KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Asssociates
The public participation obligations for generation pro- jects are applicable to power transmission projects. 4.3 Terms and Conditions Imposed on Approvals to Construct and Operate a Transmission Line and Associated Facilities In addition to the general terms and conditions outlined in 3.3 Approvals to Construct and Operate Genera- tion Facilities , a transmission licensee is required to ensure the efficient, reliable and co-ordinated opera- tion of the national transmission system. This includes building, maintaining and expanding infrastructure to meet demand and provide adequate capacity for all authorised users. The licensee must operate the sys- tem in co-ordination with interconnected transmission and distribution networks, and must comply fully with the directions of the system operator. A key obligation is to provide non-discriminatory open access to the transmission network for all licensees and eligible consumers, subject to the payment of fair and approved wheeling or transmission charges. The licensee must also supply relevant information to EPRA, to enable the approval of such tariffs. In addition, the transmission system must be operated and maintained to ensure safe, reliable and economic electricity transmission, including timely repairs and system upgrades where necessary. Under the Energy (Electricity Market, Bulk Supply and Open Access) Regulations, transmission licensees are further required to facilitate the wheeling of bulk elec- trical energy and to support overall system stability and market operations, reinforcing their central role in enabling a competitive and efficient electricity market. 4.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Transmission Lines and Associated Facilities The process is generally similar to that described for generation facilities (see 3.4 Eminent Domain, Con- demnation and Expropriation Rights to Construct and Operate Generation Facilities ). In recognition of the fact that transmission projects often require infrastructure to traverse across multiple parcels of land, transmission licensees are required
to secure rights of way through easements, which grant legal access and usage rights over land strictly for constructing, operating, maintaining and repair- ing transmission facilities. These easements do not transfer ownership; the landowner retains title, subject to restrictions on activities that may interfere with the transmission system. Where transmission lines cross forest land, the pro- cess is governed by the Forest Conservation and Management Act (Cap. 385). Forests in Kenya are categorised as public, community or private, and the requirements for securing rights of way differ accord- ingly. Public forests are managed by the Kenya Forest Service (KFS) and require a formal application detail- ing the purpose, location, size, duration and environ- mental mitigation measures of the proposed project. Upon approval, KFS may issue an easement or way- leave under Section 56, specifying conditions such as conservation obligations and access limits. For community forests, developers must obtain prior consent from the relevant community or its represent- atives. Across all forest categories, compliance with environmental laws is mandatory. In particular, public participation is required during the EIA process, ensur- ing that affected stakeholders are consulted. These requirements reflect Kenya’s broader legal framework, which prioritises environmental protection, sustain- able land use and stakeholder engagement in energy infrastructure development. 4.5 Monopoly Rights to Provide Transmission Services A transmission licensee has exclusive rights to con- struct and operate transmission facilities within a specified geographical territory, subject to the provi- sion of non-discriminatory open access to any licen- see or eligible consumer upon the payment of fair and reasonable transmission or wheeling charges. The exclusive rights are provided for in the transmis- sion licence issued by EPRA, which provides for a specified geographical area of operation. However, the exclusive right is subject to the transmission licen- see providing non-discriminatory open access to its transmission system for use by any licensee or eligible
205 CHAMBERS.COM
Powered by FlippingBook