5) The Commission 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. (6) In this section “transfer of licence” includes the acquisition of a controlling interest directly or indirectly in the licence holder; and “controlling interest” as used with respect to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management of 86 The Energy Act, 2006 that person, whether through the ownership of shares, voting, securities, partnerships or other ownership interests, agreements or otherwise. Register of licences 88.(1)The Commission shall keep a register, in such and permits. form as it may determine, of all licences and permits granted and shall record therein, in respect of each licence or permit– (a) the particulars required under section 82 and 91; (b) particulars of any duplicate issued or any amendment of the licence or permit made under sections 83 and 86; (c) particulars of any suspension or revocation of the licence or permit under section 85; and (d) such other particulars as may be prescribed. (2) Subject to subsection (3), any person may, during office 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 police force or a public officer acting in the course of his duty; or (b) an employee of the Commission or person authorised in writing by the Commission, may inspect the register without payment of any fee. Appeal against 89. A person aggrieved by the action of the action of the 87 The Energy Act, 2006 Commission or a Commission or a licensing agent in– licensing agent. (a) refusing to renew or grant a licence or revoking a licence; or (b) imposing conditions on a licence; or (c) refusing to replace or amend a licence, may, within thirty days of receipt by him of written notification of such action, in writing appeal, to the– (a) Tribunal in case of an appeal against the Commission; or (b) Commission in case of an appeal against a licensing agent, whose decision shall be communicated within forty-five days of receipt of the appeal by the Tribunal (or the Commission as the case may be) from any such aggrieved person. Construction 90.(1) Any person intending to construct a pipeline, permits. refinery, bulk storage facility or retail dispensing site shall, before commencing such construction, apply in writing to the Commission 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 three copies of plans and specifications; (c) in the case of a pipeline, (i) specify the points, between which the 88 The Energy Act, 2006 proposed pipeline is to run, (ii) state what is to be transported by the proposed pipeline; (d) in the case of a refinery, bulk liquefied petroleum gas, or natural gas facility specify the location, type and capacity; (e) be accompanied by an environmental impact assessment report; and (f) contain such other details as may be necessary. (3) The Commission 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 a pipeline, refinery, bulk storage facility, bulk liquefied petroleum gas facility, natural gas facility or retail dispensing site, as the case may be. (4) A permit shall be subject to such conditions as maybe prescribed. (5) Where the Commission refuses to grant a permit under this section, it shall notify the applicant of such refusal specifying the reasons therefor and shall deliver such notice to the applicant personally or by registered post. Conditions for 91.(1) The Commission shall, before issuing a permit granting permits. under section 90, take into account all relevant factors, including but not limited to- (a) the relevant Government policies; No. 8 of 1999. (b) compliance with the Environmental Management 89 The Energy Act, 2006 and Co-ordination Act, 1999 and in particular, No. 6 of 1996. the report of the Environmental (Impact Cap. 265. Assessment and Audit) Regulations, 2003, the Physical Planning Act, 1996, the Local Government Act and any other relevant legislation; (c) the financial capability of the applicant and methods of financing the proposed pipeline, refinery, bulk storage facility, or retail dispensing site; and (d) any other matter which, in the opinion of the Commission, 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 Commission may deem appropriate, including but not limited to the– (a) duration of the permit; (b) person authorised to execute the works; (c) area in which the works shall be executed; and (d) conditions to be satisfied before any works authorised 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 Commission to the holder of the permit specifying the extent to which the works may be used, notwithstanding that some of 90 The Energy Act, 2006 the conditions have not been satisfied and such permit may, at any time, be revoked by the Commission in a subsequent notice in the Gazette. (4) A notice given by the Commission 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 authorised works, the holder shall, to the extent of partially executed works, be deemed to have satisfied the prescribed conditions. Exemption from the 92. Notwithstanding any other provision of this Act– requirement for a permit. (a) emergency works for the construction of a pipeline, may be executed without any authorisation by the Commission: Provided that as soon as is reasonably practicable and in any event not later than sixty days after the works have commenced or have been executed, the owner of the pipeline shall inform the Commission in writing of the works executed attaching copies of detailed construction drawings of such construction works and the route taken or intended to be taken by the pipeline; (b) no permit shall be required for the construction of a pipeline within a storage depot, a pipeline facility or refinery. Suspension or 93.