KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Associates
energy sector, in co-ordination with other statutory authorities; and • investigate complaints and determine dis- putes between parties over any matter relat- ing to licences and licence conditions under the Energy Act. The CAK is obliged to make a determination upon the completion of investigations, and may declare that the conduct under investigation constitutes an infringement of the prohibitions in the Competition Act. It may restrain the under- taking from engaging in that conduct, and may impose financial penalties of up to 10% of the annual turnover and order entities with unwar - ranted concentration of economic power in any sector to dispose of such portion of their inter- ests in the production, distribution or supply of services as the CAK deems necessary to remove the unwarranted concentration. The Energy Act is the principal law that governs the construction and operation of generation facilities. It came into effect on 28 March 2019, and its main purpose was to consolidate the laws relating to energy. In addition to the Ener- gy Act, the following would be applicable on a case-by-case basis, depending on the proposed project procurement and implementation struc- ture and location, as well as various approvals and permits applicable to the project: • the Civil Aviation Act (Cap 394); • the Competition Act (Cap 504); • the Computer Misuse and Cybercrimes Act (Cap 79C); • the Employment Act (Cap 226); 3. Generation Facilities 3.1 Constructing and Operating Generation Facilities
• the Environmental Management and Co-ordi- nation Act (Cap 387); • the Income Tax Act (Cap 470); • the Land Act (Cap 280); • the National Construction Authority Act (Cap 118); • the Occupational Safety and Health Act (Cap 236A); • the Physical and Land Use Planning Act (Cap 303); • the Public Finance Management Act (Cap 412A); • the Public Private Partnerships Act (Cap 430); • the Public Procurement and Asset Disposal Act (Cap 412C); and • the Scrap Metal Act (Cap 503). 3.2 Obtaining Approvals to Construct and Operate Generation Facilities The Energy Act requires any person who wishes to generate electrical energy exceeding 1 MW to obtain a licence from EPRA, with an exemption where power generated is below 1 MW and is intended for the generator’s own use. Further detailed licensing processes are captured in the Energy (Electricity Licensing) Regulations, which cover procedures for the application, issuance and suspension or revocation of the licence. Applicants are expected to submit their applica- tion together with a newspaper advertisement and letter to the relevant local authority giv- ing notice of the application, and to provide a description of the undertaking (including maps). Accompanying documentation includes: • a valid environmental impact assessment (EIA) licence; • audited accounts for the last three years; • a Certificate of Incorporation; • a title deed or valid lease agreement for the project land;
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