The Makueni County Sand Conservation and Utilisation (Amendment) Act, no. 1 of 2022

1. This Act may be cited as the Makueni County Sand Conservation and Utilization (Am endment) A ct, 2022. A m en d m en t of Sect i o n 2 o f N o . 1 o f 20 15

2. The M akueni County Sand Conservation and Uti lization A ct , 2015 in this A ct referred to as “ the principal A ct “ i s am en d ed i n sect i o n 2- (a) by inserting the following new defi nitions in their p rop er alphabetical sequence as follow s— “ A ut h o r ized o ffi cer ” m ean s an o f if cer w h o at t h e t im e is formally empowered by the Authority to conduct business on its behalf; Board” means the Board of the Authority; ( i Designated roads” means roads that may be designated by the A uthority from time to time ; “ Transportation” means the movement, loading, unloading an d o r storage of sand incidental to the movement; “ V ehicle owner” means a registered ovra er, an agent o r a p er son having the vehicle at the time of ar rest; (b) in the defi nition of “ designated site” by inserting “ or ot her w i se communicated” aft er the word gazette, (c) in the defi nition of “ sand” by deleting the words ‘ do es n ot include si l ica sand, thi s’ A m en d m en t o f Sect i o n 3 o f N o . 1 o f 2 0 15

3. Section 3 of the principal Act is amended (a) in subsection (a) by deleting the expression “ and Sand Conservation Fund” immediately aft er the words “ within the county” . I 2 N o. l M akueni County Sand Conser vation and Utilization (Amendment) 2022 A m en d m en t o f Sect i o n 7 o f N o . 1 of 20 15

4. Section 7 of the principal Act is amended— (a) in subsection ( 1) and (3) by capitalizing the “ B” i n t he w ord “ board” t o read “ B oard” ; (b) ( 1) (b)The Chief ofi cer of the department in which th e A uthority is domiciled; (c) in subsection ( 1) (c ) insert the following sentence ‘considering youth, Persons With Disabilities and women’ aft er the w o rd “ appointed” ; (d) in subsection ( 1) (e ) delete the last letter ‘s’ i n th e w o r d “ representatives” ; (e) in subsection 1(g) by deleting the w hole sentence and replacing therefor with the w ords ‘a representative of non-state a c t o r s operating w ithin the County at that time’; (f) by inserting a new sentence (5) the members referred to in ( 1) (a) and (c) above shall— (i) serve for a term of three years; and (ii) be eligible for reappointment for one ft irther t erm o f 3 y e ar s ; (g) in subsection (7), (8), (9), ( 10), ( 11), ( 12), ( 13) and ( 14) by substituting the word “ Authority” w ith “ Board” ; and (h) in subsection (3) by inserting the sentence “ the B o ard o f t h e Authority shall appoint staf f or agents of the Authority a s necessary for the proper discharge of its ft mctions u n d er th i s A ct upon such terms and conditions of serv ice as the Board m ay determine” immediately aft er the words “ County Public Ser v i ce B o ar d ” . A m en d m en t o f Sect i o n 8 o f N o. 1 of 2 0 15

5. Section 8 of the principal Act is amended by substituting th e word “committee” with the word “Authority” . A m en d m en t o f Sect i o n 9 o f N o . 1 of 2 0 15

6. Section 9 of the principal Act is amended— (a) in subsection ( 1) by substituting the words “ the c om m i t tee” w i t h “ the Board” aft er the word “year” and substituting th e w o rd “ committee” with “Authority” immediately before the w o rd s “ for that year” ; 3 2022 M akueni County Sand Conser vation and Utilization (Amendment) N o. l (b) in subsection (2) by substituting the word “ Conunittee” w i th “ A uthority ” ; (c) in subsection (2) (b) by substituting the word “ A uthority” w ith “ Board” ; and (d) by inserting a new subsection to read. (3) The funds of the A uthority shall consist of — (a) 2.25 % of the County annual budget appropriated by the County A ssembly; (b) such moneys as payable to the Authority pursuant to t h i s A c t o r any other written law ; and (c) all moneys from any other source provided, gift ed, granted, donated or lent to the A uthority . A m en d m en t o f Sect i o n 10 o f N o . 1 o f 2 0 15