(1) Subject to subsection (2), the Commission may, revocation of a construction permit. 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. 91 The Energy Act, 2006 (2) Where the Commission intends to revoke or suspend a permit under this section, it shall, 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 Commission 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. Validity of permits. 94. If, after a permit to construct a pipeline, a refinery, a bulk storage facility or a retail dispensing site 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 Commission may allow, the permit shall cease to have effect. Standards for 95. (1) Petroleum imported or produced locally for use petroleum products, equipment, facilities in Kenya, petroleum products, equipment, facilities and and installations. installations shall conform to the relevant Kenya Standard: Provided that where no such standard exists, the relevant international standards approved by the Kenya Bureau of Standards shall apply. (2) A person who offers for sale in Kenya or transports or stores petroleum meant for use in Kenya shall ensure that the specifications of such petroleum is in accordance with subsection (1): Provided that no person diverts for sale in Kenya, goods destined for other markets. (3) A person who– (a) sells petroleum not conforming to the relevant 92 The Energy Act, 2006 Kenya Standard or any other standard approved by the Commission; or (b) stores, transports, or sells adulterated petroleum, commits an offence and shall, on conviction, be liable to a fine not exceeding two million shillings, or to a maximum term of imprisonment of two years, or to both. Maintenance of 96. It shall be the duty of a person licensed to import minimum operational stocks. petroleum to maintain such quantities of petroleum and at such locations as may be prescribed by the Minister in consultation with the Commission. Power of the 97. The Minister may undertake in whole or in part, the Minister to provide strategic petroleum provision of financing, procurement, maintenance and stocks. management of petroleum strategic stocks. Compliance with 98.(1) A person engaged in petroleum business shall environmental, health and safety comply with the relevant Kenya Standard and in the absence of standards. such standard, any other standard approved by the Commission from time to time on environment, health and safety in consultation with the relevant authorities and in conformity with the relevant statutes touching on environment, health and safety standards. (2) In the event of a fire, explosion, oil spill, injury or fatality occurring in the course of operating a petroleum facility or transportation of petroleum, either by accident or through negligence, the operator or person transporting petroleum shall forthwith clean up the polluted or damaged environment, at his own expense, to the satisfaction of the Commission and other relevant authorities. Provided that any person engaged in the transportation of petroleum and petroleum products shall have an oil clean-up plan in compliance with the national oil policy. 93 The Energy Act, 2006 (3) If the operator or person transporting petroleum fails, or unreasonably delays, to carry out the work referred to in subsection (2), the Commission may cause any work not carried out to be executed at the expense of the said operator or person transporting petroleum. (4) Nothing contained in this section shall be construed as relieving the operator or person transporting petroleum 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 petroleum by road, rail, coastal or inland waters, pipeline or any other mode shall institute measures to ensure that their mode of transportation is safe. (6) The Commission 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. Designated parking 99.(1) A local authority shall designate a place or places reserved exclusively for places exclusively reserved for parking of petroleum tanker petroleum tankers. vehicles. (2) A local authority that contravenes subsection (1) commits an offence and shall be liable, on conviction, to pay a fine of fifty thousand shillings for each day or part thereof that the offence continues. Offences Contravening 100.