KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Asssociates
Competition Authority may require any participant in that sector to grant it or any person authorised in writing by it access to records relating to patterns of ownership, market structure and percentages of sales. 2.5 Surveillance to Detect Anti-Competitive Behaviour EPRA is mandated, in consultation with CAK, to monitor trade practices in the electricity sector and promote competition. This role is supported by both sector-specific legislation and general competition law. The regulator also ensures fair competition and transparency in mechanisms such as feed-in tariff systems and broader electricity market operations. The Energy Act and the Energy (Electricity Market, Bulk Supply and Open Access) Regulations provide the primary sector-specific framework for address- ing anti-competitive behaviour. These instruments empower EPRA to review the electricity market peri- odically to enhance competition, improve efficiency and strengthen reliability and quality of service. EPRA is further required to monitor the trade practices of licensees and contractors, working in co-ordination with CAK to identify and address market distortions. At the general level, the Competition Act is the prin- cipal legislation prohibiting anti-competitive conduct, including restrictive trade practices, abuse of domi- nance and abuse of buyer power. It establishes a com- prehensive enforcement regime under CAK, which is responsible for investigating complaints, conducting market inquiries and enforcing compliance. The Energy (Licensing) Regulations reinforce competi- tion principles by requiring licensees to avoid undue preference or discrimination, refrain from anti-com- petitive arrangements, and comply with all regulatory directives aimed at preserving a level playing field across the electricity value chain. EPRA also has significant enforcement powers under the Energy Act, including issuing binding directives, setting and approving tariffs, investigating complaints, and resolving disputes between market participants. These tools enable EPRA to address conduct that may undermine fair competition or service delivery.
Meanwhile, CAK may impose remedial measures, including financial penalties of up to 10% of annual turnover, cease-and-desist orders, or structural rem- edies such as divestiture where there is excessive concentration of market power. Together, EPRA and CAK provide a dual-regulatory framework that combines sector oversight with com- petition law enforcement to safeguard fair competition in Kenya’s electricity market. 3. Generation Facilities 3.1 Constructing and Operating Generation Facilities The Energy Act is the principal law that governs the construction and operation of generation facilities. It became effective on 8 March2019, and its main pur- pose was to consolidate the laws relating to energy. In addition to the Energy Act, the following would be applicable on a case-by-case basis, depending on the proposed project procurement and implementation structure 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 Community Land Act (Cap. 287); • the Computer Misuse and Cybercrimes Act (Cap. 79C); • the Employment Act (Cap. 226); • the Environmental Management and Co-ordination 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).
201 CHAMBERS.COM
Powered by FlippingBook