7. Section 10 of the principal Act is amended— (a) in subsection ( 1) by substituting the word “ Committee” w i th “ Board” ; (b) in subsection (2) by deleting the expression “ within a period of two months from the end of each if nancial year the C o m m i ttee sh al l su b m it t o t h e au d it o f if cer o r t o an au d it or appointed by the county Government the accounts of the Committee together with” and substituting with the following expression “ W ith i n a period of three months from the end of each if nancial year , the B o ar d sh a l l su b m i t t o t h e A u d ito r G en er al th e ac cou nt s o f th e Authority in respect of that year together with; and (c) in subsection (2) (a) and (b) by substituting the w o r d “ Comm ittee” w ith “ A uthority” . A m en d m en t o f S ec t i o n 1 1 o f N o . 1 o f 2 0 15

8. Section 11 of the principal A ct is amended by repealing th e ent i r e sect i o n 1 1. A mendment of Section 13, 14, 15 and 16 of No. 1 of 2015

9. Sections13, 14, 15 and 16 of the principal A ct are amended by substituting the expression “ Sand Water Resource Users A sso c iat io n s” w i th “ W at er R esou rce U ser s A sso c i at i o n s” . A m en d m en t o f Sect i o n 14 o f N o . 1 o f 2 0 15

10. Section 14 of the principal Act is amended by deleting th e marginal note and substituting therefore the following marginal note— 4 No. l M akueni County Sand Conser vation and Utilization (Amendment) 2022 Wa ter R eso u r ce User A sso ci a ti on s A m en d m en t o f Sect i o n 15 o f N o . 1 o f 2 0 15

11. Section 15 of the principal Act is amended by deleting t h e marginal note and substituting therefor the following marginal note— Composition of the Water Resource User Associations A m en d m en t o f Sect i o n 16 o f N o . 1 o f 2 0 15

12. Section 16 of the principal Act is amended by deleting th e marginal note and substituting therefor the following mar ginal note- F unctions of the Water Resource User Associations A m en d m en t o f Sect i o n 18 of N o . 1 o f 2 0 15

13. Section 18 of the principal Act is amended in subsection (2) (b) by deleting the whole subsection (2) (b) which states “ T h e E x ecu t i v e Committee M ember shal l make regulations for the construction o f san d dams, gabions and any other conservation activities. A m en d m en t o f Sect i o n 2 0 o f N o . 1 o f 2 0 15

14. Section 20 of the principal Act is amended— (a) in subsection (1) by substituting the words “ issued by the government” with “ issued by the Authority” and subsequently substituting the word “ Executive Committee Member” w ith “ Authority” ; and (b) in subsection (3) by inserting the following expression “ an d i s liable to a if ne of not less than 100,000 Kenya Shillings o r t o imprisonment for a term of 6 months or both” aft er t h e w o r d “ o ff en ce” . A m en d m en t o f Sect i o n 2 5 o f N o . 1 o f 2 0 15

15. Section 25 of the pri ncipal A ct is amended by substituting th e words “A licensing offi cer” with “ The Authority” . A m en d m en t o f Sect i o n 2 6 o f N o . 1 o f 2 0 15

