KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Asssociates
3.2 Obtaining Approvals to Construct and Operate Generation Facilities The Energy Act and associated licensing framework establish a structured process for regulating electricity generation in Kenya, particularly for projects exceed- ing 1 MW. Any person intending to generate electricity above this threshold must obtain a licence from EPRA; smaller self-generation projects below 1 MW for own use are exempt. Applications must be submitted both online through the EPRA portal and in hard copy, and must include comprehensive corporate and compliance documen- tation, including: • incorporation documents; • director and shareholder details; Applicants are also required to publish a 15-day pub- lic notice in at least two newspapers, to invite public comments and objections. They must also provide detailed technical and project documentation, such as: • county planning approvals; • environmental approvals from the National Environ- mental Management Authority (NEMA); • proof of land rights; • grid interconnection studies; • feasibility studies; • financial statements; and • environmental and social impact assessments. Projects must align with national energy planning frameworks. EPRA reviews applications within defined timelines, confirming completeness within 15 days and issuing a decision within 60 days. The evaluation considers environmental, technical, financial and social factors. Overall, the framework ensures generation projects are sustainable, viable, transparent and aligned with national development objectives. • tax compliance certificates; • identification documents; and • proof of office presence.
3.3 Approvals to Construct and Operate Generation Facilities The general terms and conditions contained in an electricity generation licence under the Energy Act and related regulations cover a broad range of oper- ational, financial and compliance obligations. These include provisions on bulk and retail tariffs, charges for electrical energy and capacity, and the determination of network use-of-system charges for transmission and distribution services. Licences also specify the term of the licence, the maximum capacity of supply and the area of operation, while requiring compliance with all applicable environmental, health and safety laws. Licensees remain subject to liability under con- tract and tort law, and are bound by restrictions on change of control, mergers or disposal of assets, as well as obligations relating to financial, performance and incident reporting. Generation licensees must comply with all laws gov- erning the development, construction and operation of power projects, and must co-ordinate with trans- mission or distribution licensees and the system oper- ator for the evacuation of electricity. Under the Energy (Electricity Market, Bulk Supply and Open Access) Regulations, generation licensees are required to supply electricity in accordance with market con- tracts, participate in maintaining system stability and security, and engage in electricity trading within the market framework. The Regulations further impose obligations on all licensees to comply with the Grid Code, participate in ancillary services where required, and adhere to market rules, with breaches subject to sanctions including the suspension or revocation of licences. Licensees must also comply with open access principles, enabling non-discriminatory use of networks. Notably, EPRA cannot unilaterally amend licence terms without the consent of the licensee, although licensees may apply for amendments or relaxation of conditions. In cases of force majeure, EPRA may suspend obligations where performance is prevented, subject to notification and regulatory oversight.
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