KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Associates
4.5 Monopoly Rights to Provide Transmission Services
Forest Land The process of acquiring a right of way through a forest varies depending on the classification of the forest but is governed primarily by the For- est Conservation and Management Act, 2016, which establishes the Kenya Forest Service. For- ests in Kenya are classified into three categories: • public forests, which are managed by the Kenya Forest Service and include forests on public land defined in Article 62 of the Consti- tution; • community forests, which are located on land lawfully registered or held by communities; and • private forests, which are found on land owned by individuals or institutions under freehold or leasehold tenure. An applicant intending to acquire a right of way through a public or gazetted forest must submit a formal application to the Kenya Forest Service detailing: • the purpose of the right of way; • the exact location and size of the forest land to be affected; • the intended duration of use; and • measures to mitigate any environmental impact. Upon successful application, the Kenya Forest Service may issue a forest user licence or permit, pursuant to Section 56 of the Forest Conser- vation and Management Act, 2016. The licence shall outline the terms of use, including conser- vation obligations, access limits and duration. For community forests, applicants must obtain prior consent from the affected community or group representatives. Public participation is also mandatory under the EIA process.
A transmission licensee has exclusive rights to construct and operate transmission facili- ties within a specified geographical territory, subject to the provision of non-discriminatory open access to any licensee or eligible con- sumer upon the payment of fair and reasonable transmission or wheeling charges. The exclu- sive rights are obtained through a transmission licence issued by EPRA, pursuant to the provi- sions of the Energy Act. The exclusive rights are provided for in the trans- mission licence issued by EPRA, which provides for a specified geographical area of operation. However, as discussed in 4.3 Terms and Condi- tions Imposed on Approvals to Construct and Operate a Transmission Line and Associated Facilities , the exclusive right is subject to the transmission licensee providing non-discrimina- tory open access to its transmission system for use by any licensee or eligible consumer upon payment of fair and reasonable transmission or wheeling charges. While KETRACO, and partly KPLC, have been the only players in the transmission segment, Kenya is poised to be the first country in Africa to successfully implement independent power transmission lines under the Public Private Part- nerships Act, paving the way for private sector participation in this space. 4.6 Transmission Charges and Terms of Service The Energy Act requires all contracts for the provision of transmission network services to be submitted to EPRA for approval before execu- tion, which shall ensure that the rates or tariffs established in the contract are just and reason- able. EPRA has published Guidelines for the
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