16. Section 26 of the principal Act is amended— (a) in subseetion ( 1) (b) by deleting the words “ or subsequent” immediately before the word “ offence; (b) by inserting the following new subsection ( 1) c; 5 20 22 M akueni County Sand Conser vation and Utilization (Amendment) N o. l (c) for a third and subsequent of fence— (i) to a if ne not less than 60,000 Kenya shill ings o r t o a n imprisonment for a term not less than 9 months or to b oth f or the loader ; (ii) to a if ne not less than 300,000 Kenya shillings o r t o imprisonment for a term not less than 18 months for t h e dr iver; (iii) to a if ne not less than 600,000 Kenya Shillings o r t o imprisonment for a term not less than 36 months for t h e v ehicle ow ner” ; and (d) by inserting the follow ing new subsection (2)— (2) Any person who is found in possession of illegally harvested sand shall be guilty of an offence and is l i ab l e t o a if n e of not less than 50,000 Kenya Shillings or to imprisonment f o r a t erm n ot l ess th an 6 m o nt h s i n d ef au lt , (e) by inserting the following new subsection (3)— (3) Any person who wilfully obstructs, resists, assaults an d o r prevents an authorized offi cer in due execution of their du t i es commits an of fence and shall be liable upon conviction to a f i n e not less than 100,000 Kenya shillings or to imprisonment f o r a term not less than 1 year , (f) by inserting the following new subsection (4)— (4) Any person who intentionally or recklessly destroys t h e property, equipment or tools of the Authority commits a n offence and shall be liable upon conviction to a if ne n ot less th an 100,000 Kenya Shillings or to imprisonment for a term n o t l ess than 1 year, (g) by inserting the following new subsection (5)— (5) Any person who impersonates an offi cer of the Authority f or any purpose commits an offence and shall be liable upon conviction to a if ne not less than 100,000 Kenya Shillings or to an imprisonment not less than 1 year, (h) by inserting the following new subsection (6)— (6) Any person who fails to stop at a barrier erected by the Authority or interferes with the operations at the b arr i er co m m i t s an offence and shall be liable upon conviction to a if ne not less than 100,000 Kenya Shillings or to imprisonment for a term not less than 1 year. 6 N o. l Makueni County Sand Conser vation and Utilization (Amendment) 2022 (i) by inserting the follow ing new subsection (7)— (7) Any person who contravenes any provision of this A ct f o r w hi ch no penalty is prov ided shall, on conviction be hable t o a f i ne n ot exceeding 500,000 K enya Shillings or to imprisonment f o r a term n ot exceeding 3 years or botK (j) in subsection (7) by adding the follow ing marginal n o t e — “ General penalty” . A m en d m en t o f Sect i o n 2 7 of N o. 1 o f 2 0 15

17. Section 27 of the principal A ct is amended— (a) in subsection (1) by substituting the words “ Sand Resource U ser A sso ci at i on ” w ith t h e w or d s “ W ater R esou rce U ser s A sso c i at io n ” i n accor dan ce w it h Sect i o n 2 9 o f th e W ater A ct , 2016 and subsequently substituting the expression “ and gazette in the county Gazette” with the word “ and gazette or o th er w i se communi cate” ; (b) in subsection (2) by substituting the word “ Committee” w i t h th e word “Authority” ; and (c) in subsection (3) by substituting the expression “ w i l l h av e a management plan” immediately aft er the word “ site” an d substituting it with the expression “ shall be required to develop a management plan” . A m en d m en t o f Sect i o n 3 0 o f N o . 1 of 2 0 15

18. Section 30 of the principal Act be amended— (a) in Subsection ( 1) by deleting the words “ persons ar e all ow ed t o harvest, extract, scoop or transport sand” and replacing t her eo f with the words “ Sand harvesting, extraction, scooping an d o r transportation shall only be allowed” ; and (b) in subsection (2) by deleting the words “imdertakes the activity not within the specified time shall be liable of an offence upon conviction be liable to imprisonment for term of two y ears o r a if ne of 200,000 shillings or both immedi ately aft er t h e w o rd undertakes and replace thereon with the words “ contravenes t h e provisions in ( 1) above commits an of fence and is liable t o a if n e of Kenya Shillings 200,000 or upon conviction to imprisonment for a term not exceeding two years or both. 7 2022 Makueni County Sand Conser vation and Utilization (Amendment) No. l A m en d m en t of Sec t i o n 3 1 o f N o . 1 o f 2 0 15

19. Section 31 of the pri ncipal Act is amended in subsection (3) by deleting the word “ Committee” and substituting it w ith t h e w ord “ Authori ty” and subsequently deleting the expression “ state o f if cer” an d substituting it w ith the expression “ any other authorized o if cer ” . A m en d m en t o f Sect i o n 3 2 o f N o . 1 o f 2 0 15

