KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Associates
by the project. This impacts all projects that may have a significant adverse environmental impact (including power and infrastructure projects). Finally, the Physical and Land Use Planning Act (Development Control for Strategic National Pro- jects) Regulations published under the Physical and Land Use Planning Act require a developer undertaking a strategic national project (which includes designated energy projects) to con- sult, publish, consider national security and hold stakeholders’ meetings before and during the development of the project. 3.3 Approvals to Construct and Operate Generation Facilities The general terms and conditions contained in the licence for electric power undertakings address the following key issues: • provisions for bulk and retail tariffs or charges for electrical energy and capacity for different types of licensees and classes of consumers; • provisions for the determination of charges for use of the transmission and distribution network services; • the term of the licence; • the maximum capacity of supply of the undertaking; • the area of supply of the undertaking; • a requirement to comply with all applicable environmental, health and safety laws; • a stipulation that the licensee is subject to liability under tort and contract laws; • change of control, merger and disposal restrictions; • financial and performance reporting obliga- tions; and • incident reporting obligations. A generation licence also requires the licensee to comply with laws applying to the develop-
ment, building, operation or maintenance of the undertaking. The generation licensee is further required to co-ordinate with the transmission or distribution network operator for the conveyance of electrical energy produced by it from its gen- erating station or plant, and to comply with the instructions of the system operator, if any. The Energy Act prohibits EPRA from altering, revising or modifying a term or condition of the licence without the consent of the licensee. An application for an amendment or relaxation of a term or condition of approval should be made to EPRA by the licensee. The form of licence addresses circumstances when the licensee’s obligations may be relaxed, such as when the licensee is prevented from per- forming any of its obligations under the licence or permit due to force majeure. In this case, the licensee is obliged to notify EPRA of the obli- gations they are prevented from performing as soon as reasonably practicable, and EPRA has discretion to suspend those obligations for so long as the force majeure continues, subject to certain conditions. 3.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Generation Facilities The Energy Act provides that a person may develop energy infrastructure on, through, over or under any public, community or private land, subject to the provisions of relevant written law. The applicant for a generation licence must demonstrate rights to the land on which the generation plant will be installed, either through ownership of the land or through a long-term lease or licence for the land. The same is appli- cable for solar rooftop projects, where the gen-
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