(1) A person who– provisions relating to petroleum undertakings. (a) contravenes any provisions of section 96 on maintenance of minimum operational stock of 94 The Energy Act, 2006 petroleum; (b) being the owner or operator of a refinery, pipeline, bulk liquefied petroleum gas or natural gas facility, service station, filling station or storage depot or transporter of petroleum, fails to institute appropriate environmental, health or safety control measures; (c) being the owner of a pipeline, refinery or bulk liquefied petroleum gas or natural gas facility, contravenes the provisions of this Act or any regulations made thereunder relating to the construction or operation of a pipeline, refinery or bulk liquefied petroleum gas or natural gas facility or regulations thereof; (d) not being the owner of the pipeline or his agent, interferes in any manner with such pipeline; (e) being the owner of a retail dispensing site or storage depot, contravenes the provisions of this Act or any regulations made thereunder relating to the construction or operation of a retail dispensing site storage depot, commits an offence and shall, on conviction, be liable to a fine not exceeding two million shillings, or to a maximum term of imprisonment of two years, or to both. (2) In any case where the person who contravened the provisions of subsection (1) is licensed under this Act, the Commission may suspend or revoke his licence. Contraventions by 101.(1) The owner or master of any ship carrying petroleum carrying 95 The Energy Act, 2006 ships. cargo, any part of which consists of petroleum, who fails to give notice to the port authorities upon entering a port, as may be required by regulations made under this Act shall, on conviction, be liable to a fine not exceeding two million shillings, or to a maximum term of imprisonment of two years, or to both. (2) In the event of the contravention of any regulations made under this Act relating to precautions to be observed with respect to ships carrying petroleum within a port, the owner and the master of the ship in relation to which the contravention occurs shall, on conviction, be liable to a fine not exceeding two million shillings, or to a maximum term of imprisonment of two years, or to both. (3) Any person who, while within Kenya’s Exclusive Economic Zone and Outer Continental Shelf, discharges or allows to escape into the water– (a) petroleum or water mixed with petroleum; or (b) water from bilges or tanks; or (c) water used for flushing pipes and connections; or (d) sand used to absorb petroleum, commits an offence and shall, on conviction, be liable to a fine not exceeding two million shillings, or to a maximum term of imprisonment of two years, or to both. (4) In addition to the penalty imposed under subsection (3), the person liable shall be responsible, at his own cost, for cleaning the water and restoring it to its original status. Regulations for 102. Without limiting the generality of section 6 and in petroleum. 96 The Energy Act, 2006 accordance with section 110, the Minister may, on the recommendation of the Commission, make regulations– (a) defining the kind of petroleum to which the regulations shall apply, and dividing petroleum into classes or categories and making different provisions with regard to such classes or categories; (b) providing for the importation, refining, exportation, landing, loading, shipping, transportation, storage, wholesale and retail of petroleum and prescribing a system of licensing for the purposes aforesaid, the manner in which application for any such licence shall be made, the conditions of licence, the authorities which may grant such licences, the fees which may be charged and any other matters incidental thereto; (c) providing for exemption to the armed forces from the requirement of licences; (d) providing for importation of petroleum through open tendering system and the manner in which such system shall operate; (e) providing for maintenance of minimum operational stocks of petroleum and procedures thereof; (f) providing for maintenance of strategic stocks of petroleum and procedures thereof; (g) providing for the mode of sale, metering, documentation and display of prices of petroleum in retail dispensing sites and depots; (h) providing for environmental, health and safety 97 The Energy Act, 2006 standards associated with the handling, storage and use of petroleum; (i) providing for notice to be given by the owner or master of any ship entering a port with petroleum, and for ascertaining the quantity and specification of any petroleum on board any such ship; (j) determining the places at which, and the conditions on and subject to which, petroleum may be imported, offloaded, landed, stored, loaded or transhipped; (k) providing for the delivery to such officer as may be specified of samples of petroleum landed or intended to be landed and for the testing of such sample; (l) providing for the type and location of the premises in respect of which licences to possess petroleum may be granted, the inspection of premises so licensed and the taking of samples and the testing of petroleum found thereon; (m) governing the design, construction and operation of pipelines, refineries, bulk liquefied petroleum gas facilities, retail dispensing sites, storage depots and providing for the protection of property and the environment and the safety of the public in the construction and operation thereof; (n) governing the design and construction of vehicles to be used in the transportation of petroleum by road, rail, inland or coastal waters; (o) prohibiting or restricting the carriage of goods 98 The Energy Act, 2006 and passengers in vessels carrying petroleum; (p) prescribing the quantity of petroleum that may be conveyed at any one time or in any one vehicle; (q) prescribing the precautions to be observed in the transportation of petroleum, in the manner of packing and the mode and time of transit and in the loading and unloading of vessels used for such