20. Section 32 of the pri ncipal A ct is amended in subsection (2) by deleting the expression “Any person authorized to sell sand w i l l b e required to issue receipt to the purchaser and keep records of such receipt of payment for peri odic inspection by the county revenue c o l l ecto r o r relevant authorities” and substituting it with the expression “ Any person authorized to harvest or trade in sand will be required to keep records for peri odic inspection by the A uthori ty” . A m en d m en t o f Sect i o n 33 o f N o. 1 o f 20 15

21. Section 33 of the principal Act is amended— (a) in subsection ( 1) by deleting the expression “ Payments f r o m th e sale of sand shall be m ade in the form of either bank er's cheque or cash deposit to the Authori ty’s bank account and substituting it with the expression “ All payments to the Authori ty sh al l b e made in the forms of either of the following modes— (i) cash payment to the Authority’s offi ce subj ect t o th e issuance of a receipt; or (ii) electronic cash transfer; or (iii) direct bank deposit to the Authority’s bank account, (b) by inserting a new subsection (3)— (3) “ upon payment, Authority shall issue receipts as proof of payment’ (c) by inserting a new subsection (4)— (4) “ Any person who attempts, purports to collect or c o l l ect s f ees o r charges fr om sand and is not authorized to do so under this A ct is gui lty of an of ence which upon conviction is liable to a if n e n o t l ess t h an 1,000,000 Kenya shillings or to imprisonment for a term of if ve years or b ot h ” . 8 No. l M akueni County Sand Conser vation and Utilization (Amendment) 2022 A m en d m en t o f Sect i o n 3 4 o f N o . 1 o f 2 0 15

22. Section 34 of the pri ncipal A ct is amended— In subsection (3) by deleting the expression “to penalties as provided under thi s A ct” and substituting it therefor with the expression “ to a fine not less than 5,000 Kenya shillings and not exceeding 10,000 K enya Shillings or to imprisomnent for a term not exceeding 1 m on th ” . A m en d m en t of Sect i o n 3 5 of N o. 1 o f 2 0 15

23. Section 35 of the principal A ct is amended— (a) in subsection ( 1) by deleting the expression “ the county , the Authority and the sand loaders” immediately aft er the w o r d s “ shared” ; (b) in subsection ( 1) (a) by deleting the w ords “ the con ser v at i on f un d immediately before the words “ shall go to” and substituting it with the word “Conservation” and inserting t h e expression ‘as shall be determined by the Authority’ aft er t h e word ‘ conservation’ ; (c) in subsection (1) (b) by substituting the expression “ 2 5 % “ w it h “ 35%” ; (d) in subsection (1) (c) by substituting the expression “ 20 % sh al l go to the County Government as revenue with the expression “ 5% shall go to W ater Resource U sers A ssociations for conservation and operations” ; and (e) in subsection (1) (d) by substituting the expression “ 5% shal l go to the local community with the expression “ 10% shall go to the Community” . A m en d m en t of Sect i o n 3 6 o f N o . 1 o f 2 0 15

24. Section 36 of the principal Act is amended— (a) by deleting the word ‘the’ appeari ng aft er the w o r d ‘ m o n it o r ’ and substituting w ith the word ‘and’; and (b) by deleting the word ‘rehabilitation’ and therefor substituting w it h t h e w o r d ‘ reh ab i l i tate ’ . A m en d m en t o f Sect i o n 3 8 o f N o . 1 o f 2 0 15

25. Section 38 of the pri ncipal Act is amended— (a) in subsection (2) by deleting subsection (h) and substituting it therefor with the following new subsection— 9 2022 M akueni County Sand Conser vation and Utilization (Amendment) N o. l (i) “ construction of sand dams, gabions, de-silting o f ch eck dams and any other conservation activities” ; (b) in subsection (2) by inserting a new paragraph immediately aft er subseetion (2)(h) as follows— (ii) “ enforcement of the provisions under this Act” ; (c) in subsection (2) by inserting a new paragraph immediately aft e r subsection (2)( 1) as fol lows— (k) such other matters as may be necessary for full implementation 6 6 o f t h i s A ct” . i J I i