KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Asssociates
• any other lawful compensation mechanism. For projects on community land, the Community Land Act requires a formal agreement between the investor and the community, negotiated through a free, prior and informed consultation process. Such agreements must address environmental, social, cultural and eco- nomic impacts, provide for compensation and benefit- sharing, and include obligations for land rehabilitation. Importantly, these agreements must be approved by at least two-thirds of adult community members at a duly constituted assembly, ensuring meaningful com- munity participation and consent. Overall, Kenya’s legal framework seeks to balance investment facilitation with property rights protec- tion, community participation and fair compensation, ensuring that energy infrastructure development pro- ceeds in a lawful, transparent and socially responsible manner. 3.5 Decommissioning a Generation Facility The Energy Act requires the removal of all infrastruc- ture and the rehabilitation of the land, and all decom- missioning activities must meet any good practices that may be prescribed by the Cabinet Secretary in regulations. The Form of Licence under the Energy (Licensing) Regulations require a licensee to obtain prior written approval from EPRA before disposing of any of its assets. This requirement may be waived if EPRA has issued a directive granting a general consent for the disposal of the assets of a specified description or below a specified value and, prior to the disposal, the licensee has provided EPRA with evi- dence that the asset or part of the undertaking to be disposed of falls within the provisions of such directive or if the disposal is for operational purposes in the ordinary course of business. Where energy infrastructure is removed, the surface of the land should be restored to its former condition as far as possible by the licensee; failure to do so may result in the restoration being carried out by the owner of the land, with costs recoverable from the licensee. The Energy (Draft Abandonment and Decommission- ing) Regulations are expected to provide further guid- ance on decommissioning generation facilities.
NEMA may issue an environmental restoration order requiring the person on whom it is served to restore the environment as near as it may be to the state in which it was before the taking of the action that is the subject of the order. Any person who fails or refuses to comply with an environmental restoration order com- mits an offence and is liable to imprisonment or a fine. The Scrap Metal Act (Cap. 503) includes a frame- work for the disposal of critical national infrastruc- ture, including physical and virtual assets or facilities related to electricity generation, transmission and distribution. The state entity responsible for the critical national infrastructure is required to dispose of scrap metal from critical national infrastructure to the Numerical Machining complex and the Kenya Shipyard Limited for smelting into billets. Where there is inadequate capacity at either of these facilities, the state entity is required to seek approval to partner with a local smelter. 4. Transmission Lines and Associated Facilities 4.1 Constructing and Operating Transmission Lines and Associated Facilities All laws and legislation referred to in 3.1 Constructing and Operating Generation Facilities are applicable to the construction and operation of transmission facili- ties, alongside the Kenya National Transmission Grid Code. Environment reviews are required, as discussed in 3.2 Obtaining Approvals to Construct and Operate Gen- eration Facilities . 4.2 Obtaining Approvals to Construct and Operate Transmission Lines and Associated Facilities The licence application and approval process is sim- ilar to that described for generation facilities in 3.2 Obtaining Approvals to Construct and Operate Gen- eration Facilities .
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