transportation; (r) in consultation with the body responsible for standards, prescribing apparatus for testing petroleum, the tests to be applied and the manner in which tests are to be made; (s) in consultation with the body responsible for standards, appointing inspectors and agents for the testing and examination of petroleum and prescribing their powers and duties; (t) prescribing the marking of fuels and categories of the petroleum in which such marking shall be carried out; (u) prescribing for the provision of petroleum statistics and information to the Commission; (v) providing for the development and coordination of a national oil spill response plan including measures to prevent oil spills and a mechanism for compensation in the event of an oil spill; (w) determining the retail prices of petroleum and petroleum products: Provided that a person convicted of an 99 The Energy Act, 2006 offence under this paragraph shall be liable to a fine exceeding Kshs. One million or the withdrawal of the operating licence or both; (x) generally for the better carrying out of the objects and purposes of this Act. PART V ? RENEWABLE ENERGY, ENERGY EFFICIENCY AND CONSERVATION Renewable energy. 103.(1) The Minister 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 Minister may 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 100 The Energy Act, 2006 production, and (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 hydro 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; (j) promoting the production and use of gasohol and biodiesel. Energy efficiency 104.(1) The Minister shall develop and manage a and conservation programme. prudent national energy efficiency and conservation programme. (2) The Minister may perform such functions and exercise such powers as may be necessary under this Act to enhance energy efficiency and conservation, including but not 101 The Energy Act, 2006 limited to– (a) making, in consultation with the Kenya Bureau of Standards, requirements for the particulars to be displayed on labels on equipment or on appliances; (b) taking all measures necessary to create awareness and for the dissemination of information for efficient use of energy and its conservation; (c) strengthening consultancy services in the field of energy conservation; (d) promoting research and development in the field of energy conservation; (e) formulating and facilitating implementation of pilot projects and demonstration projects for promotion of efficient use of energy and its conservation; (f) giving financial assistance to institutions for promoting efficient use of energy and its conservation; (g) supporting the preparation of educational curriculum on efficient use of energy and its conservation for educational institutions, and coordinate with them for inclusion of such curriculum in their syllabus; (h) implementing international co-operation programmes relating to efficient use of energy and its conservation; and (i) giving financial incentives for any investment 102 The Energy Act, 2006 made to replace or install additional capital investments to improve energy efficiency; (j) making it mandatory, in collaboration with Kenya Bureau of Standards, the importation of energy efficient but cost effective technologies. Energy conservation 105.(1) The Commission shall, in consultation with the in factories and buildings. Minister, designate factories or buildings and electrical appliances by types, quantities of energy use, or methods of energy utilization for purposes of energy efficiency and conservation. (2) In the event that there is a reasonable cause, the Commission may give instruction to the owner of any designated factory or building, to furnish factual information on energy utilization for the purpose of inspection and to assure that energy conservation measures are in accordance with the standard, criteria and procedures provided in regulations under this Act and the said owner of the designated factory or building shall comply within thirty days starting from the date of receipt of such instruction, and in default commits an offence and shall, on conviction, be liable to a fine not exceeding one million shillings, or to a maximum term of imprisonment of one year, or to both. (3) If the Commission determines that the owner of the building is not able to comply without financial or technical assistance and that the activities required to be in compliance may be eligible for assistance from an identified source, the Commission may decide to give additional grace period to allow the owner to access assistance from the identified source. (4) The owner of the designated factory shall keep records of information required under regulations under this Act at the designated factory for a minimum of five years, and 103 The Energy Act, 2006 in default commits an offence and shall on conviction, be liable to a fine not exceeding one million shillings, or to a maximum term of imprisonment of one year, or to both. Energy conservation 106.(1) The owner of a building designated under in buildings. section 105, shall conserve energy, audit and analyze energy consumption in his building in accordance with the standards, criteria, and procedures as prescribed by regulations. (2) A person who fails to comply with this provision commits an offence and shall, on conviction, be liable to a fine not exceeding one million shillings, or to a maximum term of imprisonment of one year, or to both. PART VI ? THE ENERGY TRIBUNAL Appeals from 107. Where under this Act the provision is made for decisions of the Commission. appeals from the decisions of the Commission, all such appeals shall be made to the Energy Tribunal, in accordance with the provisions of this Part. Establishment and 108.(1) For the purpose of hearing and determining constitution of the Energy Tribunal. appeals in accordance with section 107 and of exercising the other powers conferred on it by this Act, there is established a tribunal to be known as the Energy Tribunal, hereinafter referred to as the “Tribunal”. (2) The members of the Tribunal shall be appointed from among persons with a university degree and not less than fifteen years relevant experience in matters related to electricity, petroleum, finance, economics, engineering, energy or law and shall consist of– (a) a Chairperson and vice Chairperson appointed by the President, in consultation with the Judicial Service Commission from among persons qualified to be judges of the High Court; 104 The Energy Act, 2006 (b) three other members who are persons possessing, in the opinion of the Minister, expert knowledge of the matters likely to come before the Tribunal and who are not in the employment of the Government or any state corporation; and (c) the members under paragraph (b) shall be appointed by the Minister in consultation with the Attorney General. Conditions of 109.(1) A member of the Tribunal shall hold office for appointment. a period of three years and shall be eligible for re-appointment for one further term of three years. (2) A member of the Tribunal shall hold office on such terms and conditions as shall be prescribed in the instrument of appointment. (3) The provisions set out in the Third Schedule shall have effect in relation to the membership and conduct of business and affairs of the Tribunal. PART VII ? MISCELLANEOUS PROVISIONS Minister may make 110.(1) The Minister may, on the recommendation of regulations generally. the Commission and subject to sections 63 and 102, make regulations for or with respect to any matter that by this Act is required or permitted to be prescribed, or that is necessary or expedient to be prescribed for carrying out or giving effect to this Act. (2) The regulations to be made under this Act may be made by the Commission on its own motion or may be proposed to the Commission by any licensee or person. (3) Before making recommendation of any regulations to 105 The Energy Act, 2006 the Minister under this Act, the Commission shall publish the proposed regulations for purposes of inviting proposals from the public, in such manner as it may deem fit, at least forty days before the regulations are submitted to the Minister. (4) The regulations made by the Minister in accordance with this section may, impose conditions, requiring acts or things to be performed or done to the satisfaction of the Commission, 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 within which such conditions shall be fulfilled. (5) The regulations made under this Act may be made for a limited period or without limit of period, and may be made subject to such conditions as the Minister deems fit, and may contain such supplemental and consequential provisions as the Minister considers necessary for giving full effect to the regulations. Powers of the 111.(1) The Minister shall be responsible for– Minister generally. (a) formulation of policy relating to the energy sector; (b) the appointment of Commissioners of the Commission, members of the Authority, and the Tribunal; (c) the imposition of levies under this Act; (d) formulation and co-ordination of a disaster preparedness plan for the energy sector; (e) policy relating to financing, procurement, maintenance and management of strategic petroleum stocks; and 106 The Energy Act, 2006 (f) the performance of such other functions as are provided under this Act or any other written law. (2) On the occurrence of an emergency the Minister may, in consultation with the Commission, exercise such authority and give such directions as may be necessary in the public interest for the proper continuance or resumption of the production or supply of energy. (3) The Minister may, from time to time, give directions in writing to the Commission with respect to the policy to be observed and implemented by the Commission. Licensee to furnish 112. It shall be the duty of every licensee to furnish to information. the Commission at such times and in such form and manner such information as the Commission may, in writing, require. False information. 113. Any person who makes a false statement or a statement which he has reason to believe is untrue, to the Minister, or to the Commission, committee, agent or an officer acting on behalf of the Commission, as required under this Act, commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand shillings or to a maximum term of imprisonment of six months or to both. Secrecy of 114. No information relating to any matter obtained information. under section 112 shall be published or otherwise disclosed to a third party without prior consent in writing from the person from whom the information was obtained: Provided that nothing in this section shall restrict– (a) the disclosure of such information to- (i) the Minister responsible for energy; 107 The Energy Act, 2006 (ii) any officer or authority having functions in relation to energy, policy development or economic planning of petroleum business in Kenya; (b) the use of such information in any manner, which the Commission deems necessary or expedient in connection with the objects of this Act. Standardisation. 115. No person shall use or employ for or in connection with any of the purposes of producing, generating, transforming, transmitting, distributing, supplying, or importing, exporting, transporting, refining, storing, selling or using, any form of energy, any mode, material or apparatus other than that which complies with the specification or standard of the Kenya Bureau of Standards or where no such standard exists, any international standard approved by the Kenya Bureau of Standards. Commission not to 116. While discharging its functions and exercising its discriminate. powers under the Act, the Commission shall ensure that no particular person is given undue preference or subjected to any undue disadvantage. Reporting of 117.(1) All persons engaged in any undertaking or accidents and incidents. activity pursuant to a licence or permit under this Act shall notify the Commission in writing, in the form and manner prescribed by the Commission, of any accident or incident causing loss of life, personal injury, explosion, oil spill, fire or any other accident or incident causing significant harm or damage to the environment or property which has arisen in Kenya or within Kenya’s Exclusive Economic Zone or Outer Continental Shelf. (2) The Commission may direct an investigation to be carried out into any accident or incident under subsection (1) and take such action as it deems necessary. 108 The Energy Act, 2006 Recovery and 118. Any penalty, fine, fee, expenses or other moneys application of licence fees and recoverable under this Act or a licence, the recovery of which penalties. is not otherwise specifically provided for, shall be a civil debt recoverable summarily. Offences by bodies 119. An employer or principal shall be liable for an corporate or their employees. offence committed by an employee or agent under this Act, unless the employer or principal proves that the offence was committed against his express or standing directions. Penalties not to 120. The penalties imposed under this Act shall be in affect other liabilities addition to and not in derogation of any liabilities in respect of payment of compensation or in the case of a licensee, the revocation of the licence. Prosecution of 121. The Attorney-General may, on the request of the offences. Commission, appoint any officer of the Commission or an advocate of the High Court to be a public prosecutor for the purposes of the offences under this Act. General penalty. 122. Where any default in or contravention of any of the provisions of this Act is made for which no fine or penalty is expressly stated, the person so defaulting or contravening shall, on conviction, be liable to a fine not exceeding one million shillings. PART VIII ? REPEALS, SAVINGS AND TRANSITIONAL PROVISIONS Repeals and 123.(1) Subject to the provisions of subsection (2), the savings. Act No. 11/97 Electric Power Act, 1997 and the Petroleum Act are repealed. Cap. 116. (2) Notwithstanding the provisions of sub-section(1)– Cap. 116. (a) anything done under the provisions of the Electric Power Act, 1997 or the Minister under the provisions of the Electric Power Act, 1997 109 The Energy Act, 2006 and the Petroleum Act before the commencement of this Act shall be deemed to have been done under the provisions of this Act; (b) any statutory instruments issued by the Electricity Regulatory Board or the Minister Cap. 116. under the provisions of the Electric Power Act, 1997 and the Petroleum Act before the commencement of this Act shall be deemed to be statutory instruments granted by the Commission under the provisions of this Act and shall remain in force until specifically revoked under this Act; (c) any revocation of a licence or permit under this Act shall not indemnify the licensee from any liabilities to which the person may have become liable under the Act before such revocation; (d) the tariffs existing at the commencement of this Act shall continue being in place until new tariffs are gazetted under this Act; and (e) any subsidiary legislation issued before the commencement of this Act shall, as long it is not inconsistent with this Act, remain in force until repealed or revoked by subsidiary legislation under the provisions of this Act and shall, for all purposes, be deemed to have been made under this Act. (3) Nothing in this Act or a licence shall exempt the licensee or his undertaking from the provisions of, or deprive of the licensee of the benefits of, any general Act relating to energy or to the supply of, or price to be charged for, energy which may be enacted after the granting of a licence. Transitional 124. The provisions of the Fourth Schedule shall apply. provisions. 110 The Energy Act, 2006

FIRST SCHEDULE (s. 18) PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE ENERGY COMMISSION. The Commissioners 1. The Commissioners shall meet as often as necessary to meet at least four times in a year. for the transaction of business but it shall meet not less than four times every financial year and not more than four months shall elapse between the date of one meeting and the next. The Chairperson to 2.(1) The Chairperson shall preside at every meeting of preside all meetings. the Commission at which the chairperson is present but in the absence of the chairperson, the commissioners present shall appoint a commissioner from among their number to preside at that meeting. (2) The Chairperson or, in the absence of the chairperson a commissioner appointed by the Commission to act in the place of the chairperson, may at any time call a special meeting upon a written request by a majority of the commissioners. Notice of meeting. 3. Unless five commissioners otherwise agree, at least seven days' written notice of every meeting of the Commission shall be given to every commissioner of the Commission. Decision of the 4. Unless a unanimous decision is reached, a decision on Commission to be by majority. any matter before the Commission shall be by a majority of votes of the commissioners present and in the case of an equality of votes, the Chairperson or the commissioner presiding shall have a casting vote. A commissioner is 5. Any commissioner present at a meeting of the entitled to have opinion recorded. Commission or a Committee thereof, shall have the right to require his opinion to be recorded in the minutes if the Commission or the Committee, as the case may be, passes a resolution, which in the opinion of that commissioner is contrary 111 The Energy Act, 2006 to his advice or to law. Commissioner to 6. A commissioner who has a direct or indirect interest in disclose interest. a matter being considered or to be considered by the Commission shall, as soon as possible after the relevant facts concerning the matter have come to his knowledge, disclose the nature of his interest to the Commission and shall not be present during any deliberations on the matter. The Commission to 7. The Commission shall cause the minutes of all cause minutes to be recorded and kept. proceedings of its meetings to be recorded and kept, and the minutes of each meeting shall be confirmed by the Commission at the next meeting of the Commission and signed by the Chairperson or the commissioner presiding at the meeting. Quorum. 8. (1) Subject to subsection (2), five commissioners shall constitute a quorum for the conduct of business at any meeting of the Commission. (2) When there is no quorum at or for the continuation of a meeting of the Commission only because of the exclusion of a commissioner under paragraph 6, the other commissioners present may, if they deem it expedient so to do - (a) postpone the consideration of that matter until there is a quorum; or (b) proceed to consider and decide the matter as if there was quorum.

SECOND SCHEDULE (s 69.) PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE BOARD OF RURAL ELECTRIFICATION AUTHORITY Termination of 1.(1) A member of the Board may resign office by appointment. 112 The Energy Act, 2006 notice in writing delivered to the President or the Minister, as the case may be. (2) The President or the Minister, as the case may be, may on the recommendation of the Board, remove from office a member who- (a) is unable to perform the functions of his office by virtue of mental or physical infirmity of body or mind; (b) is absent from three consecutive meetings of the Board without reasonable cause to the satisfaction of the Board in consultation with the Minister; (c) is declared or becomes bankrupt; (d) fails to disclose to the Board any interest in any contract or matter before the Board; or (e) is convicted of criminal offence involving dishonesty, fraud or moral turpitude and sentenced for a term exceeding six months. Meetings of the 2.(1) The Board shall meet as often as necessary for the Board. transaction of business at such places and at such times as may be decided upon by the Board but it shall meet at least four times every year. (2) Subject to the provisions of this Act, the Board may regulate its own procedure. Headquarters. 3. The headquarters of the Authority shall be Nairobi. Disclosure of 4. A member of the Board who has a direct or indirect interest. personal interest in a matter being considered or to be considered by the Board shall as soon as possible after the relevant facts 113 The Energy Act, 2006 concerning the matter have come to his knowledge disclose the nature of his interest to the Board, and shall not be present during any deliberations on the matter by the Board or take part in decision of the Board on the matter. Delegation by the 5. The Board may, by resolution either generally or in Board. any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the Authority, the exercise of any of the functions or duties of the Board under this Act or under any other written law. Contracts and 6. Any contract or instrument which, if entered into or instruments. executed by a person not being a body corporate, would not require to be under seal, may be entered into or executed on behalf of the Board by any person generally or specially authorised by the Board for that purpose.

THIRD SCHEDULE (s. 109) PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE ENERGY TRIBUNAL Oath of office. 1. A person who is appointed a member of the Tribunal shall, before assuming the duties of his office take and subscribe to the oath of allegiance to the office. Disclosure of 2. Where a member of the Tribunal, as constituted for the interest. purposes of a proceeding, has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions, he shall disclose the interest to the parties to the proceeding and shall not be present during any deliberations on the matter by the Tribunal to take part in decision of the Tribunal on the matter. Termination of 3. (1) A member of the Tribunal may resign his office appointment. by notice in writing addressed to the President or the Minister, as the case may be. 114 The Energy Act, 2006 (2) The President or the Minister, as the case may be, may in consultation with the Judicial Service Commission, remove from office, a member of the Tribunal who- (a) is unable to perform the functions of his office by virtue of mental or physical infirmity of body or mind; (b) is absent from three consecutive meetings of the Tribunal without reasonable cause to the satisfaction of the Tribunal in consultation with the Minister; (c) is declared or becomes bankrupt; (d) fails to disclose to the Tribunal any interest in any contract or other matter before the tribunal; or (e) is convicted of a criminal offence involving dishonesty, fraud or moral turpitude and sentenced for a term exceeding six months. Secretary. 4. The Attorney General shall designate a public officer to be the secretary to the Tribunal. Official seal. 5. (1) The Tribunal shall have an official seal. (2) The official seal of the Tribunal shall be affixed by the Chairperson to such documents as the Tribunal may direct. (3) In the absence of the Chairperson the Tribunal may nominate one member to authenticate the seal of the Tribunal on behalf of the Chairperson. (4) The Courts shall take Judicial notice of documents 115 The Energy Act, 2006 where the seal is properly affixed. Arrangement of 6.(1) The Chairperson shall be responsible for ensuring business. 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- (a) the arrangement of the business of Tribunal; (b) the places at which the Tribunal may sit generally; and (c) the 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. Quorum of the 7. (1) The Chairperson shall preside at all sittings of the Tribunal. 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. Technical advice. 8. The Tribunal may seek technical advice from persons whose specialised 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. Remuneration. 9.(1) There shall be paid to the Chairperson and the 116 The Energy Act, 2006 members of the Tribunal such remuneration and allowance as the Minister may determine. (2) Any person giving technical advice to the Tribunal shall be paid such allowance as may be determined by the Minister. Jurisdiction of the 10. (1) The Tribunal shall have jurisdiction to hear and Tribunal. determine all matters referred to it, relating to the energy sector arising under this Act. (2) For greater certainty, the jurisdiction of the Tribunal shall not include the trial of any criminal offence or the hearing of any dispute that a licensee and any other party may have agreed to settle in accordance with their agreement. Power of review and 11. (1) The Tribunal may, of its own motion or upon appeals from Tribunal. application by an aggrieved party, review its judgements and orders. (2) Judgements and orders of the Tribunal shall be executed and enforced in the same manner as judgements and orders of the High Court. (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 appeals from the High Court in civil matters shall, with the necessary modifications or other adjustments as the Chief Justice may direct, apply to appeals from the Tribunal to the High Court. (5) Except in the case of an appeal under this section it shall not be lawful for any court or tribunal to entertain any action or proceeding of any nature for the purpose of questioning any judgement, finding, ruling, order or proceeding of the 117 The Energy Act, 2006 Tribunal. (6) A person aggrieved by the decision of the High Court under this section may, within thirty days of the date of the decision, appeal to the Court of Appeal. Procedure of the 12. (1) The Tribunal shall meet as and when there is Tribunal. 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. (4) Except as prescribed in this Act, the Tribunal shall regulate its own procedure.

FOURTH SCHEDULE (s. 124) TRANSITIONAL PROVISIONS Commission to be 1. (1) The Energy Commission shall be the successor to successor of Electricity the Electricity Regulatory Board established by the Electric Regulatory Board. Power Act (now repealed) and subject to this Act, all rights, duties, obligations, assets and liabilities of the Electricity Regulatory Board existing at the commencement of this Act shall be automatically and fully transferred to the Energy Commission and any reference to the Electricity Regulatory Board in any contract or document shall, for all purposes, be deemed to be a reference to the Energy Commission established under section 4. (2) The persons who at the commencement of this Act 118 The Energy Act, 2006 are the Chairperson and members of the Electricity Regulatory Board shall become Chairperson and Commissioners respectively, as the case may be, of the Commission for the remainder of their tenure in accordance with their appointment under the repealed Act. (3) For the greater certainty and subject to subsection (2), such persons shall have and may exercise and perform all the powers and functions of Chairperson or Commissioners, as the case may be, as if they were appointed under Section 10. (4) Every person who at the commencement of this Act is an employee of the Electricity Regulatory Board (not then being under notice of dismissal or resignation) shall, on that day and subject to this Act, become an employee of the Commission on the same terms and conditions. 119 This document was created with Win2PDF available at http://www.daneprairie.com. The unregistered version of Win2PDF is for evaluation or non-commercial use only.